ICYMI: Medical Review Panels

The Courier-Journal has graciously given permission to me to reprint my C-J columns in full here.  I've had a request for this one on Medical Review Panels, so here it is.

As the current legislative session draws to a close, the Kentucky House, controlled by the Democrats, remains the place where good ideas go to die. The latest example (one of many) is Medical Review Panels (MRPs). Republicans passed legislation to create MRPs in the Senate, but if that bill even makes it to a vote on the House floor, its defeat is certain — just another consequence of Republicans failing to flip the House last November.

Here’s how the legislation would work.

Anyone who felt that he or she (or a deceased family member) was the victim of medical malpractice would file a claim to the MRP, before that claim could be filed in court. The patient and medical provider would each nominate a physician to serve on the panel, and those two would nominate a third. The MRP would have 6 months to review the claim and rule on whether the medical provider — doctor, nurse, nursing home or whoever — violated the standard of care. The MRP ruling would be admissible in court but non-binding.

The part that the trial lawyers gloss over: If the patient does not agree with the MRP ruling, he or she can still go to court and sue the provider. MRPs do not “close the courthouse door” on injured plaintiffs. Indeed, the statute of limitations would be tolled during the MRP process.

The point of MRPs is to quickly sort valid claims from frivolous ones. This is good for both plaintiff victims and defendant health care providers. Litigation is stressful and time-consuming for both sides of a suit. It is not uncommon for a case to take several years before it gets to a jury.

Victims should be compensated if a medical provider was negligent, that is, did not act the way a reasonable medical provider in the same circumstances would have acted, resulting in injury. MRPs provide a path for victims to be compensated in months, rather than years. And because of the streamlined process before a panel of three doctors — essentially experts — the victim should be able to keep a higher percentage than he would with the typical contingency fee case, where a trial lawyer has to hire expensive expert witnesses to testify at trial.

Most medical malpractice cases that go to a jury result in the plaintiff losing. If a plaintiff is going to lose eventually, far better to find out sooner rather than later. That allows the plaintiff to move on and saves the judicial waste of a needless jury trial.

On the other hand, if the MRP finds that a health care provider violated the standard of care, that reality check counsels the provider and insurance carrier to settle, quickly. The faster the settlement, the less money that is expended on needless defense costs. And the sooner the victim is compensated.

But parties to potential malpractice actions aren’t the only ones who could benefit from sorting valid from frivolous claims. Fear of being sued causes doctors to practice defensive medicine, running needless tests out of an overabundance of caution. High patient deductibles and co-pays have made patients more cost-conscious: unnecessary tests now come out of our pockets. All patients therefore have a stake in seeing MRPs enacted.

Without a mechanism like MRPs, the high cost of litigation leads insurers of health care providers to settle just to save the cost and uncertainty of going to trial; even frivolous claims are expensive to defend. That translates into higher insurance premiums for doctors, which in turn drives up health care costs for all of us.

Malpractice insurance premiums, moreover, are an important factor in recruiting and retaining doctors to practice in Kentucky. We already have a shortage of physicians here, exacerbated by Gov. Steve Beshear’s expansion of Medicaid. That means longer wait times for all of us to get in to see our doctors.

Kentucky has a physician shortage in 47 counties. Sadly, these counties tend to have the highest percentage of chronically ill citizens. Further, Kentucky’s doctors are retiring faster than they can be replaced by graduates from local medical schools; the shortage will get worse. Anything we can do to stabilize malpractice insurance gives us a competitive advantage in recruiting young doctors to relocate here from out of state.

This will become particularly important when the two Ohio River bridges are completed, because Indiana has enacted MRP legislation. It is about to become much more convenient for a health care provider who wants to live in Louisville but work in Indiana to save on malpractice premiums.

MRPs are just one more example of where Kentucky is falling behind neighboring states with which we compete. Those out-of-state lawyers advertising on buses and billboards cannot vote in Kentucky. But they can and do donate to Democrat candidates for state representative.