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A bill that’s now passed in both Kentucky General Assembly chambers would let a panel of doctors review medical malpractice claims before they can be filed in court.

Ralph Alvarado

The proposal’s proponents said the legislation would reduce the number of meritless lawsuits and medical malpractice insurance rates and would entice more health care professionals to come to Kentucky. Opponents said such laws had little impact but would add unnecessary layers of oversight while having a chilling effect on people’s right to sue if they have been harmed by health providers.

Senate Bill 4, authored by state Sen. Ralph Alvarado, R-Winchester, a physician, received final passage in the Senate Friday and now awaits Gov. Matt Bevin’s signature. The bill would set up three-member panels of health care providers to review medical malpractice cases. Two of the panelists would be chosen by the two parties involved in the lawsuit. Those two members would choose the third panelist.

After reviewing the case, the panel would issue an opinion as to whether the evidence:

  • Supports the conclusion that the doctor in the case “failed to comply with the appropriate standard of care … and the conduct was a substantial factor in producing a negative outcome for the patient.”
  • Supports the same conclusion but also that the doctor’s conduct had little impact on the patient’s outcome.
  • Does not support the conclusion that the doctor failed to provide appropriate care.

The panel’s opinion is not conclusive, meaning the case could go to court regardless of the opinion, but it could be admissible as evidence during trial. An opinion in favor of the doctor might reduce the patient’s willingness to take the case to trial or might entice the patient to settle the case for a lower amount.

Alvarado is a physician and medical director with Louisville-based KentuckyOne. According to his website, he closed his medical practice in 2013 “due to decreasing reimbursements and increasing regulations.”

Reactions to the bill diverged significantly among the Louisville business, health care and trial lawyers communities.

Sarah Davasher-Wisdom, COO of Greater Louisville Inc., the local chamber of commerce, hailed the proposal as “a win for business and health care in the commonwealth.”

“Medical review panels will cut down on frivolous lawsuits and lower malpractice insurance costs,” Davasher-Wisdom said in an emailed statement. “This will help us attract health care providers, thereby improving access to care.”

Norton Healthcare Chief Medical Officer Dr. Steven Hester told IL via email that the Louisville-based health system supports the law in part because it brings Kentucky in line with surrounding states.

“The medical panel review bill will bring expert opinion to ensure that the appropriate level of care was given,” Hester said.

Liz Shepherd

Liz Shepherd, a partner with Louisville law firm Dolt, Thompson, Shepherd & Conway, said the bill sets up clear conflicts of interest in that it enables doctors — rather than juries — to judge the conduct of other doctors.

The legislative proposal also violates the Seventh Amendment to the U.S. Constitution in that it undermines people’s right to a trial by jury, said Shepherd, who also serves as president of the Kentucky Justice Association, a group of lawyers that counts more than 1,400 members.

Doctors shouldn’t be able to determine whether other doctors can get sued for alleged malpractice much like truckers shouldn’t be able to determine whether other truckers can get sued when they are alleged to have caused an accident, Shepherd said.