Kentucky gearing up for medical malpractice panel system

Kentucky plaintiffs and defendants in medical malpractice cases will soon undergo a new process when a potential lawsuit arises.

It used to be that if you were injured as a result of medical malpractice in Kentucky and wanted to file a lawsuit in court, you could. If a fair settlement could not be reached, the case would be tried before a jury.

Now, lawmakers have added big, new step to the process. Effective June 29, 2017, plaintiffs must first seek the opinion of a panel of "experts" regarding the merit of their claim before they can file it in court. Here, we analyze what that will mean for the landscape of medical malpractice law in Kentucky. Based on experience with similar review panels in other states, this system will add many months, or even years, to the typical medical negligence claim.

The bill

In early March, state legislators passed and the governor signed into law SB4, which establishes the use of these "medical review panels." Each panel would be made up three medical professionals who should be from the same practice area as the defendant, but when there are multiple defendants or a when professional in the same practice area is not available, the panel members could be from other specialties than the defendant. An attorney will chair the panel and provide legal guidance to the members, but will not have a vote in the outcome. The bill applies not only to lawsuits against doctors, but to claims against hospitals, nurses, nursing homes, pharmacists, registered dieticians, physical therapists, social workers, and many other licensed professionals in the healthcare field.

The process

Once the bill goes into effect, a plaintiff must first bring his or her claim before the review panel. The panel will hear evidence in a much more limited form than what would be brought at trial. An important part of any lawsuit is "discovery" - the opportunity for parties to take deposition testimony from witnesses and exchange relevant documents, often into the thousands or tens of thousands of pages. There will be some opportunity for discovery in the panel system, but because of limited time, panelists will not have the same information that a jury would have at trial. Panelists will consider the evidence they have, and then offer an opinion on whether the Defendant breached the standard of care and, if so, whether that negligence caused the plaintiff's injuries. It will take many months to go through this process. However, if the panel has not made a decision after nine months - and we expect the panels will rarely work that fast - the plaintiff can file the case in court without waiting for a panel decision. Even if that happens, though, the panel can choose to issue an opinion later - and probably will, because the panel does not get paid until its opinion is issued!

Even if the panel decides the healthcare provider is not liable for plaintiff's injuries, the plaintiff may move forward with a lawsuit. However, the panel's opinion may be admissible as evidence in court, if the judge determines that the opinion would be assist the jury and that the opinion is admissible under the Kentucky Rules of Evidence. Any party may also call a panelist as a witness at trial.

Possible effects

Advocates for the law got it passed by claiming it would reduce the number of "frivolous" claims that find their way into the court system. In our experience, though, medical negligence claims are so expensive to bring to trial and so difficult to win even when meritorious, that it is the rare lawyer who would file a "frivolous" claim. After all, there have always been sanctions built into our law to punish any lawyer who would do such a thing. Nevertheless, some people claim that the use of the panels will result in lower malpractice insurance premiums (or, in reality, bigger profits for the insurance companies).

However, we worry that this measure will make it even more difficult for plaintiffs who have a legitimate malpractice case to succeed. After all, there is already evidence** that deaths and injuries from medical malpractice far outnumber the lawsuits that are filed. The panel process will make cases take longer to trial and will be even more expensive to prepare. It's also likely that the panel members, who will normally be colleagues of the defendants, will be biased in favor of their friends.

Because so many questions about the panel system are still unanswered in the legal community, it is more important than ever that potential plaintiffs work with experienced medical malpractice lawyers. Anyone who has concerns about this should speak with a medical malpractice attorney in Kentucky. We would be glad to take your call.

**"How Many Die from Medical Mistakes in U.S. Hospitals?" Scientific American, September 20, 2013, available at: http://www.scientificamerican.com/article.cfm?id=how-many-die-from-medical-mistakes-in-us-hospitals