Under a new legislationSB4 passed in Kentucky, all potential malpractice suits must go before a medical record review panel before the case can be pursued in court. Medical malpractice lawsuits that were filed before mid-June of 2017 will not be subject to this new law.
This law is going to make filing medical malpractice lawsuits in Kentucky more difficult. It has been introduced with the intention of:
- Reducing litigation and thereby bringing down malpractice insurance premiums, which in turn would reduce healthcare costs.
- To nullify frivolous or unfair claims against healthcare providers even before they start.
The law covers a wide range of healthcare professionals, ranging from physicians and dentists to physical therapists and chiropractors. Under it, the term healthcare provider covers any healthcare facility or provider of healthcare or health services and their employees. This would include nurses, doctors, hospital owners/managers, and nursing homes.
So, what does this law involve?
- If you wish to file a medical malpractice suit, the first step is to file an administrative complaint with Kentucky’s Cabinet for Health and Family Services.
- The complaint will then be reviewed by a panel comprising an attorney chairperson and 3 healthcare providers. The attorney chairperson doesn’t get a vote.
- The attorney chooses the panel by creating a list of 6 physicians who are licensed in Kentucky and work in the same field as the potential defendant.
- Both the potential plaintiff and the potential defendant choose a provider from the list. The two chosen providers choose the third.
- The panel will review the proposed complaint, all supporting medical evidence, and expert and witness testimony. After that they will give an opinion regarding the merits of the case.
- The panel would issue an opinion that includes one of three outcomes:
- Failure to meet appropriate standards of care was a “substantial factor” in the patient outcome.
- Failure to meet those standards was not a “substantial factor” in the patient outcome.
- Evidence doesn’t show a failure to meet appropriate standards.
- If the medical review panel hasn’t reached a decision or opinion in 9 months from the date of filing the proposed complaint, the plaintiff can file his/her complaint in state court. The panel can continue its work to reach a decision or opinion while a complaint is pending in state court.
- In Kentucky, the current statute of limitations is one year from the date of injury or death. This statute of limitations will be extended 90 days after the claimant has received the medical review panel’s opinion.
- The opinion of the panel is admissible as evidence in the trial, and the panel doctors may be called as witnesses. This opinion is only evidential, and not conclusive.
A copy of the proposed legal complaint and filing fees must be delivered or mailed to the Cabinet of Health and Family Services to institute review by the medical records review panel. A medical review panel can be bypassed and the case taken to court only by written agreement of all parties.
Medical malpractice cases are challenging and difficult for plaintiffs to win. Most plaintiffs lose the case at trial. Some of the most difficult challenges include the following:
- Proving the doctor’s negligence
- Convincing the jury that the doctor was negligent
- Proving that the hospital did not provide the necessary care (issues could be lack of sanitation, poorly trained professionals, incorrect administration of medicine)
The medical community is highly protected; doctors are required to provide a certain level of care to their patients and it is difficult to prove that they did not provide that level of care. Moreover, doctors are not expected to never make a mistake, and all treatment plans may not work as intended. Another thing to note is that the majority of successful medical malpractice cases are usually settled out of court. Juries usually are on the side of the healthcare providers because they are aware that providing patient care is challenging, and there is no perfect treatment plan that will work equally for all.
In a medical malpractice case, issues of causation are complicated and difficult to prove. In addition, the standard of care of what should or should not be done in a particular medical situation is not always very clear. The fact that another doctor would have taken a different approach or treatment protocol is not by itself evidence of malpractice. The treatment or service must be a deviation from the applicable standard of care, or in other words, no reasonable healthcare provider would have done it in that way and the injury would not have occurred if there had been no deviation from the acceptable standard of care.
Providers of medical review service for medical malpractice lawyers would agree that the complexity of medical care and individual state laws make these types of cases difficult to win for the plaintiff. The new legislation is Kentucky is very likely to bring more hurdles in the path of medical mal lawyers and their clients.