RULE 38(h): Start Your Clock

Week of February 20, 2012

It's no mystery that the Panel QME process is cumbersome and is wrought with timelines. Many are learning of the power of Rule 38(h) specifically.

Rule 38(h) states "The time frame for supplemental reports shall be no more than sixty (60) days from the date of a written or electronically transmitted request to the physician by a party."

Violating this rule allows the aggreived party to seek a replacement panel under Rule 31.5(a)(12). Under that Rule, teh aggreived party may petition for a replacement panel if the supplemental report is not issued within the timeframe.

However, Rule 38(h) is not entirely clear on whether the supplemental report merely needs to be dated within 60 days from the date of request or if the parties must receive the report from the requested date.

Nevertheless, it would seem to make sense to diary the date of the request and send another letter to panel doctor if the sixtieth day approaches. This may start the 60 day clock again, or at least afford the party asserting it that position.

We would like to hear about your comments. Please email them to jshiu@acs-lawfirm.com.

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