As a physician with patients in nursing homes, state Sen. Ralph Alvarado says he eagerly awaits a law that takes effect today meant to limit medical malpractice lawsuits in Kentucky.
“We’re really going to get rid of a lot of these frivolous lawsuits,” said Alvarado, a Winchester Republican. “Frivolous, nonsense lawsuits, they happen all the time.”
Any medical malpractice lawsuit will have to clear a new hurdle starting today under Senate Bill 4, a measure sponsored by Alvarado and approved this year by the General Assembly to establish “medical review panels” to screen such claims before they go to trial.
But others, including Wanda Delaplane, whose father suffered an agonizing death at a Frankfort nursing home from medical neglect, said she’s deeply disappointed the state has passed a law long opposed by patient advocates and trial lawyers. She said it will delay or deny many people access to court.
“This is so fundamentally unfair,” said Delaplane, of Lexington, whose family won a $20 million verdict in 2006 over her father’s death at age 84 from an untreated bowel obstruction. “It’s just wrong.”
Under the new law, anyone alleging harm at the hands of a medical provider such as a doctor, nurse, hospital, or nursing home must first have the case screened by an outside panel of medical professionals before filing a lawsuit.
The individual alleging harm must file a complaint with the state Cabinet for Health and Family Services, which triggers the process of setting up an outside panel to review the claim.
The panel consists of three licensed health professionals with a lawyer serving as chairman. Members must render an opinion on whether a breach of care occurred and whether such a breach was a “substantial factor” in causing harm to the patient.
Only after the panel has been created and issued its finding — a process that can take more than a year — can the case proceed to trial. The panel’s opinion may be admitted as evidence in the case. However, if the panel, once established, takes more than nine months to issue a finding, the individual may go ahead and file a lawsuit. The parties also may skip the medical review panel process and go directly to court if both sides agree to do so. The new law — similar to ones in more than a dozen states, including Indiana — had been sought for years in Kentucky by physician groups, nursing homes and others in the health business. But it failed repeatedly to get through the state House of Representatives, controlled by Democrats, until this year after the House shifted to Republican control, putting the GOP in charge of both legislative chambers and the governor’s office.
Betsy Johnson, president of the Kentucky Association of Health Care Facilities, which represents nursing homes, argued for medical review panels last November before a joint meeting of the House-Senate Health and Welfare Committee. Johnson cited the proliferation of television and newspaper ads from big law firms recruiting potential clients who allege injuries in nursing homes.
Such advertising encourages baseless claims and is demoralizing to families and staff who see their hometown nursing home lambasted in such advertisements, she said.
“We’re the most heavily regulated industry in the nation,” Johnson said. “We’re looking for help and support.”
They found it in the 2017 session of the General Assembly despite fierce opposition from critics including Sen. Ray Jones, a Pikeville Democrat and the Senate minority leader.
Jones, a lawyer who is married to a physician, said he believes the law simply is unnecessary and there’s no evidence to support the need for it. “Kentucky has never had a runaway lawsuit or frivolous lawsuit problem,” Jones said. “It’s never happened. Our juries have by and large been able to make rational decisions about when someone has been injured as a result of a negligent or intentional act.” Shannon Ragland, founder of Jury Verdict Publications, which includes comprehensive, annual reviews of jury verdicts in Kentucky and five other states, said only about 20 percent of people win jury damages in medical malpractice cases. And Ragland said data doesn’t support claims that medical review panels weed out groundless claims. Rather, Ragland said, such laws generally are meant to discourage people from filing lawsuits against doctors or other health providers.
“The purpose is to delay these cases and make it less likely that these cases are pursued,” he said.
Jones said he believes the new law to be unconstitutional because it is a barrier to an individual’s right to take a claim to court.
“This bill makes it more difficult for people who have been truly injured to pursue justice,” Jones said. “It’s stacking the deck in favor of the the nursing home industry, big business and the insurance business.”
Jones predicts someone will challenge the law and “it ultimately will be struck down by the courts.”
Similar laws have been struck down following legal challenges in other states, including Florida and Illinois, according to the Kentucky Justice Association, an organization of about 1,100 lawyers. Other states have repealed such laws as unworkable or ineffectual, according to the association, which strongly opposes the new law.
“Access to the courtroom is a constitutionally guaranteed right,” said Liz Shepherd, the association’s president. “Medical panels create a roadblock for those seeking justice.”
Delaplane said that after her family sued after her father’s death, it took years to get accurate information from the nursing home. Key witnesses couldn’t be located and records were missing or altered, information that was only turned up through the lawsuit, she said.
If the family had been forced to go before a medical review panel before filing suit, she said, they would have had none of that information and likely would have had a negative finding from the panel that could have adversely affected the outcome in court.
“If we had to go in and present information to a review board, we would not have had the truth,” Delaplane said. “It’s fundamentally unfair to put people in that position.”
But the proposed law won support largely among Republicans in the legislature, including Sen. Stephen Meredith of Leitchfield, a retired hospital administrator who joined the General Assembly this year and spoke in favor of the bill. Meredith said that during his years as a hospital CEO, some claims had merit and generally were settled by the hospital, but many were groundless.
“They were looking for what I call the medical lottery,” Meredith said. “They wanted a big payday.”
Alvarado said he’s convinced the law will limit frivolous lawsuits and bring down costs of litigation and medical malpractice insurance for health professionals. And he said the medical review panel law is only the start of other changes he would like to introduce.
Alvarado said he’s interested in tort reform in Kentucky and limits on damages in jury verdicts, saying Kentucky is one of only a handful of states that haven’t imposed such restrictions.
“This is just a first step in that direction,” he said.
Jones said he thinks it’s a step in the wrong direction.
“It’s a big corporation, big business agenda,” Jones said. “You might as well have given the chamber of commerce the keys to the legislature.”