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10 August 2018

Backlogged Kentucky Medical Screening Panels Struggle To Keep Up

Kentucky’s medical review system is already in trouble, only 8 months after going into effect. As an investigation from the Courier-Journal has shown, the new system, implemented to fight frivolous cases, has only served to gum up the works, keeping plaintiffs and defendants out of the courtroom.

Kentucky Medical Review System Struggles With Backlogged Cases

Out of 531 claims filed in Kentucky over the last year, only 11%, a total of 58 cases, have been assigned to a medical review panel. Removing another 5% which have been withdrawn or settled, that leaves 393 malpractice claims in limbo, leaving countless families to experience undue worry and stress. Only 3% of the cases have actually drawn to a conclusion through the process.

Surgeon Preparing Scalpel

Tort Reform Falls Flat In Kentucky

Like many other states, Kentucky’s conservative-led legislature is waging a fight (or tilting at windmills) against the “scourge” of medical malpractice litigation. In 2016, the State’s lawmakers passed a new bill to implement what are known as medical review panels.

How Medical Screening Panels Work

These panels, which are staffed by attorneys, doctors and other health professionals, are intended to review proposed medical malpractice lawsuits before the cases reach a court. After reviewing the applicable evidence, the panel will render a non-binding ruling on the case.

While plaintiffs unsuccessful in the panel still have the right to sue, the panel’s decision can be used as evidence in court; panelists can be called in to testify. The measure went into effect this year, but the initiative has not gone according to plan, as the Courier-Journal has found.

The idea is to filter out frivolous claims, reducing a perceived burden on Kentucky’s courts, but in actuality, the medical review panel process has just become one more burden that neither plaintiffs nor defendants are particularly pleased about. As Kentucky has learned, pushing cases through a medical review panel system takes up a lot of time.

States Abandon Medical Review System

Even defense attorneys for doctors have been forced to admit that Kentucky’s system isn’t working perfectly. In a post on its website, Lexington-based defense firm Sturgill, Turner, Barker & Moloney¬†writes about the act’s less-than-perfect rollout, saying that since few medical professionals are aware of the new law, finding people to serve on the panels has been difficult. Faced with interminable delays, some parties have even felt forced to waive the medical review process entirely, choosing to go to court instead of wait.

That’s why so few states, even ones that adopted the system in the past, have stuck with it. At one point, nearly two-thirds of the states had implemented medical review panels. Today, it’s only 17.

The measure is often deemed unconstitutional when challenged in court, because it delays a plaintiff’s access to the court system. In fact, Kentucky’s Supreme Court is now considering a case of this very nature. Oral arguments were heard in the case on Wednesday, August 8, 2018.

Kentucky Courts Review Measure’s Constitutionality

A lower appeals court deemed Kentucky’s medical review panel system unconstitutional. In a harshly-worded opinion, Franklin Circuit Judge Phillip Shepherd wrote, “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.” Judge Shepherd found that the medical review panel law violated no fewer than 13 of Kentucky State Constitution provisions.

Well-regarded research from the The Project on Medical Liability in Pennsylvania has come to similar conclusions. In a 2003 study of the issue, the organization found after reviewing the literature that “overall, panels are unpromising,” saying the proposal would increase litigation costs, delay plaintiffs’ access to justice and had no consistent effect on malpractice premiums.

Lengthening The Dispute Resolution Process

William McMurry, a plaintiffs’ attorney in Kentucky, says the implementation of medical review panels will extend the length of the typical malpractice claim from 2 to 4 years. That’s an exceedingly long amount of time for victims who have suffered severe injuries and may be in need of immediate therapies or, at the least, the relief of knowing that their cases have been resolved. And as we’ve seen, medical malpractice screening panels are doing just that in Kentucky – lengthening legal disputes, rather than hastening them to a resolution.

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