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The Kentucky Supreme Court has unanimously struck down a 2017 law which required a panel of doctors to review any malpractice case before going to court.

In 2017, Kentucky legislation was passed mandating that no medical malpractice lawsuit could be filed against a health care provider unless the injured patient:

  • filed a complaint with a Medical Review Panel (MRP) composed of three medical providers, and
  • the panel issued an opinion as to the merits of the complaint.

The panel’s opinion doesn’t prevent nor advance the plaintiff case. However, the review panel opinion is admissible as evidence and the doctors who participated on the panel may be called as witnesses. Thus, ultimately adding unnecessary layers of oversight and burdens injury victims with additional costs and delays. The law took effect on June 29, 2017; a lawsuit challenging its constitutionality was filed the same day. In my opinion, this ‘extra step’ has a chilling effect on a plaintiff’s decision to pursue litigation.

The suit was filed by Tonya Claycomb, whose son was born in 2014 with cerebral palsy and brain damage, according to the suit. The suit names the Commonwealth of Kentucky as the defendant, and it charges that the law is “arbitrary, vague” and violates due process because plaintiffs in a medical liability suit face “additional costs and delay and prohibits their immediate access to courts.”

On October 30, a Franklin Circuit Court judge ruled the law unconstitutional after reviewing the Claycomb suit, but the Kentucky Court of Appeals ruled in favor of continuing MRPs. However, last week, the Supreme Court ruled the law unconstitutional, “opening the door” for Claycomb and hundreds of other malpractice victims.

MRPs are one more form of “tort reform”, a movement propagated by large corporations and bad doctors. Their bogus argument is that ‘frivolous’ lawsuits drive up the cost of medical care. However, doctors (who may face a similar panel themselves someday) will almost never side with the plaintiff, except in the most egregious cases. When doctors are evaluating their brothers and sisters’ conduct, they will strive to find in favor of the doctor.

MRPs do nothing but further burden victims and prevent access to our civil justice system. The plaintiff may decide not to move forward because of an opinion in favor of the health care provider; creating a deterrent to plaintiff’s 7th Amendment right to a jury trial in civil cases. Furthermore, in the Kentucky example, doctors on the panel aren’t even required to practice in the same specialty as the doctor being sued. Should a proctologist opine about the conduct of a brain surgeon? Give me a break!

There is not now and never has been a ‘litigation crisis;’ it’s a myth in order to benefit big business and insurance companies. Tort reform laws of any kind undermine our justice system, which, by the way, already has mechanisms in place to prevent and dismiss frivolous cases. The system has built-in checks and balances, so courts and juries will not waste time on meritless cases.

The idea that tort reform is enacted for the benefit of the “people” is a farce. Tort reform makes all of us less safe. By placing limits on amounts that wrongdoers are required to pay, state legislatures remove the incentives for corporations to put safety over profits. They disable juries from being able to properly compensate the victims. Attempts to take power away from juries are attempts to take power from the people. When tort reform bails out irresponsible corporations, doctors, and hospitals, it slams the courthouse doors on innocent victims, undermines our constitutional protections, and leaves taxpayers holding the wrongdoers’ bills.

If a legislature really wanted to fix the medical malpractice ‘crisis’ in this country, it should focus on better care, training and improved safety. Punish the perpetrators, not the victims; hold the wrongdoers accountable. Our elected officials must stop sacrificing our rights at the throne of the big business and insurance companies. Victims deserve the right to tell their story; to exercise their right to trial by jury under the Seventh Amendment. Justice should never be for sale!

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