Op-Ed

Kentucky Supreme Court must keep legal system open to all

The consequences of medical errors and negligent care can have disastrous, life-shattering consequences for the injured and their families. In fact, medical errors account for a third of all deaths in the U.S.

Oftentimes the only recourse these families have is to file a medical-malpractice lawsuit to cover the cost of past and future care and to compensate for the harm done. Unfortunately, there is a common, unwarranted misconception that most medical malpractice lawsuits are frivolous.

As an attorney representing patients harmed by medical errors, I can tell you that is simply not true.

Studies have shown that only a miniscule number of filed medical malpractice claims are without merit. The reality is that there are both practical and legal barriers to pursuing medical malpractice suits that are very high.

The first line of defense is lawyers like me — most will not file a claim without merit because of the expenses and time associated with litigating these cases. Even the most meritorious medical negligence cases are very difficult and expensive to pursue, and more often than not end with a modest award. To the extent frivolous cases are filed, there are already legal mechanisms in place to weed out these cases, and they never result in compensation for the plaintiff.

The Kentucky Supreme Court recently heard arguments in a medical malpractice case. At issue is the constitutionality of the Medical Review Panel Act (MRPA), a new law that requires all medical malpractice lawsuits to go through a review panel before plaintiffs can file a lawsuit.

Earlier, an analysis of this panel’s records revealed its ineffectiveness — after only a year, the panel has a backlog of hundreds of cases. All the while, injured patients wait.

The MRPA is not only an assault on our ability to hold doctors and healthcare providers accountable when they err or act negligently, but also an affront to Kentuckians’ constitutional right to a jury trial.

A Franklin Circuit Court judge used that reasoning to strike down the law as unconstitutional, writing that “the effect of the medical review panel process is not the reduction of frivolous negligence claims, but rather the erection of barriers to the court system.”

Indeed, under Kentucky’s Constitution, the right to a jury trial cannot be “annulled, obstructed or restricted.”

This review panel and the delays it has caused and will continue to cause if not overturned are a clear obstruction to those seeking justice. It’s already common for these cases to take two or three years to resolve; with the panel in place, they could easily take four or even five years. This isn’t an abstract issue. Real people who are actively suffering from a medical error languish as they wait to get on with their lives.

The MRPA is a duplicative law that wastes resources and creates a chilling effect among victims of medical malpractice. This law is nothing more than an attempt to silence those who have suffered and to further insulate big business and insurance companies from taking responsibility when they harm patients.

The Supreme Court, as it has done before, must uphold our right to seek justice. It’s essential that our courts remain open for every Kentuckian, even those injured by their health-care provider, without barriers created by our legislature that protect only a few.

Kris Mullins is a medical malpractice and personal injury attorney with Morgan & Morgan based in Lexington.

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