Is it wrong for Kentucky? Depends on who you ask.

By Kenny Colston

For the past few years, those involved with aging care in Kentucky have been focused on a key legislative change to their industry: the institution of medical review panels.

The Kentucky General Assembly has debated to review, or not, for the past several years as proposals have been submitted and modified to bring the practice to the Commonwealth.

Yet none of the proposals have ever passed both chambers in the Kentucky legislature. A Republican-controlled state Senate has repeatedly passed such bills, while a Democratic-controlled state House hasn’t given them much thought.

In essence, the proposals in Kentucky have been the same. A three-doctor panel, usually with one chosen by a nursing home, one chosen by a patient or its family alleging abuse at the nursing home and one agreed to by both sides would review a potential abuse case.

Advocates of the practice contend it’s not a legal hearing and doesn’t preclude or restrict the filing of a lawsuit. But whatever the review panel determines in a situation would be admissible in a lawsuit.

The change is advocated for by those in the nursing home industry, who as a group called the Kentucky Association of Health Care Facilities have paid for T.V. and radio ads encouraging support of the change.

Two other key groups, the Kentucky Justice Association and the AARP of Kentucky, have strongly opposed the bills.

Overall, 16 states and the U.S. Virgin Islands have some sort of medical review panel law, according to the National Conference of State Legislatures.

Those states include Alaska, Delaware, Hawaii, Idaho, Indiana, Kansas, Louisiana, Maine, Massachusetts, Montana, Nebraska, New Hampshire, New Mexico, Utah, Virginia and Wyoming.

Those states who have toyed with their laws the most, and most recently, according to various news reports are Indiana, Louisiana, Wyoming and Virginia.

According to its law, Louisiana is likely the toughest law for patients. The state charges $100 per named defendant to file a case before the panel and there is a one-year stature of limitations. An attorney chairs a panel of three doctors and the panel must be picked within two years of case filing. The panel must hear a case before it goes before a court.

Pros and Cons
Studies on medical review panels are few and far between as well. The most recent appears to be a 1986 study in the Journal of Health Politics, Policy and Law.

That study looked at Arizona’s review law and found “the data indicate(s) that although the frequency and average amount of (monetary) recovery are not affected by the panel system, the system leads to an increase in the number of disputes seeking formal adjudication, an increase in the cost of the process, and a lengthening of the time within which disputes are resolved.”

A 2009 story in American Medical News took an opposite view, one favored by the healthcare industry that shows lower settlement costs and quicker resolutions.

“Pinnacle Actuarial Resources Inc. The actuarial and consulting firm conducted a 2008 study of the issue for the American Medical Association, which views the panels as a promising alternative for states that cannot achieve more effective, traditional liability reforms such as noneconomic damage caps. The analysis found that states with screening panels generally had better overall medical liability insurance rates –20 percent below the national average — and lower claims costs than states without such laws. States with stronger panel laws also showed a higher percentage of cases that closed without any payout and quicker settlement times.”

Advocates of medical review panels in Kentucky say the state is a “fertile ground” for lawsuits and contend out of state lawyers harvest the state for cases to make money off of.

They point to attorney seminars on nursing home cases, out of state lawyers advertising, a high volume of lawsuits and the decision of some companies to leave the state as reasons to institute changes to current law.

But those opposing medical review panels say the law is fine and nursing homes are looking for a way to continue diminished care.

“(Review panels) will cause delays, increase in costs and will decrease nursing homes’ accountability,” said Maresa Fawns of the Kentucky Justice Association. “I think it’s wrong for Kentucky.”

Helping Kentucky Nursing Homes
Fawns cites numbers from the U.S. Center for Medicare and Medicaid Services that says 40 percent of Kentucky nursing homes rank below or well below average for care. Those same numbers rank Kentucky at the top for most nursing home fines and the average number of severe deficiencies at each home, she said.

“We need to figure out a better way to get better care in nursing homes,”  Fawns said. “We need more frontline workers to take care of people.”

Fawns also said better pay and more staffing would help nursing homes. She called the review panel a way to “impede on the right to trial by jury” saying such a panel would automatically give three expert witnesses to nursing homes. And Fawns doubts doctors would rule against other doctors in abuse cases.

Advocates for panels point to their own statistics saying Kentucky has too much unnecessary litigation in nursing home cases and point to businesses pulling out of the state. Fawns said the best example of why Kentucky shouldn’t institute review panels is its neighboring state, Indiana. As bad as Kentucky ranks, she said, Indiana is worse in care with its review panel legislation.

“There are several states who have it, but there are also several states who had it and decided to repeal it,” she said.