§671-12.5 Certificate of consultation. (a) Any inquiry filed with the medical inquiry and conciliation panel under this chapter shall be accompanied by a certificate that declares one of the following:

(1) That the party initiating the inquiry or the party's attorney has consulted with at least one physician who is licensed to practice in this State or any other state, and who is knowledgeable or experienced in the same medical specialty as the health care professional against whom the inquiry is made, and that the party or the party's attorney has concluded on the basis of the consultation that there is a reasonable and meritorious cause for filing the inquiry. If the party initiating the inquiry or the party's attorney is not able to consult with a physician in the same medical specialty as the health care professional against whom the inquiry is made, that party or the party's attorney may consult with a physician who is licensed in this State or in any other state who is knowledgeable and experienced in a medical specialty that is as closely related as practicable to the medical specialty of the health care professional against whom the inquiry is made. The physician or physicians consulted may not be a party to the inquiry, nor be compelled to testify or otherwise participate in proceedings related to the medical inquiry and conciliation panel;

(2) That the party initiating the inquiry or the party's attorney was unable to obtain the consultation required by paragraph (l) because a statute of limitations would impair the action and that the certificate required by paragraph (1) could not be obtained before the impairment of the action. If a certificate is executed pursuant to this paragraph, the certificate required by paragraph (1) shall be filed by the party initiating the inquiry or the party's attorney within ninety days after filing the inquiry; or

(3) That the party initiating the inquiry or the party's attorney was unable to obtain the consultation required by paragraph (1) after the party or the party's attorney had made a good faith attempt to obtain the consultation and the physician contacted would not agree to the consultation. For purposes of this paragraph, "good faith attempt" refers to the responsibility of a party initiating an inquiry or the party's attorney to make reasonable efforts to contact a physician for the purpose of reviewing the circumstances upon which an inquiry is based. The party initiating the inquiry or the party's attorney may contact physicians by letter, telephone, facsimile, or other electronic means of communication. If the physician does not respond within a reasonable time, the party initiating the inquiry or the party's attorney may submit the inquiry to the medical inquiry and conciliation panel along with a certificate declaring the nonresponse to the party or the party's attorney's good faith attempt. A "good faith attempt" shall ultimately be evaluated in light of the goal of having a qualified physician assist the party initiating the inquiry or the party's attorney in understanding the basis of the inquiry and the determination shall depend upon the circumstances of each individual case.

(b) Where a party initiating an inquiry or the party's attorney intends to rely solely on a failure to inform of the consequences of a procedure (informed consent), this section shall be inapplicable. The party initiating an inquiry or the party's attorney shall certify upon filing of the inquiry that the party or the party's attorney is relying solely on the failure to inform of the consequences of a procedure and for that reason is not filing a certificate as required by this section.

(c) For the purposes of this section, the party initiating an inquiry or the party's attorney shall not be required to disclose the names of any physician consulted to fulfill the requirements of subsection (a) to any of the other parties to the inquiry. The medical inquiry and conciliation panel may require the party initiating an inquiry or the party's attorney to disclose the name of any physician consulted to fulfill the requirements of subsection (a). No disclosure of the name of any physician consulted to fulfill the requirements of subsection (a) shall be made to any of the other parties to the inquiry; provided that the medical inquiry and conciliation panel may contact the physician to determine if the requirements of subsection (a) were met.

(d) Unless a certificate is filed pursuant to subsection (a) or (b), the inquiry shall not be received for filing by the medical inquiry and conciliation panel. [L 2003, c 211, §1; am L 2012, c 296, pt of §4]