A New Hurdle for Medical Malpractice Claimants: Legislation Establishing Medical Review Panels Takes Effect in Kentucky

by Reminger Co., LPA
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In a step toward tort reform, on June 29, 2017, Senate Bill 4 was signed into law and went into effect in Kentucky as KRS 216C.005 et seq., establishing a requirement that all potential medical malpractice lawsuits first be presented to a medical review panel before the case may be pursued in civil court. This new law affords a broad range of healthcare defendants, including, but not limited to, physicians, dentists, pharmacists, ambulatory services, chiropractors, physical therapists, social workers, and nursing homes, an added layer of protection from malpractice lawsuits by requiring potential plaintiffs to first bring their proposed malpractice complaint before a panel of the healthcare defendant’s peers. The belief is at that these panels will stifle frivolous or unfair claims against healthcare professionals in Kentucky, leading to a reduction in the litigation expenses that cause malpractice insurance premiums and healthcare costs to increase.

Specifically, the new legislation requires potential malpractice plaintiffs to file an administrative complaint with the Cabinet for Health and Family Services prior to filing a civil complaint. The administrative complaint is to then be reviewed by a panel consisting of three healthcare providers as well as an attorney chairperson. In choosing the panel, the attorney chairperson creates a list of six potential healthcare panelists licensed in Kentucky and in the same field or specialty as the healthcare defendant. Both the potential plaintiff and healthcare defendant each choose a healthcare provider from the list, and those two chosen providers then choose a third healthcare provider for the panel. Once the panel is finalized, the plaintiff has 60 days to submit evidence in support of the administrative complaint, and the healthcare defendant has 45 days thereafter to submit their evidence in defense of the plaintiff’s claims. During the discovery process, the circuit court that would have jurisdiction over the case has the authority to limit or compel the evidence submitted.

Once all evidence is submitted, the panel may reach one of three conclusions: (1) that the defendant failed to act according to the applicable standard of care and that the failure was a substantial cause of the plaintiff’s injury; (2) that the defendant failed to act according to the applicable standard of care and that the failure was not a substantial cause of the plaintiff’s injury; or (3) that the defendant acted according to the applicable standard of care. While the plaintiff may pursue a malpractice claim in civil court regardless of the panel’s opinion, the opinion of the panel may be admitted as expert evidence in the civil case.

The requirement that all medical malpractice cases first be submitted to a medical review panel requirement may be waived upon the consent of all parties. Additionally, a lawsuit against the Kentucky Cabinet for Health and Family Services challenging the constitutionality of KRS 216C.005 et seq. was filed the same day the law went into effect.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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