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New Law Creates Medical Review Panels in Kentucky

 

On March 16, 2017, Kentucky Gov. Matt Bevin signed into law a new statute that requires medical malpractice plaintiffs to obtain an opinion from a medical review panel before their lawsuit can be filed in court. Healthcare litigation attorney Stephanie Wurdock outlines Senate Bill 4 and how it will affect the medical malpractice litigation process. An earlier version of this article was published in M.D. Update magazine prior to several significant amendments to SB4. The article below contains the most up-to-date analysis of the bill. 

 

According to the National Practitioner Data Bank, Kentucky reported an average of 269 payments each year from 2011 through 2015. This number includes payments made for various reasons; however, most arose from lawsuits or pre-litigation claims. To health care practitioners, these numbers are not insignificant. Nor are they unique to the Commonwealth.

 

Several states have enacted “tort reform” to stem the flow of medical malpractice claims. For example, Indiana enacted tort reform in 1975, instituting “medical review panels” and caps on damages. This year, members of the Kentucky Legislature propose that our state follow Indiana’s lead.

 

Enter Senate Bill 4. Entitled “AN ACT relating to medical review panels,” SB4 is sponsored by Senator Ralph Alvarado, R-Winchester, who is a licensed internist. If enacted, the bill will establish “medical review panels” to evaluate the merits of proposed malpractice complaints before suit can be filed in court. This article provides a broad overview of SB4 as it is currently written. While changes to the bill may yet occur, its core provisions will likely remain the same.

 

SB4 applies to all lawsuits arising out of health care or professional services that were, or should have been, provided by a health care provider to a patient. The bill defines the term “health care provider” to include individual providers, practice groups, hospitals, nursing homes and agencies, as well as the administrators, officers, directors, agents and employees of any health care practitioner or entity. The bill covers all causes of action arising out of the provision of medical care including negligence, wrongful death, informed consent, battery, breach of contract, and violation of a statute or regulation.

 

Pursuant to SB4, a patient who wants to sue for medical malpractice must first submit his case to a “medical review panel” for review on the merits. The parties can forego the panel process, but only if all parties to the proposed action agree. Claims governed by a valid Alternative Dispute Resolution agreement are exempt from the requirements of SB4.

 

To institute a medical malpractice action under SB4, the patient must file a “proposed complaint” with the Commonwealth’s Cabinet for Health and Family Services. The parties must then appoint a three-person voting panel and an attorney chairperson. All health care providers who are licensed to practice in any state are eligible to serve on the panel. When possible, the chosen panelists should be licensed to practice in Kentucky, and in the same specialty as the defendants. However, that is not guaranteed.  Chosen panelists may be dismissed upon a successful challenge, upon agreement of all parties, or for “good cause shown.” A panelist who fails to fulfill his duties may be removed and subjected to civil sanctions.

 

If the parties cannot agree on an attorney chairperson, they can request to have one appointed via a striking process. The list of potential chairpersons will only include the names of attorneys who applied to serve as the chairperson of a panel and practice in the Supreme Court District in which the case would be filed.

 

Once the panel is set, the patient has 60 days to present his evidence in either written or electronic form. The provider then has 45 days to submit rebuttal evidence. These deadlines may be extended in the event of “extenuating circumstances.” The panel may request additional materials from the parties, perform its own research, and “consult with medical authorities.” However, depositions may only be taken with the attorney chairperson’s approval.

 

Within 30 days of receiving the provider’s evidence, the panel must issue one of the following three “opinions” as to each of the providers: (1) the evidence supports the conclusion that the health care provider breached the applicable standard of care, and that breach was a substantial factor in producing a “negative outcome” for the patient; (2) the evidence supports a breach but not causation; or (3) the evidence does not support a breach. After the panel gives its opinion as to each defendant, it is dissolved and shall take no further action.

 

This opinion must be issued within nine months of the panel’s formation. Thus, allowing three months for the panel to be formed, the entire process is designed to take less than 15 months from start to finish. However, given the relatively short (and unrealistic) time frames given for the presentation of evidence, one could expect the process to take anywhere from one to two years. Anecdotal evidence from Indiana suggests the process could take as much as three years.

 

Once the patient receives the panel’s opinion, he has 90 days to file a lawsuit—regardless of the opinion issued by the panel. If the matter proceeds in the circuit court, the opinion of the medical review panel is not conclusive, but it may be admissible into evidence as an expert opinion subject to cross-examination. The panelists may also be called by either party to testify as witnesses in the court matter.

 

If the panel does not give its opinion within 9 months after the proposed complaint is filed, the plaintiff may commence his action in court.  If that happens, “[t]he panel shall submit a report to the parties, stating the reasons for the delay, and may continue its work to reach an opinion.”  It is unclear what effect, if any, the opinion will have if the case is already being litigated in the circuit court.

 

Each panelist may be paid up to $350 for all worked performed as a panel member (not including potential testimony at trial) plus reasonable travel expenses. SB4 does not appear to limit the number of times a health care provider can serve on a medical review panel.

 

Proponents of SB4 claim it is necessary to slow rising health care costs, prevent the practice of “defensive” medicine, and attract medical talent to Kentucky. Its opponents claim that the bill impedes an injured patient’s path to justice. To be clear, SB4 does not prevent any patient from filing a lawsuit in the state court. Upon conclusion of the panel process, the patient may choose to file suit regardless of the expert’s opinion. What SB4 does do is essentially require patients to practice their cases for up to three years prior to filing suit.

 

SB4 is not expected to significantly decrease litigation costs. However, it is expected to “weed out” cases with questionable liability and the frequency of pre-trial settlements. For those cases that do proceed to trial, SB4 is expected to decrease the time from filing to trial.

 

SB4 was signed into law by Governor Matt Bevin and will go into effect on June 29, 2017. This new law will only apply to medical malpractice claims filed after its effective date. Little guidance has been offered by the Cabinet for Health and Family Services as to how the medical review panel process will be implemented. Sturgill Turner’s medical malpractice defense and health care litigation attorneys are closely monitoring the law and will provide updates as they arise.

 

The full text of SB4 can be located at http://www.lrc.ky.gov/record/17RS/SB4.htm.

 

Disclaimer: This article does not, nor is it intended to, constitute legal advice.