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Nothing is guaranteed in medicine. Knowing that, how do you tell the difference between an ordinary bad outcome and medical malpractice?
Medical malpractice can occur under a variety of circumstances. It generally refers to mistakes that are made through a physician or medical provider’s negligence, which simply means making a mistake that an ordinarily cautious doctor or nurse would not make. Some common forms of medical malpractice include:
On Nov. 15, 2018, the Supreme Court of Kentucky struck down the Medical Review Panel Act.
The Act, which was pushed into place through partisan support in the legislature at the urging of groups like the Kentucky Association of Health Care Facilities and the Kentucky Medical Association, required plaintiffs who wished to pursue a medical malpractice suit against a doctor, hospital, nursing home or other health care provider to submit the case to a panel for review.
Each panel consisted of three medical professionals who would — eventually — vote on whether they believed the medical provider in a case violated the applicable standard of care. While plaintiffs could proceed to court without the panel’s approval, the panel’s decision could be used as evidence in the case.
On November 15, the Kentucky Supreme Court struck a blow on behalf of victims of medical malpractice across the Commonwealth. The Court struck down a much-decried law that forced potential litigants to go through a lengthy and cumbersome review system by finding the law violated the Kentucky Constitution.
Many malpractice and personal injury attorneys have been vocal against the 2017 law that set up the review panels for the very reason that the state’s top court pointed out: It was a system that largely denied people free and equal access to the courts.
That was precisely the intention of the law in the first place. The Kentucky Medical Association was one of the chief proponents of the 2017 law — which was put in place supposedly to stem the tide of “excessive” malpractice claims. Nursing homes, hospitals and physicians largely supported the law because it made actually filing a claim for malpractice a feat of endurance for any claimant.
Hospitals are incredibly busy places, and mistakes happen all the time. Nurses, doctors and aides are often overloaded with too many patients to handle, so you simply can’t assume that everyone who walks into your room understands your medical condition or why you are being treated.
You need to take steps to protect yourself from medical errors whenever you’re in a hospital, whether you’re there for surgery, testing, or some other condition.
1. Bring someone with you.
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.
Kentuckians with medical malpractice claims have been fighting an uphill battle since the rollout of a new law aimed to protect physicians.
In 2016, Kentucky passed a law that sought to reduce the number of frivolous lawsuits against medical providers. The impetus of the Medical Review Panel (MRP) Act was the rising cost of medical malpractice insurance for providers. To cut down on the number of lawsuits, patients pursuing a medical malpractice case would first have their case screened by a panel of experts. The panel would then advise the patient, who would be able to move forward regardless of the panel’s advice.
According to the Courier Journal, the panels have seen significant delays.
You’ve probably heard horror stories about patients who have been victims of “wrong site, wrong surgery” injuries. Those are situations where something happens like the surgeon operates on a patient’s left elbow instead of the right, or performs a knee replacement on a patient who was supposed to have a hernia repaired.
Unlike many modern horror stories and urban legends, these kinds of stories are actually true — and they happen far more often than most people think. While it’s supposed to be the job of the hospital and surgeon to get things right, patients are wise to do everything they can to avoid falling victim to this type of negligence.
So, what can you do? Before your next surgery, take the following steps:
Kentucky Injury Law News