Lawsuits against doctors or health care institutions and their executives would have their merits evaluated by panels of medical providers before they could be filed in Kentucky courts under a measure approved Wednesday by the Senate Health and Welfare Committee.
Earlier versions of the bill passed the Republican-led Senate in previous years but died in the Democratic-led House, where lawmakers argued for Kentuckians’ right to be compensated for medical errors. However, with the GOP now in control of both chambers, the measure’s chances appear much stronger.
The amount of money awarded in medical malpractice claims already is on the decline in Kentucky, from $61 million in 2005 to $41 million in 2015, according to the National Practitioner Data Bank. But Alvarado says those totals don’t reflect the many suits that are either settled or dismissed, driving up costs for the medical community.
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“I know of one Louisville law firm that has filed at least 100 nursing home lawsuits and settled most of them,” Alvarado said after the hearing.
“To take that to court and fight it costs more than to just settle it. But now the legal climate in Kentucky has become so toxic that doctors practice defensive medicine just to protect themselves. They order tests they never would have before just to cover themselves, and the cost of medical care is going up as a result,” Alvarado said.
Under SB 4, proposed medical malpractice or neglect lawsuits first would be submitted to the state Cabinet for Health and Family Services. A four-member panel would be chosen to review written evidence related to the claim. The panel would include three medical providers and a lawyer acting as chairman but not voting.
Within six months of the panel’s selection, it would be expected to issue an opinion about the claim’s merits. The members could find that the medical providers did no wrong, or that they erred but did not substantially harm their patient, or that they did cause harm to their patient.
The panel’s opinion would be admissible as one piece of evidence in any subsequent lawsuit in court. Fees to compensate the panel for its work, which could amount to a few thousand dollars, would be paid by the party in whose favor the opinion was written.
Three Democrats on the committee opposed the bill, including Sen. Reginald Thomas of Lexington.
“I vote no, because I believe that every citizen in this commonwealth should have access to the courthouse door. Every citizen should have the right to be heard,” Thomas said. In states that have enacted review panels, Thomas added, plaintiffs have seen up to a two-year delay before they could get their claim into court.
Sen. Tom Buford, R-Nicholasville, voted for the bill, but he expressed concern with panels made up entirely of doctors reviewing lawsuits against doctors and their employers.
Addressing this concern, Alvarado later said that medical review panels in Indiana have sided with plaintiffs about 20 percent of the time despite being filled with doctors.
“The truth is, doctors can be pretty brutal with each other when we feel someone is failing on professional standards,” Alvarado said.