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 Another 5 percent were withdrawn, settled or dismissed.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, lead by House and Senate Republicans, touted the Medical Review Panel Act approved in 2016 as a way 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.”
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.
“The delays aren’t fair to the citizens of Kentucky, many of whom may have been catastrophically injured or killed by negligence and whose families may need resolution of their claim in order to survive,” said Louisville attorney Hans Poppe.
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.