Legislature passes bill requiring ads against nursing homes to include their correction plan and when problem was corrected

By Melissa Patrick
Kentucky Health News

FRANKFORT, Ky. – The 2017 General Assembly has passed two bills long supported by the nursing-home industry and other health-care providers — one to impose another obstacle on medical-malpractice lawsuits, and one that would require law firms to publish “complete information” in advertisements about long-term care facilities. Both bills are on their way to Gov. Matt Bevin.

Sen. Ralph Alvarado

Senate Bill 4 would require a panel of three medical-care providers and a non-voting attorney to review a malpractice claim before submitting it to a court. The panel would have nine months to render an opinion, but could be bypassed if all sides agreed. Trial judges would decide on the opinion’s admissibility.

Similar legislation from Republican Sen. Ralph Alvarado, a Winchester physician, had passed the Senate in earlier sessions, but wasn’t heard in the House, which was led by Democrats. Both chambers now have GOP majorities, but some House Republicans doubted the measure’s constitutionality, so it was amended in that chamber and passed by only 51-45, with 11 Republicans joining 34 Democrats in voting against it. The Senate concurred with the changes March 3.

Proponents of medical review panels say they will cut down on frivolous lawsuits and lower malpractice insurance costs. Opponents say such laws have proven ineffective in other states and that they delay a person’s right to a trial by jury.

Sen. Danny Carroll

The “truth in advertising” legislation, SB 150, would require that any advertising about a long-term care facility that includes information about surveys, inspections or investigations, also include the date of any report, the facility’s plan of correction and the date the deficiency was corrected. The ad must also state that it is not authorized or endorsed by any government agency. And all of this information must be in the same color, type font and size as the other language on the publication and be equally prominent.

The bill, which raises constitutional questions about freedom of speech, is aimed at ads from lawyers seeking plaintiffs to file lawsuits against nursing homes. It awaits Bevin’s signature or veto.

The sponsor, Sen. Danny Carroll, R-Paducah, said during the bill’s Senate hearing that most of these “unscrupulous and unethical” advertisements come from out-of-state law firms and that this measure “creates a level playing ground.” In his legislative update, Carroll said this bill “will in no way restrict civil discourse or lessen accountability for long-term care facilities.”

Bills can still be passed when legislators reconvene March 29 and 30 to reconsider any bills the governor has vetoed.

Alvarado is the sponsor of SB 18, which would ban doctors’ peer reviews at hospitals from being used as evidence in malpractice cases.

Rep. Chad McCoy (Image from KET)

This bill has passed the Senate and a House committee and is before the House, with an amendment filed by freshman Rep. Chad McCoy, R-Bardstown, that would exempt statements of fact from the ban.

In effort to get around McCoy’s amendment, language from SB 18 has been included in amendments to several other bipartisan bills that involve children. One of those includes House Bill 524, sponsored by Rep. Addia Wuchner, R-Florence, aimed at protecting children from sex trafficking. The bill awaits a vote on the Senate floor.

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