Bill to create panels to review medical-malpractice lawsuits passes Senate committee

UPDATE, Feb. 20: The Senate passed the bill 23-13, but House Speaker Greg Stumbo said he does not expect it to make any progress in the House.

By Melissa Patrick
Kentucky Health News

The state Senate Health and Welfare Committee approved an expanded bill Wednesday to put a hurdle in front of medical malpractice lawsuits in Kentucky.

Senate Bill 119, sponsored by committee chair Julie Denton, R-Louisville, would establish medical review panels to offer initial opinions on the merit of medical-malpractice lawsuits. A panel would consist of three medical experts. Each side in the lawsuit would choose one, and the chosen two would choose the third.

Chamber President Dave Adkisson
testifies for the bill. (KET image)

The bill is the fallback position for nursing homes (and earlier, doctors) who have been unable to get the General Assembly to offer the voters a constitutional amendment that would allow the legislature to limit damages in lawsuits. They want to decrease the number of cases that they consider frivolous but sometimes settle to limit legal fees. Hospitals and doctors recently joined the lobbying effort; the Kentucky Chamber of Commerce is also on board.

“This is common sense legislation to make sure there is merit, ” Denton said. The bill passed on a 6-4 vote, with Sen. Julian Carroll, D-Frankfort, not voting after a two-hour debate.

Supporters of the bill told the committee that Kentucky’s liability laws make it difficult to recruit physicians and health-care providers to the state, increase malpractice- and health-insurance premiums, and take money away from actual health care because providers spend so much on defensive practices. They said the bill would decrease the time it takes to resolve cases and decrease health-care costs.

Lawyer Larry Forgy, who represents 13 nursing homes, said lawyers from states like Florida and Texas that have passed limits on liability lawsuits were moving to Kentucky and suing the nursing homes. He said, “We have had a gator invasion in Kentucky.”

Opponents of the bill said that nursing homes improved the quality of care, there would be no need for these panels. Another opponent said it would not allow adequate time for the panels to make sure all information submitted was factual.

Wanda Delaplane of Frankfort, who won a $20 million malpractice judgment, said it took four years to gather the facts for her father’s case because the nursing home gave her and the state false information. She said the panel would only get information that the medical provider gave them and that this was “information that has a high degree of probability to be falsified.”

Patrick Clinch of Scott County, who said his father did not receive adequate health care while in a nursing home and subsequently died, reminded the committee that the debate is not just about lawsuits, but about people, often the elderly. He said medical experts on the panels would be biased toward their colleagues, and suggested the answer to this problem is improving the quality of care.

Jim Kimbrough, AARP Kentucky state president, agreed that quality of care was the problem.

“We believe the solution to implementing the issues of care in facilities lies within each facility to improve the quality of care,” Kimbrough said. He said the bill would delay the aggrieved their rightful access to the court system, and “Justice delayed is justice denied.”

Similar legislation passed the Senate in 2013, but didn’t get out of a House committee. It remains to be seen whether the additional lobbying power of hospitals and doctors, who are leading campaign contributors to legislators, will make a difference.

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