United States: Medical Review Panels, A Step Forward For Kentucky?

Throughout the country, legislatures are debating and refining rules related to medical malpractice cases, including rules that would require potential plaintiffs to clear procedural barriers prior to filing a complaint. Proposed changes could have a dramatic impact on which cases are litigated in any manner, let alone tried.

In Kentucky, currently-pending Senate Bill 6 would require that medical malpractice complaints be presented to a panel of three experts before they could be filed with the courts. That panel would then rule on whether proper standards for care were met, and only if those standards were deemed to have been violated could the case proceed to litigation. Kentucky is not the first to consider such panels; neighboring Indiana, for instance, requires plaintiffs to seek the opinion of such a panel.

Such panels are designed to separate truly meritorious claims from meritless claims in an arena in which the intricacies of the standards at issue are rarely clear-cut and often beyond the scope and experience of a standard juror. Supporters argue that medical costs are rising in part due to frivolous malpractice lawsuits, and that panels such as these serve to curb these abuses and protect medical providers from the bad publicity, significant expense, and damage to mental well-being that result from even a groundless suit. Opponents argue that such panels unfairly restrict plaintiff's access to the court system, and that protections against groundless suits already exist in the system as currently constituted.

Indeed, Kentucky has long required that medical-malpractice patients disclose expert witnesses willing to testify (a) that the medical provider breached the standard of care in some defined way, and (b) that the breached was the cause of the injuries complained of by the plaintiff. For the second of these points, Kentucky law is clear that an actual medical doctor must serve as the expert witness. While plaintiffs sometimes can solicit such testimony from other treating physicians, they often must retain a professional expert (i.e., one not involved in the plaintiff's treatment) to provide the necessary testimony. It is true that in certain circumstances, this requirement can serve to eliminate a frivolous case. But there are two caveats that serve to lessen the impact of such a requirement.

First, plaintiffs are rarely required to disclose expert testimony until well into the litigation. Most trial courts will require that many documents be exchanged and depositions be taken before a plaintiff is required to present its expert proof. This can lead to lengthy, expensive litigation arising from even a frivolous claim. It might be true that the expert requirement eventually prevents some meritless claims from reaching a jury, but often this is only after a great deal of time and money has been expended defending against it.

Secondly, because plaintiffs often are required to retain the services of a professional expert, and because these experts can receive very high sums for their opinions and testimony, the incentives align for a potential expert to find negligence and damages to be present as often as possible when approached by a plaintiff or her counsel. (Of course, the opposite would also be true, and the incentives would favor to find a lack of negligence whenever approached by a defense counsel.) This is not to suggest that any expert or group of experts behaves unethically, but it is a reality that a search for objective truth is often complicated when the expert is paid substantial sums by one side or the other. Practically speaking, only the most extreme, egregious cases fail to find an expert to support their position. This is different from the medical-review panel, which would involve truly unbiased opinions from state-approved experts.

Thus, where the Kentucky courts sought to prevent frivolous medical malpractice actions by requiring expert testimony, as typically practiced, that requirement often fails to extinguish meritless cases, and normally only does so after considerable time and expense. It is for this reason that supporters of medical-review panels strive for alternative means of focusing judicial resources on meritorious claims.

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