Malpractice plaintiffs would lose access to some evidence under Senate bill

Injured patients suing their doctors for medical malpractice would lose access to hospital peer reviews of the procedures in question under Senate Bill 18, approved Wednesday by the Senate Health and Welfare Committee.

Sen. Ralph Alvarado, R-Winchester, told the panel that his bill is necessary to allow doctors to offer honest criticism of each other in a private setting without worrying that their words later could be used as evidence in a courtroom.

“Put simply, (peer review) is the mechanism by which doctors who belong to the same hospital police themselves. They need the ability to be brutally honest about each others’ skills in an anonymous setting,” said Alvarado, a doctor.

Most states extend a legal privilege to medical peer review so that someone who sues a doctor cannot subpoena incriminating statements made by colleagues during the review process, Alvarado said.

However, the Kentucky Supreme Court ruled in 1998 that the peer review privilege should not cover medical malpractice actions, the reviews that hospitals perform to discover how a patient was harmed in order to avoid future treatment errors.

Kentuckians have a right under the state constitution to sue for medical malpractice, which raises constitutional concerns about any infringement on their right to collect evidence, the court said.

“Privileges should be strictly construed, because they contravene the fundamental principle that the public has a right to every man’s evidence,” the court said.

Speaking against the bill, Louisville lawyer Paul Casi told the senators about a medical-malpractice case he pursued in which a patient died because of errors made at the hospital by a gastroenterologist. The hospital brought in two outside doctors to review the patient’s death, producing a report that included “overwhelming evidence” of the fatal mistakes that were made, Casi said.

“That was powerful evidence in our lawsuit,” said Casi, the immediate past president of the Kentucky Justice Association. “This kind of information needs to be available so patients can get to the truth.”

Testifying in favor of the bill, another Louisville lawyer, Bradley Case, said malpractice plaintiffs would continue to have access to other kinds of evidence, including their medical records and testimony from doctors and others they subpoena in their cases.

Case, who represents hospitals in malpractice suits, said the bill would only cover documents produced by “the performance-improvement review or peer opinions.”

This story was originally published February 8, 2017 at 11:46 AM with the headline "Malpractice plaintiffs would lose access to some evidence under Senate bill."