By: Robin McGuffin and Dustyn Jones

 

On March 16, 2017, Governor Matt Bevin signed into law a bill that requires medical malpractice plaintiffs to obtain an opinion from a panel of healthcare providers regarding the merits of their claims before filing suit in court. The law is an attempt to eliminate frivolous lawsuits and lower the cost of malpractice insurance in Kentucky.

Under the new law, a three-member panel of healthcare providers drawn from the defendant’s specialty has nine months to render a nonbinding opinion regarding a plaintiff’s medical malpractice claim. The panel can consider much of the same evidence that typically is admitted in litigation and can also conduct a hearing or ask the parties to answer specific questions.

After considering the evidence, the panel determines if the defendant’s actions violated the standard of care and if so, whether they were a substantial factor in causing the plaintiff’s injuries.

Can Still File Suit

The panel’s opinion does not prevent the plaintiff from filing suit, but can be admissible as an expert opinion in the litigation. The parties can also call any member of the panel as a witness. Accordingly, regardless of the outcome, the panel’s opinion will likely influence the plaintiff’s claim.

Supporters of the law believe the panel process will encourage early resolution of meritless claims, thereby reducing litigation costs that drive up the price of malpractice insurance and attracting more healthcare providers to Kentucky.

Opponents argue that the law will result in increased litigation costs. Critics predict that because the panel opinion can be admissible, the parties will spend considerable resources at the panel stage, in addition to typical litigation costs once the case proceeds to court.

This law is a significant change for the operations of any Kentucky healthcare provider. The bill was signed into law on March 16, 2017, and will become effective on or around June 29, 2017.

Find It Online

A full text version of the bill is available online at lrc.ky.gov/recorddocuments/bill/17RS/SB4/bill.pdf.

-Robin McGuffin and Dustyn Jones are with Stites & Harbison in Lexington, Ky.