In Kentucky, a law that requires every medical malpractice case to go through a review panel to determine if it has enough merit to proceed has been in effect for just a year — and it already seems broken.
It’s also facing lawsuits that challenge its validity under the Kentucky Constitution. The law drastically slows down the process for plaintiffs who are seeking to obtain a measure of justice through a medical malpractice case — and that would seem to fly in the face of the constitution, which says that everyone has the right to their day in court without delay.
Those who back the law say that the panel system is needed to prevent injured patients from filing supposedly “frivolous” lawsuits, even though there is no evidence that frivolous suits are being filed in Kentucky. They say that putting every case through a panel of medical professionals would help make sure that only cases with merit make it to court, although there are already numerous existing protections to ensure that truly meritless cases are not filed or do not go to trial if they are. After all, the whole point of the court system is the help resolve disputes where the parties don’t agree.
Those who oppose the law say that it does nothing but obstruct people from their right to pursue a fair civil remedy for wrongs they have suffered, by adding additional expense and a delay of at least an extra nine months before an injured patient can get her case to court. It is also not fair to the victims to have their case judged by a group of doctors who are likely colleagues of the defendants.
It is already clear that the program is not working as planned. According to records released by the state agency that administers the program, there have been a total of 531 panel claims filed. In just one out of of ten of those has a panel actually been formed, which is only the first of many steps in the process. In only three percent of the claims has the panel actually heard evidence and reached a decision about whether there was negligence and whether the negligence caused the patient’s injury. Unsurprisingly, the panels have sided with their colleagues and against the patient in all but one case.
Fortunately, if everyone agrees, the parties can opt out of the panel system and go straight to court. The lawyers at Garmer & Prather have been successful at reaching that agreement on behalf of some of our clients.
A decision from the Kentucky Supreme Court, deciding whether the panel system is proper under the Kentucky Constitution, is expected before the end of the year. Until then, anyone who files a medical malpractice claim should find a lawyer who is knoweldgeable about the panel system, and experienced in medical negligence cases in general. Unfortuantely, though, as long as the system is in place, most injured patients will face delays that are beyond their control.