Late last week, the Republican-controlled Kentucky Senate passed a medical malpractice reform bill that would add an additional layer and burden to those seeking justice for medical malpractice committed in Kentucky. In what the foes of the Kentucky medical malpractice reform effort call unnecessary and unfair to medical malpractice victims, the Senate bill, which passed on February 5, 2015 on a partisan vote of 24 to 12, would require Kentucky medical malpractice victims to submit their claims to a three-member panel of medical experts who would review the claim and render a nonbinding medical opinion.
One of the Kentucky Senate Republicans who voted for the bill, and who happens to be a physician, claims that the medical review panel would add a “layer of accountability” that would weed out meritless medical malpractice claims in Kentucky and would not delay medical malpractice victims’ ability to have their claims filed in court. The physician-senator stated, “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 preying upon our health care providers.”
Senate Bill 6
SB 6 provides, in part:
(1) All malpractice and malpractice-related claims against a health care provider, other than claims validly agreed for submission to a binding arbitration procedure, shall be reviewed by a medical review panel. Such an action may not be commenced in a court in Kentucky before:
(a) The claimant’s proposed complaint has been presented to a medical review panel established under this chapter; and
(b) An opinion is given by the panel.
Notwithstanding Section 3 of this Act, a claimant may commence an action in court for malpractice or for a malpractice-related claim against a health care provider without the presentation of the claim to a medical review panel if the claimant and all parties named as defendants in the action agree that the claim is not to be presented to a medical review panel. The agreement shall be in writing and shall be signed by each party or an authorized agent of the party. The claimant shall attach a copy of the agreement to the complaint filed with the court in which the action is commenced.
(1) A medical review panel shall consist of one (1) attorney and three (3) health care providers authorized to serve under Section 9 of this Act.
(2) The attorney member of the medical review panel shall act as chairperson of the panel and in an advisory capacity, but shall not vote.
Any health care professional who acts as a health care provider, whether in the teaching profession or otherwise, who holds a valid, active license to practice in their profession in Kentucky shall be available for selection as members of the medical review panel.
(1) The evidence to be considered by the medical review panel shall be submitted by the respective parties in written form only.
(2) The evidence may consist of nonprivileged medical records, X-rays, lab tests, excerpts of treatises, depositions of witnesses including parties, and affidavits.
(3) Depositions of parties and witnesses, subject to approval by the chairperson, may be taken after the formation of the panel but before the evidence is submitted to the panel.
(4) Upon request of any party, or upon request of any panel member, the chairperson shall issue administrative subpoenas and subpoenas duces tecum in aid of the taking of depositions and the production of documentary evidence for inspection or copying, or both.
(5) The chairperson shall ensure that before the panel gives its expert opinion, each panel member has the opportunity to review every item of evidence submitted by the parties.
(6) Plaintiff’s evidence shall be submitted to the medical review panel within thirty (30) days after the chairperson has notified the parties of the formation of the medical review panel as set forth in Section 12 of this Act.
(7) The defendant’s evidence shall be submitted to the medical review panel within forty-five (45) days after the receipt of plaintiff’s submission of evidence.
(8) If no submission is made by one (1) or more of the parties, the medical review panel shall review the evidence submitted by the other parties and shall proceed with rendering its opinion on the evidence submitted.
(9) The chairperson may extend the deadlines set forth in this section in the event of extenuating circumstances, if requested by one (1) or more of the parties.
(1) The panel has the sole duty to express the panel’s expert opinion as to whether or not the evidence supports the conclusion that a defendant or defendants acted or failed to act within the appropriate standards of care as charged in the complaint and whether any such failure was a substantial factor in providing a negative outcome for that patient.
(2) After reviewing all evidence, the panel shall, within thirty (30) days of receipt of the defendants’ evidence submitted under Section 17 of this Act, give as to each defendant one (1) of the following expert opinions, which shall be in writing and signed by the panelists:
(a) The evidence supports the conclusion that the specifically identified defendant failed to comply with the appropriate standard of care as charged in the complaint and the conduct was a substantial factor in producing a negative outcome for the patient;
(b) The evidence supports the conclusion that the specifically identified defendant failed to comply with the appropriate standard of care as charged in the complaint, but the conduct was not a substantial factor in producing a negative outcome for the patient; or
(c) The evidence does not support the conclusion that the specifically identified defendant failed to meet the applicable standard of care as charged in the complaint.
(3) In order to give the expert opinion of the panel in accordance with subsection (2) of this section, two (2) or more of the members of the panel shall agree on the conclusion.
(1) The panel shall give its expert opinion within one hundred eighty (180) days after the selection of the last member of the initial panel. However, if:
(a) The chairperson or any other member of the panel is removed; and
(b) A new member is selected to replace the removed member more than ninety (90) days after the last member of the initial panel is selected; the panel has ninety (90) days after the selection of the new member to give its expert opinion.
(2) If the panel has not given its opinion within the time allowed under subsection (1) of this section, the panel shall submit a report to the parties, stating the reasons for the delay.
(1) The report of the expert opinion reached by the medical review panel is admissible as evidence in any action subsequently brought by the claimant in a court of law, unless the court finds that admissible evidence first produced during pretrial discovery in the action would have had a substantial and material impact on the panel’s deliberations and ultimate conclusions reported under Section 19 of this Act.
(2) The report of the expert opinion reached by the medical review panel is not conclusive as to any question that is before the court, and either party may call any member of the medical review panel as a witness. If called as a witness, the panel member shall appear and testify, but shall be entitled to reasonable compensation by the party calling the witness.
(1) Each member of the medical review panel other than the chairperson is entitled to be paid as follows:
(a) Up to three hundred fifty dollars ($350) for all work performed as a member of the panel exclusive of time involved if called as a witness to testify in court; and
(b) Reasonable travel expenses.
(4) Fees of the panel, including travel expenses and other expenses of the review, shall be paid by the party or parties in whose favor the expert opinion is written.
WE ask the following questions: why should it be necessary for a medical panel to review all medical malpractice claims in Kentucky before the claims are filed in court? Is there a legitimate, substantial benefit to the citizens of Kentucky by adding a medical panel’s review of all medical malpractice claims in Kentucky that would justify the delay that such would cause for a Kentucky medical malpractice victim who is seeking justice and compensation? Is there any substantial justification in delaying a Kentucky citizen’s right to have a Kentucky jury determine their medical negligence claim (i.e., justice delayed is justice denied)? As one Kentucky senator has stated, Kentucky medical review panels would be “no different than the fox guarding the henhouse.”
If you or a loved one were injured due to medical negligence in Kentucky or in another U.S. state, you should promptly find a Kentucky medical malpractice lawyer (or a medical malpractice lawyer in your state) who may investigate your Kentucky medical malpractice claim (or a medical malpractice claim in your state) for you and represent you in a medical malpractice case, if appropriate.
Turn to us when you don’t know where to turn.