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FOR IMMEDIATE NEWS RELEASE NEWS RELEASE # 56 FROM: CLERK OF SUPREME COURT OF LOUISIANA The Opinions handed down on the 2nd day of July, 2004, are as follows: BY CALOGERO, C.J.: 2003-C -3436 CURTIS P. MEDINE, INDIVIDUALLY AND MICHAEL BUCK AS TUTOR AND LEGAL GUARDIAN OF JOHN MICHAEL KRAMER, MINOR CHILD OF JANICE BUCK MEDINE v. DR. RICHARD R. RONIGER (Parish of Jefferson) Finding no abuse of the district court's discretion in either his admission of the expert testimony of the medical review panelists or refusal to give the plaintiffs' requested jury charges, we affirm the judgments of the district court and the court of appeal in favor of the defendant, dismissing plaintiffs' claims. AFFIRMED. KIMBALL, J., dissents for reasons assigned by Traylor, J. JOHNSON, J., dissents for reasons assigned by Traylor, J. TRAYLOR, J., dissents and assigns reasons.

07/02/04 SUPREME COURT OF LOUISIANA No. 2003-C-3436 CURTIS P. MEDINE , INDIVIDUALLY AND MICHAEL BUCK AS TUTOR AND LEGAL GUARDIAN OF JOHN MICHAEL KRAMER, MINOR CHILD OF JANICE BUCK MEDINE VERSUS DR. RICHARD R. RONIGER ON WRIT OF CERTIORARI TO THE COURT OF APPEAL FIFTH CIRCUIT, PARISH OF JEFFERSON CALOGERO, Chief Justice This court granted supervisory writs in this medical malpractice case to determine whether certain provisions of the Louisiana Medical Malpractice Act ["LMMA"] contained in La. Rev. Stat. 40:1299.47, relative to medical review panels, prohibit medical review panelists from offering expert testimony on behalf of one of the parties in a trial held after the medical review panel has rendered its decision. Finding no error in the judgment of the lower courts allowing medical review panelists to testify on behalf of the defendant in this case nor any merit in the other assignments of error raised by the plaintiffs, we affirm.

FACTS AND PROCEDURAL HISTORY Plaintiffs in this case are the surviving spouse and minor child of suicide victim, Janice Medine, a patient of defendant, Dr. Richard R. Roniger, who died on December 10, 1990, when she ingested an overdose of medication prescribed by defendant. Pursuant to the requirements of La. Rev. Stat. 40:1299.47(A)(1)(a)1 and
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La. Rev. Stat. 40:1299.47(A)(1)(a) provides as follows:

All malpractice claims against health care providers covered by this Part, other than claims validly agreed for submission to a lawfully binding arbitration procedure, shall be reviewed by a medical review panel established as hereinafter provided for in this Section. 1

(B)(1)(a)(i),2 plaintiffs filed a medical malpractice complaint against defendant, asserting that defendant had breached the applicable standard of care by prescribing improper quantities of medicine in light of Ms. Medine's history of suicide attempts and by failing to monitor Ms. Medine's medication prescriptions properly. The claimants also alleged that Ms. Medine's suicide was caused by defendant's medical malpractice. A medical review panel, composed of Dr. Frederick Henderson, Dr. Clyde Watkins, and Dr. Richard Richoux, was convened in response to plaintiffs' complaint. Following its review of the various documents submitted by the parties, the medical review panel issued a written unanimous expert opinion reflecting its findings that the evidence did not support the conclusion that defendant failed to meet the applicable standard of care as charged by plaintiffs.3 After the medical review panel rendered its decision, plaintiffs filed suit for damages against defendant based on the same allegations considered by the panel. Defendant's "Pre-Trial Order" indicated his intention to call all three of the medical review panelists and designated each panelist as "expert," while plaintiffs' "Pre-Trial

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La Rev. Stat. 40:1299.47(B)(1)(a)(i) provides as follows:

No action against a health care provider covered by this Part, or his insurer, may be commenced in any court before the claimant's proposed complaint has been presented to a medical review panel established pursuant to this Section. The panel listed the following reasons for its expert opinion that defendant did not violate the standard of care: 1. The medication prescribed by Dr. Roniger was necessary and proper for the treatment of this patient. 2. The dosage prescribed was proper. 3. Dr. Roniger properly diagnosed the patient and properly ordered medication for her treatment. 4. The patient had established a pattern of warning the doctor of her suicidal tendencies thereby enabling him to place her in the hospital until the tendencies subsided. 2
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Order" listed the three panelists as witnesses they "might" call and designated each panelist as "Medical panel, cross." As part of their case in chief, plaintiffs' presented the testimony of Dr. Gary E. Miller, who was qualified by the court as an expert in psychiatry and psychopharmacology. Dr. Miller testified to his expert opinion, based on his review of Ms. Medine's medical records, that defendant had violated the standard of care in his treatment of Ms. Medine by altering her medications without first getting the benefit of blood levels. Dr. Miller also stated his opinion that defendant

misdiagnosed Ms. Medine's condition, stating his belief, based on medical records, that she had bipolar disorder. Defendant presented the testimony of Dr. Richoux, one of the medical review panelists he had listed on his Pre-Trial Order as an expert witness. Dr. Richoux was qualified as an expert in the field of general psychiatry without objection from plaintiffs. Dr. Richoux then testified concerning his service as a member of the medical review panel, including questions concerning the vow of impartiality he took when he became a member of the panel. Thereafter, defense counsel asked Dr. Richoux questions related to the expert opinion previously offered by plaintiffs' expert, Dr. Miller. At that point, plaintiffs' counsel objected to Dr. Richoux's expert testimony. Plaintiffs' objection was initially based on the fact that Dr. Richoux had not reviewed Dr. Miller's testimony or his deposition as a member of the medical review panel, as Dr. Miller's testimony had not been submitted to the panel by plaintiffs. Plaintiffs asserted that Dr. Richoux's testimony should be limited to the documents he reviewed at the time the panel met. In support of that argument, plaintiffs cited La.

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Rev. Stat. 40:1299.47(C)(7)4, which describes the role of a medical review panelist in general, and La. Rev. Stat. 40:1299.47(H),5 which describes the procedure after the medical review panel has rendered a decision. Plaintiffs also argued that defendant never identified Dr. Richoux as defendant's independent expert witness. Following extensive arguments on the issue, the district court ruled that Dr. Richoux would be allowed to testify as defendant's expert. In support of his ruling, the district court noted that plaintiffs chose not to share Dr. Miller's testimony with the medical review panel, chose not to depose the medical review panelists prior to trial, and chose not to file a motion in limine to exclude all or part of the testimony of the medical review panelists, despite the fact that the defendant had listed the panelists as expert witnesses without qualification. Following this ruling by the district court, Dr. Richoux answered questions concerning Dr. Miller's criticisms of defendant's treatment of Ms. Medine, disputing each of those criticisms and explaining why the medical review panel did not find that any of defendant's actions
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La. Rev. Stat. 30:1299.47(C)(7) provides as follows:

A panelist or a representative or attorney for any interested party shall not discuss with other members of a medical review panel on which he serves a claim which is to be reviewed by the panel until all evidence to be considered by the panel has been submitted. A panelist or a representative or attorney for any interested party shall not discuss the pending claim with the claimant or his attorney asserting the claim or with a health care provider or his attorney against whom a claim has been asserted under this Section. A panelist or the attorney chairman shall disclose in writing to the parties prior to the hearing any employment relationship or financial relationship with the claimant, the health care provider against whom a claim is asserted, or the attorneys representing the claimant or health care provider, or any other relationship that might give rise to a conflict of interest for the panelists.
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La. Rev. Stat. 40:1299.47(H) provides as follows:

Any report of the expert opinion reached by the medical review panel shall be admissible as evidence in any action subsequently brought by the claimant in a court of law, but such expert opinion shall not be conclusive and either party shall have the right to call, at his cost, any member of the medical review panel as a witness. If called, the witness shall be required to appear and testify. A panelist shall have absolute immunity from civil liability for all communications, findings, opinions and conclusions made in the course and scope of duties prescribed by this Part.

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criticized by Dr. Miller breached the applicable standard of care. Another medical review panelist, Dr. Henderson gave similar expert testimony on behalf of the defendant. Following the trial, the jury returned a verdict in favor of defendant. In jury interrogatories, the jury answered "no" to the following question: "Do you find that Dr. Richard Roniger breached the standard of care for psychiatrists in his treatment of Janice Medine?" The district court thereupon rendered judgment dismissing plaintiffs' claims against the defendant. Plaintiffs appealed, asserting that the district court improperly allowed the medical review panelists to testify as the defendant's own hired, expert witnesses. Plaintiffs also contested the district court's refusal to give two requested jury charges. The court of appeal affirmed the district court judgment dismissing plaintiffs' claims against defendant. In support of its decision, the court of appeal cited the opinion of the Louisiana First Circuit Court of Appeal in Clelland v. Haas, 99-2971 (La. App. 1 Cir. 12/22/00), 774 So. 2d 1243, noting that the Clelland court had addressed the identical issue and found that "there is nothing in [La. Rev. Stat. 40:1299.47(C)(7)] to prohibit medical review panel members from subsequently testifying as an expert for either party at a trial concerning the same medical malpractice claim." Id. at p. 6, 774 So. 2d at 1247. The court of appeal also rejected the plaintiffs' assignments of error based on the district court's refusal to give two requested jury charges. This court granted writs to review the court of appeal decision.6

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Medine v. Roniger, 03-3436 (La. 3/12/04), 2004 WL 765953. 5

EXPERT TESTIMONY OF MEDICAL REVIEW PANELISTS Generally, a district court is afforded great discretion concerning the admission of evidence at trial, and its decision to admit or exclude evidence may not be reversed on appeal in the absence of an abuse of that discretion. Miller v. Southern Baptist Hosp., 00-1352, p. 5 (La. App. 4 Cir. 11/21/01), 806 So.2d 10, 15, writ denied, 01-3379 (La.3/28/02), 811 So.2d 943. In their first assignment of error, plaintiffs essentially argue that the district court abused its discretion by admitting Dr. Richoux's testimony because of the district court's erroneous interpretation and application of the following provisions of the LMMA: La. Rev. Stat. 40:1299.47(C)(5): Before entering upon their duties, each voting panelist shall subscribe before a notary public the following oath: "I, (name) do solemnly swear/affirm that I will faithfully perform the duties of medical review panel member to the best of my ability and without partiality or favoritism of any kind. I acknowledge that I represent neither side and that it is my lawful duty to serve with complete impartiality and to render a decision in accordance with the law and the evidence." La. Rev. Stat. 40:1299.47(H): Any report of the expert opinion reached by the medical review panel shall be admissible as evidence in any action subsequently brought by the claimant in a court of law, but such expert opinion shall not be conclusive and either party shall have the right to call, at his cost, any member of the medical review panel as a witness. If called, the witness shall be required to appear and testify. A panelist shall have absolute immunity from civil liability for all communications, findings, opinions and conclusions made in the course and scope of duties prescribed by this Part. La. Rev. Stat. 40:1299.47(I)(1)(a): Each physician member of the medical review panel shall be paid at the rate of twenty-five dollars per diem, not to exceed a total of three hundred dollars for all work performed as a member of the panel exclusive of time involved if called as a witness to testify in a court of law regarding the communications, findings, and conclusions made in
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the course and the scope of duties as a member of the medical review panel, and in addition thereto, reasonable travel expenses. According to plaintiffs, the above articles, when read together, limit the testimony of a medical review panelist corroborating or disputing the panel's expert opinion. According to plaintiffs, the admission of the medical review panel opinion and the testimony of panelists at trial is intended to be viewed as a single "package" from an impartial source. Plaintiffs claim that allowing the panelists to testify as defendant's paid experts broke up the package and caused confusion on the part of the jurors. We find no merit in the plaintiffs' arguments based on the above-quoted provisions. In fact, we find that the statutory provisions cited by plaintiffs not only allow medical review panelists to testify on behalf of a party as paid experts, but that they actually contemplate that panelists will testify more often than not in that manner. La. Rev. Stat. 40:1299.47(H) specifically provides that "either party shall have the right to call, at his cost, any member of the medical review panel as a witness." Further, La. Rev. Stat. 40:1299.47(I)(1)(a) prescribes payment of medical review panelists for their work performed as members of the panel, and not for payment of panelists for their testimony in a court of law, the latter in keeping with the requirement of La. Rev. Stat. 40:1229.47(H) that the party calling the panelist must pay for his or her testimony. Moreover, even if we agreed with plaintiffs' argument that the testimony of medical review panelists should be limited to corroboration or disputation of the panel majority's expert opinion in a given case, the testimony given by the panelists in this case did not exceed that limitation because, in our view, corroboration of the panel's opinion includes defending that opinion from contrary opinions. In this case,

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one of the plaintiffs' primary complaints is that the panelists should not have been allowed to comment on the criticisms of defendant's treatment of Ms. Medine raised by plaintiff's expert. Indeed, we find that the panelists' comments concerning the criticisms of defendants' treatment of Ms. Medine by plaintiffs' expert were part and parcel of their testimony corroborating the panel's opinion that defendant did not violate the standard of care. Thus, the written report of the medical review panel and the trial testimony of the panel members were presented as part of a single "package," as plaintiffs claim they should be. Moreover, allowing medical review panelists to testify at subsequent medical malpractice trials as expert witnesses assures the plaintiff of an expert in those cases where the panel has found that the defendant did violate the appropriate standard of care. In further support of their arguments, plaintiffs also quote language from this court's decision in Galloway v. Baton Rouge General Hosp., 602 So. 2d 1003 (La. 1992) to the effect that the medical review panel opinion is admissible, crucial evidence "both in the form of their report and their trial testimony." However, the plaintiffs' reliance on Galloway is misplaced for at least three reasons. First, the language quoted is excerpted from this court's favorable quotation of a dissenting opinion by a court of appeal judge, and is not strictly this court's holding in the case. Id. at 1006. Second, the excerpt selected by the plaintiffs omits language also quoted by this court to the effect that panelists may change their individual opinions after the panel's written expert opinion has been rendered and testify to their changed opinion at trial, so long as the panel's initial opinion is also presented for consideration. Id. at 1006-07. Third, the issue considered in Galloway was whether the district court had properly excluded prior testimony of the medical review panelists who had later changed their position

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