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Kentucky’s tort reform: impact on medical malpractice victims

Kentucky’s Supreme Court heard oral arguments in August on a case seeking to overturn a lower court ruling which found the Medical Review Panel Statute unconstitutional. The case has major repercussions for those injured by medical malpractice, because if overturned it will increase costs, create delay, and limit due process protections.

KRS 216C et seq.

The law establishes a mandatory medical review process to screen medical malpractice claims, which legislators blame for rising insurance premiums and a shortage of physicians in the state. Prior to bringing a malpractice claim against a doctor or a healthcare institution in court, the injured must submit their complaint to the panel, which is a branch of the Cabinet for Health and Family Services.

Those challenging the law argue the State has discriminated against medical malpractice victims by placing them at a disadvantage compared to other similarly situated tort plaintiffs, because the review requirement does not apply to a wrongful death or personal injury claimant. It is also argued that the law unfairly favors the rights of physicians over victims.

What is the medical review panel and what does it decide?

The panel consists of three currently licensed healthcare practitioners and one attorney. The healthcare panel members are entitled to vote, and the attorney chairs the committee by controlling the process. The panel answers two questions: Did the healthcare professional violate the medical standard of care? If yes, did that violation contribute to the negative outcome of the injured? Two votes out of three are needed to issue a decision. Whomever the panel rules in favor of has to pay costs, but if the case proceeds to trial, the panel members can be called as expert witnesses which is paid for by the requesting party.

Impact to medical malpractice victims

The structure and procedure of the panel raises serious concerns:

  • The broad definition of the term ‘healthcare provider’ under the statute is not limited to physicians, including professions such as dental assistants, pastoral counselors and social workers.
  • Panelists need not practice in the same field as the accused provider, thus situations in which a social worker is reviewing a surgeon’s standard of care is entirely possible.
  • By requiring panel review, the law unconstitutionally limits immediate access to the courts. If the panel takes longer than nine months, the injured can file in court, but the panel’s decision will still be issued and admissible in any ongoing court action and subsequent appeal, including the ability to call panelists as expert witnesses. This interference places the finality of a court decision into question. It also complicates tolling the statute of limitations for the injured.
  • Lack of procedural protections against bias and conflict of interest for those on the panel and the chairperson.
  • The panel lacks defined legal standards to rely upon when making decisions. Panelists simply answer ‘yes’ or ‘no’ on whether the standard of care was violated, and whether that contributed to the victim’s harm (causation). The legal burden of proof is not defined. Furthermore, by evaluating the facts of the case the panel takes on the responsibility delegated to that of the jury in our legal system.
  • The panel relies on an incomplete evidentiary record due to limited methods of discovery and timelines.
  • Injured persons are unable to challenge instruction provided to the panelists by the attorney chair when issuing the decision.

The bottom line is that this method of tort reform limits immediate access to courts, due process and burdens injury victims with additional costs and delay.

Are frivolous malpractice claims really driving up healthcare costs?

Kentucky legislators claim frivolous medical malpractice cases are a problem. However, data collected by the court system and organizations tracking national trends on malpractice allegations and resulting insurance payouts show the opposite: payouts and filed malpractice cases have decreased in Kentucky since 2008. Therefore, if these claims are responsible for rising insurance premiums, costs should have decreased. Alarmingly, data shows rates of preventable medical error far outpaces medical malpractice litigation. Additionally, Kentucky has more active physicians now than it did in 2007. Overall, these facts suggest the legislative basis justifying the need for the panel is flawed.

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