A little over a year ago, I wrote about the effort to bring medical-review panels to Kentucky. At that time, the Kentucky Senate was considering a bill that would require medical malpractice plaintiffs to submit their claims to an independent panel of experts prior to litigating such claims in Kentucky courts. Such panels were designed to separate truly meritorious claims from meritless claims in an arena in which the intricacies of the standards at issue are rarely clear-cut and often beyond the scope and experience of a standard juror. Supporters argued that medical costs are rising in part due to frivolous malpractice lawsuits, and that panels such as these serve to curb these abuses and protect medical providers from the bad publicity, significant expense, and damage to mental well-being that result from even a groundless suit. Opponents argued that such panels unfairly restrict plaintiff’s access to the court system, and that protections against groundless suits already exist in the system as currently constituted.
The bill being discussed last year did not pass the Kentucky legislature, so the problems identified by the bill’s supporters remain in existence. One of those supporters, the Kentucky Chamber of Commerce, notes that the bill has passed out of Kentucky’s Republican Senate for the past several years, but has “always died” in the Democratic House. With special elections in early March of 2016, it was thought control of the House might change, which might lead to SB 6, this year’s version of the medical review panel legislation, receiving a different outcome. Because those special elections did not transfer control of the House, it is unclear whether this year’s version of the bill will have a result any different than those that have come before it.
The bill itself – this year’s version of the legislation – would require all complaints against health-care providers to be reviewed by a panel, with a new panel being convened for each prospective lawsuit. The statute of limitations would be suspended until 90 days after the panel renders its decision. Each panel would consist of a non-voting attorney that serves as chairperson, and three health-care providers that vote on the outcome.
The panel would promulgate a decision that comes to one of three conclusions: (a) that a failure to comply with appropriate standards was a substantial factor in producing a negative outcome for the patient; (b) that such a failure existed but was not a substantial factor in a negative outcome; or (c) that the evidence does not support the conclusion that there was a failure to meet the applicable standard of care.
Unlike some other versions of this legislation, while consulting the panel is compulsory, the decision itself is not binding on the plaintiff. In other words, an unfavorable decision from the panel does not preclude the plaintiff from bringing his or her suit. With that said, under the right circumstances, the decision could be evidence in that lawsuit. And members of the panel are subject to being called as witnesses in the eventual trial. So a negative decision would certainly impact decision-making on all sides, and may prevent frivolous lawsuits from moving forward; certainly, that’s the goal of the law’s proponents.
The law also proclaims itself to be cost-neutral, with all expenses (including compensation to the panel members and reasonable travel expenses) to be paid by the party in whose favor the opinion is ultimately written.
SB 6 was introduced to the Kentucky Senate in January 2016 and was reported favorably by the Health and Welfare Senate Committee. Amendments are being filed as of this writing. As noted above, it is unclear whether enough parties have been convinced of the law’s necessity and/or efficacy to guarantee passage, but it remains equally evident that the issues raised by the bill haven’t disappeared and don’t appear likely to disappear anytime soon.
-John Pollom is a member at Stites & Harbison in Lexington, Kentucky.