Kentucky’s effort to screen medical malpractice claims falls flat

August, 5th 2018 – Andrew Wolfson, The Courier Journal

A Republican-backed law that requires Kentuckians to submit malpractice claims to a review panel before they can file lawsuits has produced a morass of delay in its first year on the books.

Only 11 percent of 531 claims have been assigned to a panel and findings have been issued in just 3 percent, according to figures obtained from the state by the Courier Journal under the Kentucky Open Records Act. Another 5 percent were withdrawn, settled or dismissed.

Proponents, led by House and Senate Republicans, touted the Medical Review Panel Act approved in 2016 as a way to reduce frivolous litigation and cut the cost of liability insurance for providers; Gov. Matt Bevin’s administration called it “the first step toward tort reform.”

More: Are medical malpractice review panels needed or just unconstitutional?

Doug Hogan, a spokesman for the Cabinet for Health and Family Services, which runs the program, insists it is working because there are “hundreds of cases in various stages of review before the panels.”

But even lawyers who defend doctors, hospitals and nursing homes say the process so far has been ineffective.

“I’m not going to deny that the numbers aren’t good and it is an imperfect law,” said Betsy Johnson, president of the Kentucky Association of Health Care Facilities, which represents nursing homes.

A review of the act published on the website of Lexington defense firm Sturgill, Turner, Barker & Moloney said few doctors and other health care professionals – who are supposed to serve on the panels – know about the law, and those who do are reluctant to serve.

Lawyers who represent injured people offer an even harsher assessment.

William McMurry, who also represents plaintiffs, said the mandatory review panels are likely to stretch out resolution of medical malpractice cases from an average of two years to three or four.

“The cliché is true: Justice delayed is justice denied,” he said.

Others say it’s too early to judge whether the law will be effective.

Franklin Circuit Judge Phillip Shepherd struck down the act last October, saying it violated 13 sections of the Kentucky Constitution.

“The effect of the medical review panel process is not the reduction of frivolous negligence claims, but rather the erection of barriers to the court system,” Shepherd wrote.

But the Court of Appeals allowed the law to go into effect while the state Supreme Court decides if it is legal. Arguments are set before that court at 10 a.m. Wednesday. A ruling is expected in a couple of months.

Under the law:

  • People with claims must submit them to a panel, unless both sides agreed they can go straight to court.
  • Each panel consists of a lawyer who serves as non-voting chairman and three health care professionals who do vote.
  • Doctors and other professionals must serve if asked, unless they can show good cause why they cannot, and they are paid a flat $300.
  • After reviewing the evidence, the panel decides if the defendant violated the standard of care in their field, and if that negligence caused an injury.
  • The opinion isn’t binding. Claimants can still file suit if the panel rules against them or issues no finding after nine months. But the opinion can be used in court and the panelists called to testify.

Besides physicians, hospitals and nursing homes, the law also covers dietitians, podiatrists, EMS providers, dentists, dental hygienists, social workers, medical laboratories and speech language pathologists.

Nearly two-thirds of the states once required such panels, University of Delaware law school professor Jean Eggen wrote in a 2013 article. But that number has dropped to 17, including Indiana, according to the National Conference of State Legislatures. Some laws were struck down by state high courts while other states abandoned panels because they took too long, Eggen wrote.

The Pew Charitable Trust said in a 2003 report that the panels increase overall litigation costs; cause significant delays; have no consistent impact on claim amounts paid; have no consistent effect on premiums; and may encourage filing of claims.

Supporters in Kentucky say the panel law needs more time.

“Any major policy change like the medical review panel process certainly takes time to implement, and it was expected that there would be hiccups,” said Patrick Padgett, executive vice president of the Kentucky Medical Association. Padgett said the association is working to educate doctors on the law and their duty to serve on panels.

Brian Brezosky, general counsel for the Kentucky Hospital Association, said Shepherd’s ruling “put a cloud over the process” and that participants are not “buying in as if this was a settled issue.”

Johnson, who heads the nursing home group, called the law a “step in the right direction,” though she said the only way to really reduce meritless cases and cut litigation costs is to cap damages.

Indiana, for example, limits damages to $1.65 million. In Kentucky, a cap would require a constitutional amendment, and a bid to put one on the ballot failed in the General Assembly earlier this year.

Other advocates of review panels say plaintiffs’ lawyers are deliberately stalling in hopes the Supreme Court will declare the law unconstitutional.

The Cabinet for Health and Family Services, which administers the program, did not respond to a request for comment.

Some attorneys, including Louisville’s Gerald Toner, who defends doctors and hospitals, say that the panel law has actually increased meritless claims.

He said that is because younger lawyers without medical malpractice experience file claims with panels to see if they have a case. Previously, they would have been more likely to refer them to experienced counsel, who would realize they had no case and elect not to file a lawsuit, Toner said.

“I am seeing plaintiff’s attorneys whose names I’ve never heard before,” said Toner’s partner, Donald K. Brown Jr.

Andrew Wolfson: 502-582-7189; awolfson@courier-journal.com; Twitter: @adwolfson.  Support strong local journalism by subscribing today: www.courier-journal.com/andreww