PANEL DELIBERATIONS AND DECISIONS

(a) Confidentiality of Panel Deliberations. The deliberations of the Panel are confidential. (b) Questions Panel Must Decide. Upon consideration of all the relevant material, the Panel shall decide whether there is: (1) substantial evidence that the acts complained of occurred and that they constitute malpractice; and (2) a reasonable medical probability that the Patient was injured thereby. (c) Panel Decision. The Panel members shall determine the answer to the questions set forth in this Rule 17, subsections (b)(1) and (b)(2) as follows: (1) Each Panel member shall determine the answers to the questions set forth in this Rule 17, subsections (b)(1) and (b)(2) by answering an anonymous questionnaire containing the two questions; 17 (2) Each Panel member’s completed questionnaire shall be submitted to the Chairperson for tabulation under subsection (3). (3) The Chairperson shall determine the Panel’s decision, based upon the Panel members’ answers contained in the anonymous questionnaires as follows: (i) The Chairperson must first determine whether the Panel members answered “yes” or “no” more often to the question set forth in this Rule 17, subsection (b)(1). If the majority of the Panel members answered “no” to the question set forth in subsection (b)(1), then the Panel decision shall be rendered in favor of the health care provider and the Panel members’ answers to subsection (b)(2) need not be considered in the Panel decision. (ii) If the majority of the Panel members answered “yes” to the question set forth in subsection (b)(1), then the Chairperson must consider the Panel members’ answers to subsection(b)(2). If the majority of the Panel members answered “no” more often to the question set forth in subsection (b)(2), then the decision shall be rendered in favor of the health care provider. (iii) If the majority of the Panel members answered “yes” to the question set forth in both subsections (b)(1) and (b)(2), then the decision shall be rendered in favor of the Claimant. (4) Upon request of any party, the panel members shall briefly explain the reasoning and basis for their determination at the Panel hearing, so long as the request is made prior to the conclusion of the Panel hearing. (5) The Panel shall render a final written decision and the final written decision must contain only the conclusions reached by a majority of its members and must list the number of members, if any, dissenting from the opinion. (6) The final written Panel decision must be signed by the Chairperson prior to concluding the Panel deliberations. (d) Communication, Retention of Panel Decision and Right to Mediation. The Panel’s decision shall be communicated as follows: (1) The Panel’s decision shall be communicated by the office of the Director in writing to the parties, by U.S. mail or electronically; the Panel’s decision shall be served upon the claimant or claimant’s attorney if represented by counsel, by certified mail. (2) A copy of each Panel’s decision shall be retained in the permanent files of the Panel by the office of the Director. A copy of the decision shall be sent to the health care provider's professional licensing board, by U.S. mail or electronically. (e) Admissibility of Panel Decision. The decision and the reasoning and basis for the decision of the Panel is not admissible as evidence in any action subsequently brought in any court of law. (f) Civil Immunity of Panel Members and Witnesses. Panel members and witnesses are immune from civil liability for all communications, findings, opinions and conclusions made in the course and scope of the duties prescribed by the Act. (g) Effect of Decision and Recommendations Permitted. The Panel’s decision is without administrative or judicial authority and is not binding upon any party. The Panel may recommend an award, approve settlement agreements, and discuss the settlement 18 agreements, all in a manner consistent with this part. All approved settlement agreements are binding on the parties. (h) Nonbinding Mediation. Each party must be informed by the Panel of the right to nonbinding mediation under § 27-6-606, MCA. If the Panel decides both questions required by § 27-6-602, MCA, in the affirmative, the court in which the complaint is filed shall, at the request of a party, require the parties to participate in court-supervised, nonbinding mediation prior to proceeding. (i) Maintenance of Records and Confidentiality. The office of the Director shall maintain only the records of all proceedings before the Panel, which must include the nature of the act or omissions complained of, a brief summary of the evidence expressed, the decision of the Panel, and any majority or dissenting opinions filed. Such records shall be maintained for a minimum of ten (10) years. Any records which may identify any party to the proceedings may not be made public and are not subject to subpoena but are to be used solely for the purpose of compiling statistical data and facilitating ongoing studies of medical malpractice in Montana.