Mont. Med. Legal Panel R. 6

(a) Claims Subject to Rules. These Rules shall apply to all malpractice claims arising from

a health care provider’ s acts and/or omissions, unless the claim is the subject of a valid

arbitration agreement under the Uniform Arbitration Act, at § 27-5-111, et seq., MCA, where

the agreement to arbitrate was signed after the alleged incident occurred.

(b) Claim Made Prior to Filing of Lawsuit. Prior to filing a complaint in any State District,

Justice Court, or any Federal District Court in Montana, in which a malpractice claim is

asserted, Claimants shall submit a case for consideration of the Panel. No malpractice claim,

to which the Act is applicable, may be filed in any such court against a health care provider

before an Application is made to the Panel and its decision rendered.

(c) Notification to Panel of Lawsuit Filed in Violation of Act. If a complaint has been filed

in any such court prior to the filing of an Application before the Panel, the Claimant, at the

time of filing an Application with the Panel, shall notify the Panel of such fact by providing

to the Panel a conformed copy of the complaint and a conformed copy of any order related to

the submission of the claim to the Panel, along with a brief report as to the status of the case.

(d) Filing Case with Panel. Claimants shall submit a case for consideration of the Panel by

delivery of a completed Application in writing and signed by the Claimant or his or her

counsel, by certified mail, to the office of the Director. Applications may also be filed in

person at the office of the Director.

(e) Effect of Electronic Filing. Copies of Applications also sent electronically to the office

of the Director and actually received by the office of the Director shall be shown as received

by the Panel on the date of the electronic receipt, in order to preserve the statute of

limitations, and a paper copy of the electronic Application shall be placed in the claim file

along with the certified copy Application. The use of such a procedure shall not relieve a

party from the requirements of subsection (d) of this Rule 6.

(f) Form of Application. The Application shall be made on the Application Form provided

by the office of the Director, or by a separate legal pleading as permitted in the Application

Form, and must be signed by the Claimant or his or her counsel. Any Application made must

include the following:

(1) A statement in reasonable detail containing:

(i) the elements of the health care provider’s conduct that are believed to constitute a

malpractice claim,

(ii) the dates the conduct occurred,

(iii) the names and addresses of all persons having knowledge of any facts relating to

the claim or defense to it,

(iv) the names and addresses of all physicians, dentists, podiatrists, hospitals, health

care facilities or other persons or entities (whether named as parties to the claim or not) who

have possession, custody, or control of any medical, dental, podiatric, hospital or health care

facility records (such as imaging studies) or other such information pertaining to the claim,

and

(v) a declaration of whether or not the Claimant would be willing to stipulate to

permitting health care provider panelists to attend the Panel Hearing from a distant location

within the state of Montana by way of web based communications arranged by the office of

the Director.

(2) An authorization for release of health care information, compliant with the

requirements of the Health Insurance Portability and Accountability Act of 1996 (HIPAA)

and applicable Montana law, signed and dated by the Patient or the Patient’s legally

authorized personal representative (“Authorization”), on the Authorization Form provided by

the office of the Director (“Authorization Form”), for each health care provider involved in

or with knowledge about the malpractice claim (whether a party to the claim or not).

(g) Authorization Form. The Authorization Form shall authorize the Panel to obtain access

to all medical records and information pertaining to the claim and, for purposes of its

consideration of the matter only, which includes distribution of such records only to the

health care providers named in the claim before the Panel or their respective counsel and the

Panel members reviewing the claim, waiving any privilege as to the contents of those

records. The authorization may not in any way be construed as waiving the Patient’s

confidentiality for any other purpose or in any other context, in or out of court, nor is this

Rule intended to provide for discovery of information which would be privileged or

otherwise beyond discovery, pursuant to Rule 26(b)(4)(B) of the Montana Rules of Civil

Procedure.

(h) Authorized Representative Claimant Must Provide Documentation. A Claimant who

is the legally authorized representative of a Patient, other than a Claimant who is the parent

of a minor child, must provide the legal documentation appointing the Claimant as the

authorized representative of the Patient as part of the Application. An Application made by a

Claimant who is not also the Patient will not be considered complete and will not be

transmitted until that legal documentation is provided to the office of the Director showing

that the Claimant is the legally authorized representative of the Patient.

(i) Failure to Execute Authorization Form Constitutes Good Cause. If a Claimant fails or

refuses to execute the Authorization Form or revokes his or her consent for the Panel to

obtain access to all medical records and information pertaining to the claim, that failure or

refusal shall constitute good cause for the Director to extend the time period for the hearing,

which is set forth in the Act and described, below, in Rule 13(c).

(j) Claims Made Against Employees of Health Care Providers. Any claim against an

employee of a health care provider, who is other than a health care provider as defined in

Rule 1, shall be brought only by naming the employer as a party before the Panel.

(k) Completed Application. For purposes of this Rule 6, a completed Application shall be

one which is in compliance with subsections (f) through (h) of this Rule 6. If a Claimant

revokes the consent to obtain the Patient’s medical records and health care information,

required as part of the Authorization Form provided pursuant to subsection (g), the

Application shall not be a completed Application.

(l) Notification of Health Care Provider. Upon receipt of a completed Application, the

Director shall notify the health care provider of filing of the claim and furnish the health care

provider a copy thereof.

(m) Amendment of Applications. The following subsections govern the amending of

Applications:

(1) Applications may be amended as follows:

(i) A Claimant may amend the Application as a matter of course within twenty (20)

days of the receipt of the Application by the Panel. After the expiration of twenty (20) days,

a Claimant may only Amend the Application by approval of the Director, or the Chairperson,

if one is selected; or

(ii) The Director or, the Chairperson, if one has been selected, may, upon his or her

own initiative, or upon the written request of the health care provider, require the Application

to be amended in order to provide additional details of the claim. Amendments made

pursuant to a request by the Director or the Chairperson must be delivered to the Director

within twenty (20) days of receipt of the request.

(2) Amended Applications must be delivered to the office of the Director.

(3) In the event an amended Application is filed less than thirty (30) days prior to hearing,

upon request of the Director, the Chairperson or health care provider, the hearing may be

continued by the Director or the Chairperson, without a request from a party, or may be

continued pursuant to the request of a party upon a showing of good cause and as required by

Rule 13(d) of these Rules.