Dr. Andrew H. Henderson: Meritless lawsuits weaken health care

March 3, 2014 

  • At issue: Jan. 19 commentary by Jan Scherrer, "Bill for medical review panel blocks our access to courts"

Facts can be pesky things if they don't support your argument. Apparently, that is a lesson opponents of medical liability reform in Kentucky are finding out.

There's one critical fact about Senate Bill 119 — the medical liability reform law — that everyone should understand. If you have a legitimate claim against a care provider, you have nothing to fear from this bill. It will not deny or delay your claim.

In fact, it ensures that an independent panel of medical experts is going to back you up. Under no circumstances can a medical review panel stop a claim from going to court.

Unfortunately, opponents of SB 119 have a hard time telling the truth about what is actually in the bill. They do this because the truth will sink the scheme they have set up whereby they treat Kentucky health-care providers like personal ATMs.

SB 119 offers a simple reform by implementing a medical review panel process to evaluate claims against care providers. Within six months, the panel would render an opinion on whether the standard of care was breached. The opinion is not legally binding and any claim, regardless of the panel's outcome, may still proceed to court.

Meritless claims are exposed and legitimate claims are strengthened and expedited.

The real question is why anyone would fear an independent expert review of a claim. Of course, we know the answer — because while this bill would help the legitimately injured person, it would also expose the most frivolous claims and subject our out-of-control trial attorneys to some actual sunshine.

When my peers and I at the Kentucky Medical Association joined the Care First Kentucky coalition to support these reforms, we expected opposition. We didn't expect to have the integrity of our entire profession called into question.

I have been a doctor for 37 years, and in that time I've worked with many nurses, medical professionals and other caregivers who care deeply for the patients they serve. To be sure, as is the case in any profession consisting of a human work force, some caregivers are better than others.

But I can assure you the vast majority are noble and dedicated individuals. They should be thanked and respected for their service, not derided and defamed by those who seek to line their own pockets at the expense of good people.

In her recent commentary, Jan Scherrer not only attacks SB 119 but also wants you to believe that Kentucky caregivers are intentionally doing harm to their patients — an insult to caregivers everywhere. She should be ashamed for making such reprehensible, dishonest statements.

Kentucky's broken medical malpractice system extends far beyond nursing homes, impacting every health-care provider and facility. Kentucky has unjustly become the target for out-of-state law firms looking to get rich off of our flawed system. The facts do not lie:

A 2009 study by the American College of Emergency Physicians found Kentucky's medical liability climate keeps emergency room doctors from relocating to our state.

In 2012, the Kentucky Department of Insurance found that 415 claims against health care providers resulted in an astounding $96.3 million in settlements.

A 2013 independent study by AON Risk Solutions found that Kentucky's long-term care facilities face the worst environment in the nation for long-term care litigation.

A 2011 study supported by the RAND Institute for Civil Justice and the National Institute on Aging found that 75 percent of all physicians in low-risk specialties face a medical malpractice claim by the time they are 65 years old. In high-risk specialties, it jumps to 99 percent.

When you have these statistics showing that virtually every physician will eventually be sued, I don't know how anyone can argue with a straight face that there's no such thing as a meritless medical malpractice claim.

Medical malpractice cases — won, lost, settled or dismissed — are incredibly expensive for providers to defend. Even a ridiculous claim, such as a recent case where a Kentucky nursing home with no stairs was sued by a patient who supposedly fell down these nonexistent stairs, can take thousands of dollars to dismiss.

Fighting these claims and paying inflated liability insurance rates puts provider practices and facilities in danger and is a major factor in Kentucky's well-documented provider shortage. This must stop.

I implore those who oppose this legislation to stick to the facts and urge the Kentucky General Assembly to pass SB 119.

Dr. Andrew H. Henderson of Lexington provides services in general internal medicine, geriatric medicine and immunizations.

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