cians to depart from the recommendations in clinical 
practice guidelines, when appropriate, in the care of 
individual patients. 
(5) SELECTION OF MEMBERS.—Each member 
of the panel shall be jointly selected by the parties. 
A member whose selection one party does not concur 
in may not serve on the panel, except that, if, not 
later than 30 days after a response to the health 
care liability action is filed, 3 members have not 
been selected by the parties, the court shall appoint 
any remaining members. 
(6) COMPENSATION OF MEMBERS.—The costs 
of compensation to the members of the panel shall 
be split between the parties equally, unless otherwise 
agreed to by the parties. 
(c) TERMS OF REVIEW.—A review by an independent 
medical review panel under this section shall comply with 
the following: 
(1) STANDARD OF CONDUCT.—The mandatory 
independent medical review panel that is charged 
with the responsibility of making a preliminary find-
ing as to liability of the defendant applicable eligible 
professional shall deem the prescribed clinical prac-
tice guidelines as the standard of conduct, care, and 
skill expected of members of the medical profession 
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engaged in the defendant’s field of practice under 
the same or similar circumstances. 
(2) RECORD FOR REVIEW.—The review panel 
shall make a preliminary finding based solely upon 
the pre-discovery evidence submitted to it pursuant 
to Rule 26 of the Federal Rules of Civil Procedure 
and the applicable prescribed clinical practice guide-
lines. 
(3) LIMITATION.—The review panel shall not 
make a finding of negligence from the mere fact that 
a treatment or procedure was unsuccessful, failed to 
bring the best result or that the patient died. 
(4) USE AT TRIAL OF WORK PRODUCT OF RE-
VIEW PANEL.—No preliminary finding by the review 
panel that the defendant applicable eligible profes-
sional breached the standard of care as set forth 
under the prescribed clinical practice guidelines shall 
constitute negligence per se or conclusive evidence of 
liability. However, said findings, opinions and con-
clusions of the review panel shall be admissible as 
evidence in any and all subsequent proceedings be-
fore the court, including for purposes of motions for 
summary judgment and at trial. 
(d) RESULTS OF REVIEW.— 
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(1) IN GENERAL.—Not later than 60 days after 
all members of the panel have been selected, the 
panel shall complete a review of the record of the li-
ability action and shall make a finding under this 
subsection. 
(2) FINDING DESCRIBED.—A finding under this 
subsection shall include the following: 
(A) A determination of whether or not 
there are any applicable clinical practice guide-
lines to the health care liability action that sub-
stantively pertains to the injury suffered by the 
claimant. 
(B) If the applicable eligible professional 
has alleged adherence to any such guideline. 
(C) If the applicable eligible professional 
did adhere to any such guideline. 
(D) Whether there is a reasonable prob-
ability that— 
(i) the applicable eligible professional 
violated the applicable standard of care; 
(ii) that violation proximately caused 
the claimant’s alleged injury; and 
(iii) the claimant suffered damages as 
a result of the injury. 
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(3) USE
AT
TRIAL.—The finding under this 
subsection may be received into evidence by the 
court. If the panel made any finding under para-
graph (2)(D) that there was no reasonable prob-
ability, the court may issue a summary judgment in 
favor of the applicable eligible professional unless 
the claimant is able to show otherwise by clear and 
convincing evidence. If the panel made a finding 
under subparagraphs (A) through (C) that there was 
an applicable clinical practice guideline that the de-
fendant adhered to, the court shall issue summary 
judgment in favor of the applicable eligible profes-
sional unless the claimant is able to show otherwise 
by clear and convincing evidence. Any preliminary 
finding that the defendant applicable eligible profes-
sional did not breach the standard of care as set 
forth under the prescribed medical practice guide-
lines or that the defendant applicable eligible profes-
sional’s failure to conform to the required standard 
was neither the cause in fact nor the proximate 
cause of the plaintiff’s injury or that the plaintiff 
did not incur any damages as a result shall be given 
deference by the court and shall entitle the defend-
ant applicable eligible professional to summary judg-
ment unless the plaintiff is able to show by clear and 
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convincing evidence that the independent medical re-
view panel was in error and that there is a genuine 
issue as to a material fact in the case. 
SEC. 9. RECOVERY OF COSTS. 
If the defendant applicable eligible professional pre-
vails subsequent to a preliminary finding in his or her 
favor by the independent medical review panel, the defend-
ant may recover costs and attorneys’ fees from the plain-
tiff. 
SEC. 10. DEFINITIONS. 
In this Act: 
(1) APPLICABLE
ELIGIBLE
PROFESSIONAL.— 
The term ‘‘applicable eligible professional’’ means 
physicians practicing within clinical practice guide-
lines submitted by an eligible professional organiza-
tion and includes employees and agents of a physi-
cian. 
(2) APPROPRIATE
USE
CRITERIA.—The term 
‘‘appropriate use criteria’’ means established evi-
dence-based guidelines developed or endorsed by an 
eligible professional organization that specify when 
the health benefits of a procedure or service exceed 
the expected health risks by a significantly wide 
margin. 
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