The Kentucky House will get a Senate bill that would establish “medical review panels” to intervene in malpractice or neglect lawsuits, with changes that its supporters hope will help it survive a constitutional challenge.
Under the bill, suits filed against doctors, hospitals, nursing homes or their executives would have their merits evaluated by panels composed of three medical providers before they could proceed in court. The panels’ opinions could be entered as evidence in any subsequent litigation.
“Right now, Kentucky has one of the nation’s most litigation friendly environments, making our commonwealth a prime and profitable target for personal injury lawyers, most of them from out of state, preying upon our health care providers,” Alvarado told the House panel.
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However, Alvarado acknowledged Tuesday that his bill likely would be challenged if it’s signed into law. The Kentucky Supreme Court has ruled that Kentuckians have a right under the state constitution to sue for medical malpractice.
So Alvarado worked with Republican state Rep. Jason Nemes, a Louisville lawyer, to make several changes to his bill for the House committee.
Among them: To avoid interminable delay, the panel would have to hand down its opinion in nine months or else the suit could proceed in court; plaintiffs and defendants would jointly pick a lawyer from the region to serve as the panel’s non-voting chairman; and, unlike in the original bill, the panel’s opinion would not automatically be admitted into court as evidence. Instead, the trial judge would be asked to decide.
“The Senate’s version said (the opinion) would always be admissible. I was uncomfortable with that,” Nemes explained after the hearing. “So we’ve kicked it to the judges to allow them to make the decision whether the panel determination should be admitted or not.”
Some lawmakers were unsatisfied with the changes. Rep. George Brown Jr., D-Lexington, said he is skeptical of a panel of doctors getting to judge their own while injured patients are unrepresented in the process.
“Not every lawsuit is frivolous,” Brown told Alvarado. “And as you mentioned in your comments, Dr. Alvarado, our responsibility is to the frail and to the weak and to the elderly. And there are seriously some horror stories out there.”
The sum awarded in medical malpractice claims is on the decline in Kentucky, dropping from $61 million in 2005 to $41 million in 2015, according to the National Practitioner Data Bank. But Alvarado has said those totals don’t reflect the many suits that are either settled or dismissed, driving up insurance costs for the medical community.
Alvarado is sponsoring a separate measure, Senate Bill 18, that would block access to hospital peer reviews for injured patients suing their doctors for malpractice. That bill awaits a hearing in the House Judiciary Committee.