Kentucky House of Representatives Chamber
03 March 2017

Kentucky State Congress Pushes Malpractice Review Panels

Lawmakers on both the state and federal level are moving quickly to clamp down on medical malpractice claims, putting their weight behind controversial “tort reform” measures that would place further restrictions on the rights of injured patients.

Kentucky Moves To Approve Medical Malpractice Review Panels

In Kentucky, the State’s House of Representatives narrowly passed a bill that will establish medical review panels to pre-screen cases of alleged medical negligence prior to litigation. Local NPR station WKMS says the law, which has already been approved by Kentucky’s Senate, would create three-member screening boards to deliver an independent expert opinion on the plausibility of every case’s allegations.

Kentucky State Capitol

As we explained in a previous article, at least 20 US states and territories have passed similar measures, either requiring the pre-litigation review of a medical screening board or leaving the option open to parties upon request. Kentucky’s proposed law, Senate Bill 4, tracks many of the provisions outlined in other jurisdictions, and if signed into law, would allow a medical review board’s expert opinion to be admissible as evidence in a subsequent court trial.

Democrats & Republicans Tussle Over Medical Negligence

Senate Bill 4 has divided Kentucky’s legislature sharply along partisan lines. While Republican State Representative Robert Benvenuti says that medical review panels will “provide[…] a balanced, unbiased and thoughtful approach for both patients and health care providers,” Democrats aren’t so sure, KYForward reports. State Rep Alan Gentry, a Democrat representing Louisville, spoke out against the bill when the issue was discussed on March 1, 2017, telling his Congressional colleagues: “We already have a panel. It’s called a jury. A jury made up of the people from all walks of life – the foundation of our American judicial system. We don’t need a second panel.”

Conservatives have argued that Kentucky’s current litigation atmosphere has begun to drive physicians out of the State, but Representative Chris Harris says there’s no evidence to support that claim. Even if doctors were abandoning Kentucky in droves, the reason behind their exodus probably wouldn’t be rising malpractice premiums. As historical insurance rates gathered by the Cunningham Group show, the last decade has seen many of Kentucky’s largest malpractice insurers actually lower their premiums, after inflation has been taken into account.

Decades-Long Dispute Over Doctor Liability Continues

This dispute isn’t new. Conservative legislators have been railing against a “crisis” of medical liability lawsuits for decades, and while their arguments that malpractice claims are driving insurance and healthcare costs skyward may have held water in previous years, most industry experts say that insurers today are actually thriving.

The battle over “tort reform,” according to Nicholas Pace, an independent researcher at the nonprofit Rand Corporation, is a fight without a true enemy. While GOP rhetoric would have the public believe that malpractice litigation is out of control, the crisis is wholly illusory. In fact, malpractice insurance premiums are at their lowest level in 16 years. The number of paid malpractice claims has also dropped significantly, as Doctor David Belk points out at True Cost Of Health Care. As statistics from the National Practitioner Data Bank clearly show, the number of malpractice claims that resulted in settlement or jury verdict dropped by more than 40% between 2003 and 2014. Even more telling? Insurers are on the hook for far less. The total amount paid out for claims has decreased by over 25% and will likely fall further in the future.

Meanwhile, the national costs of healthcare have only continued to grow, rising by nearly 31% over the last decade. To explain this dramatic increase in medical expenditures, we have to look elsewhere – to the demographics of an aging population, expensive new technologies, decreased competition in the insurance market and the fundamental fact that most healthcare consumers and doctors have no idea how much treatments cost. Conservative politicians, however, are content to focus on the mirage of a “medical malpractice epidemic.” In fact, advocates for “tort reform” have found a powerful ally in the newly-inaugurated Trump administration. President Trump’s Secretary of Health and Human Services Tom Price, who served as a Georgia State Representative for more than a decade, has been calling for medical malpractice reform his entire career.

GOP Sets Sights On Nationwide Malpractice Damages Cap

With Price’s high-level support, Republican legislators have moved to push through “tort reform” statutes on the national stage. Last week, on February 28, 2017, the House Judiciary Committee voted 18 to 17 in favor of H.R. 1215, a bill that would set a nationwide cap on the damages available to medical malpractice victims.

While the Protecting Access to Care Act of 2017 is still far from becoming federal law, its passage would have enormous consequences, applying to all patients who receive health insurance through Medicaid, Medicare, veterans or military health plans and the Affordable Care Act. While the law itself stops short of dismantling medical malpractice outright, author Steve King, an Iowa Republican, left no doubts about his ultimate intentions. In arguing for the bill, King pointed to reforms in the airline industry, which he says have “throw[n] blame out the window,” as his inspiration. Democrats were enraged, STAT reports, accusing the State Rep “of favoring the economic interest of health care providers over malpractice victims.”

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