The impact of tort reform in Kentucky.

By A. Courtney Guild, Esq.

In March 2013, Kentucky Senate Bill 9, which would have established a medical review panel system for use in civil litigation relating to long term care facilities, was withdrawn from consideration in the House before it could be voted on in the legislative session. This provision would have allowed for tort reform in the state, including the addition of a medical review panel to evaluate potential lawsuits against nursing homes, personal care homes and some facilities for the intellectually and developmentally disabled. The panel’s findings would be admissible in court but would not preclude a plaintiff or a family member from filing litigation.

Advocates for tort reform promote that the medical review panel process helps reduce or eliminate frivolous lawsuits against the long term care industry. Those who oppose the bill argue that panels delay justice and create an undue burden for a plaintiff, as well as discourage attorneys from taking nursing home cases.

Tort reform legislation is believed by some to be one way to combat Kentucky’s significant burden from rising healthcare costs. Fear of medical malpractice lawsuits can push some doctors to perform more tests than necessary, which increases unnecessary costs. Reducing this fear of litigation may, in turn, reduce healthcare costs.

Kentucky vs. Indiana
For example, Indiana established the Medical Malpractice Act in 1975, which requires cases claiming more than $150,000 in damages to be evaluated by a medical review panel. The panel then issues an opinion of whether evidence is sufficient to support an allegation of malpractice. The Medical Malpractice Act also limits Indiana patients who are injured as a result of a doctor’s negligence to a maximum award of $1.25 million.

Advocates indicate that this model provides stability for the state and helps parties to determine whether they have a strong case. Generally, the panel consists of an odd number of medical professionals and a non-voting attorney chairperson.

Currently, tort reform in Kentucky cannot mirror Indiana’s Medical Malpractice Act because Section 54 of Kentucky’s Constitution prohibits caps on damages. In Kentucky we have created a plaintiff friendly environment with regard to nursing home and other types of malpractice lawsuits.

Medical Review Panels
The impact of tort reform including the establishment of a medical review panel potentially allows for nursing facilities to allocate their expenses towards improving quality of care as opposed to excessive costs in order to defend lawsuits. While this panel would not stop a plaintiff from bringing the lawsuit, it would serve as a tool to gauge whether it is a valuable use of time and resources for the patient and provider to engage in litigation.

Whether the adoption of medical review panels similar to those in Indiana make sense for Kentucky remains to be seen. However, if
Indiana’s experience serves as a guide, then this or similar reform would discourage frivolous malpractice lawsuits and increase healthcare providers peace of mind by allowing them to redirect funds toward patient care.

Courtney Guild, Esq.is an attorney with Hall, Render, Killian, Heath & Lyman PSC.