On March 16, 2017, Kentucky governor Matt Bevin signed Senate Bill 4, effectively establishing this bill as law. The Kentucky Legislature website provides the details of the bill, summarizing it as:
“An act relating to medical review panels. [This act] establish[es] KRS Chapter 216C [and] create[s] within that chapter various new sections establishing a medical review panel system for use in civil litigation relating to health care providers, including sections setting out definitions, delineating covered health care facilities and providers, panel membership and formation, functions and deliberations of the panel, and utilization of panel results in civil actions” (http://www.lrc.ky.gov/record/17RS/SB4.htm).
All this legal jargon boils down to this: individuals are no longer allowed to file a medical malpractice lawsuit in court without first receiving an opinion from a medical review panel. What implications could this have on the process of medical malpractice litigation?
Well, if an individual believes they have a medical malpractice case in Kentucky, they must now file a complaint with the Commonwealth’s Cabinet for Health and Family Services. Then, there is a three month period in which to gather a panel of three medical professionals (preferably licensed in Kentucky and of the same field as the defendants) plus one attorney chairperson. Attorneys must “opt in” (i.e. apply) to be a chairperson for medical review boards.
Once established, the board will have nine months to offer their opinion. If they do not provide an opinion within this time frame, the plaintiff has the right to file their case in court. Even if the review board’s opinion is unfavorable, the plaintiff may still file a lawsuit once the review board adjourns. However, the medical review board’s opinion may be admitted as evidence should the case go to trial. The timeframe for filing a malpractice lawsuit after receiving the board’s opinion is 90 days.
There are situations in which the medical review process can be waived, such as cases involving sexual or physical abuse, criminal acts, grossly negligent conduct, and over prescription or incorrect prescription of medication. Furthermore, the process can be waived if the health care provider/facility has been previously sued for malpractice, or if an employee of the facility has pleaded to a Class B or higher misdemeanor or to a Class D or higher felony. A potential point of contention is that preferential treatment is shown toward veterans, law enforcement officers, firefighters, people over 65, and members of the clergy, as well as spouses of anyone in these groups. Each of these individuals is eligible to waive the medical review board process based on their status. Finally, the review board process can be avoided if both sides of the lawsuit agree to waive it.
The proposed intentions of SB4 are to prevent questionable malpractice cases from proceeding to trial and to reduce the time between filing and trial in those cases that do move forward.
Amendments to the bill include required substance abuse screening for employees of long-term-care facilities, the creation of a registry of abuse/misconduct in medical facilities, and minimum staffing requirements. It seems these amendments are an effort to reduce a number of malpractice suits by decreasing the potential for malpractice to occur. Supporters of the bill hope it will bring “balance” and “liability reform” to the Commonwealth (Rep. Robert Benvenuti III, R-Lexington, as quoted in U.S. News). Furthermore, it is intended to decrease the rising cost of health care and to attract medical professionals to Kentucky.
On the other hand, SB4 has been labeled as an obstruction on the path to justice for patients who have been mistreated. Representative Bob McCoy, a Republican from Bardstown, has even labeled the bill as being “unconstitutional” (as quoted in U.S. News). In a March interview with U.S. News, McCoy said the medical review panels would just create more red tape. He also expressed fears that plaintiffs’ attorneys would take on more malpractice cases just to spite the panel, thus causing one of the primary purposes of the bill to backfire. Only time will tell whose predictions will come true. As is the case for much of 2017, it seems SB4 will require an adjustment period– for attorneys, medical practitioners, and patients alike.
Link to Bill: