Politics & Government

Kentucky high court rejects medical review panels, clearing way for malpractice suits

Nursing homes: ‘It’s a job that a lot of folks don’t, frankly, want to do.’

State Sen. Ralph Alvarado, R-Winchester, opposes bills that would set minimum staffing requirements for nursing homes because those jobs can be hard to fill. “It’s a job that a lot of folks don’t, frankly, want to do,” Alvarado says.
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State Sen. Ralph Alvarado, R-Winchester, opposes bills that would set minimum staffing requirements for nursing homes because those jobs can be hard to fill. “It’s a job that a lot of folks don’t, frankly, want to do,” Alvarado says.

The Kentucky Supreme Court unanimously struck down Thursday a 2017 law creating medical review panels to limit medical malpractice lawsuits.

In a 34-page ruling, the state’s highest court said the law is unconstitutional because it delays access to the state’s courts for adjudication of common-law claims. The state legislature approved the measure sponsored by Sen. Ralph Alvarado, R-Winchester, and Gov. Matt Bevin signed it into law. Alvarado is a physician.

Bevin, posting on social media, said the court decision was “highly disappointing.”

“With this ruling, the seven members of the state Supreme Court have made it nearly impossible to initiate meaningful tort reform because they have chosen to assume for themselves the authority granted by our constitution to the state legislature,” Bevin said. “As a result, Kentuckians will suffer much more than residents of other states from continued increases in health care costs and doctor shortages.”

Alvarado said he is considering options to deal with the ruling, including a possible constitutional amendment that would let voters decide the issue.

Supreme Court Chief Justice John D. Minton Jr. wrote the ruling. All seven justices agreed to strike down the law, but two issued separate concurring opinions.

“Of all the rights guaranteed by state constitutions but absent from the federal Bill of Rights, the guarantee of a right of access to the courts to obtain a remedy for injury is possibly the most important,” Minton wrote in his opening statement.

The law requires that claims filed against doctors, hospitals, nursing homes, their executives and other health care providers must first be evaluated by panels composed of three medical providers before proceeding in court. The panels’ opinions could be entered as evidence in any subsequent litigation.

Franklin Circuit Judge Phillip Shepherd struck down the law in October 2017, saying it “protects the economic interests of the health care industry at the expense of consumers, with no demonstrable benefit to the public at large.” The case bypassed the Kentucky Court of Appeals, but the circuit court allowed the law to proceed while the case was being appealed.

The law had created a large backlog of several hundred malpractice cases awaiting assignment and review by state-appointed panels before they could proceed to court, while relatively few cases had been decided.

The Kentucky Medical Association said in a statement that it was “extremely disappointed” with the Supreme Court ruling.

“Kentucky now remains one of the few states in the country with no meaningful tort reform, including medical liability reform, making our system more susceptible to higher costs and frivolous lawsuits,” said the KMA.

It said the court “has chosen to uphold the status quo that discourages physician recruitment, inhibits access to quality health care and increases patient costs, while also ensuring that the litigation process for those who have justifiable claims will remain long and complicated.”

Terry Skaggs, chairman of the Kentucky Association of Health Care Facilities, the trade association of nursing and personal care homes, said the Supreme Court ruling was “deeply disappointing..”

“Skilled nursing facilities are already leaving the the Kentucky market and preserving the broken tort system will only exacerbate that trend,” Skaggs said in a statement. “We are concerned about who will care for Kentucky elders in the future — this decision makes it harder for our members to do so at costs families can afford.”

Kentucky’s nursing homes, though, have among the worst collective quality ratings in the nation, according to a Herald-Leader analysis of federal data.

Forty-three percent of Kentucky’s 284 nursing homes this year were rated as “below average” or “much below average” by the U.S. Centers for Medicare and Medicaid Services because of serious problems discovered with the quality of care they provide their roughly 12,500 residents, the newspaper found.

Partnership for Commonsense Justice, a coalition of Kentucky business groups and health care organizations, said it was “stunned” by the court decision.

“Once again, the court has delivered a victory for trial lawyers in spite of Kentucky’s best interests,” the coalition said in a statement. “The medical review panel process would have expedited justice for injured parties by exposing frivolous lawsuits and certifying real injuries.”

The association said the ruling “sends a terrible message to Kentucky’s caregiver community and affirms what has long been true. It’s open season for trial lawyers on Kentucky caregivers.”

The law took effect June 29, 2017, the same day Tonya Claycomb of Breckinridge County filed a lawsuit challenging it in Franklin Circuit Court.

Claycomb is the mother of Ezra Claycomb, who was born in Jefferson County in 2014 and suffered severe birth-related injuries, including brain damage with resulting cerebral palsy.

She claimed in her suit against the Kentucky Cabinet for Health and Family Services that the law denied her right to file a lawsuit in Jefferson Circuit Court asserting medical malpractice and seeking damages.

“Obviously, we are very pleased,” said Frankfort attorney Guthrie True, who is representing the Claycombs. “This opinion will have broad importance to people’s right in courts.”

The ruling, said True, “opens the door” for the Claycombs to proceed with their lawsuit.

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