Kentucky’s experiment with “medical review panels” ended in November after the Kentucky Supreme Court unanimously declared them to be unconstitutional. Medical review panels add a step to malpractice lawsuits, requiring that cases are first evaluated by a panel before a claim can be filed. The justices found review panels to be incompatible with the right of Kentuckians to access the court system without delay.
In response, Sen. Ralph Alvarado has said he is considering an amendment to the state Constitution to establish medical review panels. This action would require approval from voters.
With the fight over review panels likely to reignite, citizens need to understand both the basics of the medical-malpractice system and arguments made by proponents of review panels.
Review of claims of medical harm is already part of the system. A malpractice lawyer will agree to represent an injured patient only if a preliminary investigation supports all three conditions: harm occurred to the patient, the care provided was negligent, and the harm was caused in large part by negligent care.
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After a claim is filed, pre-trial discovery begins: The two sides exchange information and take testimony from people involved in the incident and from medical experts. Based on this information, plaintiffs may realize they do not have a solid case and will choose to drop it. Or plaintiff and defendant(s) may choose to settle. Occasionally both sides will feel they have strong evidence, and the case proceeds to trial.
So what arguments are made to justify adding medical review panels?
▪ Medical-malpractice lawsuits take too long to resolve. Review panels will speed up the process by encouraging cases to be dropped or settled.
Rebuttal: Medical review panels add an additional step (and delay) to lawsuits. A better bet for shortening lawsuits is to be honest with patients about harm. This information will help to shorten pre-trial discovery, and in some cases lawsuits can be avoided.
▪ There are too many frivolous lawsuits. Review panels will weed out cases that lack merit.
Rebuttal: Lawyers representing plaintiffs are very selective in accepting cases because most work on contingency fees (meaning they only receive payment if there is a settlement or award). Because insurance companies vigorously fight all cases, lawyers who file meritless lawsuits will be driven out of business. The danger is that review panels will discourage legitimate cases.
There is no evidence that review panels can assess evidence more accurately than existing pre-trial discovery and trial mechanisms. Critics may claim there are too many lawsuits without merit, but they fail to recognize that often the only way for harmed patients to get information is to file a lawsuit.
▪ The cost of medical liability insurance is too high. Review panels will lower the cost.
Rebuttal: The average cost of a malpractice insurance policy in Kentucky is about $10,000 a year, with higher rates for surgeons and OB-GYNs. A study in the Journal of Patient Safety found that 1.8 percent of physicians in the U.S. were responsible for half of malpractice payments. Therefore, a better strategy is to identify physicians who need an intervention or retraining to practice safely.
▪ There are not enough physicians in Kentucky. By establishing review panels, the commonwealth sends a signal that it is physician-friendly.
Rebuttal: There is a shortage of physicians in rural areas, but the answer is to train more physicians. The University of Kentucky College of Medicine is doing exactly this. Its Bowling Green campus welcomed its first class of medical students in August.
▪ Kentucky has an antiquated medical-liability system. Review panels will make our system more modern.
Rebuttal: States have experimented with review panels since the 1970s. Serious questions about their functioning and outcomes have been raised since the 1990s, and many states have discontinued them.
Proponents have failed to make a convincing argument. Health policy in Kentucky should not be built on “tort reforms” that weaken accountability for negligent health care and impede the ability of injured patients to use the civil justice system. Rather, if we are to fix what ails our health-care system, policy must be grounded in safety, transparency, accountability, accessibility and patient rights.
We the people — we the patients — deserve health policy shaped by facts, not rhetoric reflecting fears and fantasies. Let’s work together to solve real problems within health care in Kentucky.
Melissa Clarkson is a member of Health Watch USA and an assistant professor of biomedical informatics at the University of Kentucky. Reach her at firstname.lastname@example.org.