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Kentucky Medical Review Panels Become Law June 29 – What to Expect

Senate Bill 4 was signed by the Governor on March 16, and will officially become law on June 29, 2017.  Medical review panels are here to stay, and will have a tremendous effect on the state of medical malpractice law in Kentucky.  See below for a short summary of what you need to know.

 

  1. How it Works, Generally

 

The Medical Review Panel process begins when a plaintiff files a proposed complaint with the Cabinet for Health and Family Services, alleging that a health care facility or provider caused the plaintiff injury by failing to treat them within the standard of care.  This filing tolls the plaintiff’s statute of limitations.  Within 10 days, the Cabinet will serve the complaint upon each named defendant.  Ten days after that, the parties must agree on a panel chairperson, or pay the Cabinet $25 for a list of 5 potential chairpersons drawn at random within 20 days if they cannot agree.  The parties then take turns striking one name from the list (plaintiff goes first) until one name remains.

 

The Panel Chairperson will be notified by the Cabinet within 5 days, and must acknowledge appointment 15 days after being notified.  The Chairperson will then provide the parties with two lists, consisting of three names each, of providers in the specialty of one or more of the defendants.  The parties will then take turns striking one name from each list (plaintiff goes first again) until one name remains on each list.  The two panelists chosen will then choose the third member of the panel.  After all three are selected, within 5 days the Chairperson will notify the parties and Cabinet by certified mail of the formation of the panel.

 

The plaintiff then has 60 days to serve his or her evidence in written form upon the panel.  The only evidence that shall be permitted is medical records, imaging and labs, excerpts of treatises, depositions of witness and parties, and affidavits.  The defendant must serve his or her evidence 45 days after receipt of the plaintiff’s evidence.  Importantly, the Chairperson can extend these deadlines upon request of the parties.

 

After the evidence is submitted, the panel can request further information, consult with experts, examine reports of other providers or conduct a hearing to question counsel or parties.  After receipt of the defendant’s evidence, the panel must file its opinion within 30 days.  The opinion will take one of three forms:  1) the defendants failed to meet the standard of care and this failure caused the plaintiff’s injuries; 2) the defendants failed to meet the standard of care but this failure did not cause the plaintiff’s injuries; or 3) the defendants met the standard of care.  Two of the panelists must agree on the opinion, which is then drafted and served by the Chairperson.

 

Once the opinion is served upon the Cabinet and the parties, the plaintiff may go forward with filing his or her complaint in court.  The opinion will only be admitted upon motion, and upon a written finding by the court that the opinion will assist the jury.  Panel members can be called to testify regarding the opinion, subject to cross-examination.

 

  1. Be Ready to Act Fast

 

Once a complaint is served upon the Cabinet under this law, the defendant will need to have investigated the claim, interviewed and deposed witnesses and parties, consulted with experts and submitted their written evidence to the panel within approximately 180 days, or six months.  This will put enormous pressure on providers and their attorneys to prepare an entire defense in a short amount of time.  This will be further complicated by the fact that the defendant may not know the specific claims of the plaintiff until the plaintiff submits his or her written evidence just 45 days before the defendant’s evidence is due.

 

Defendants will need to be ready to quickly gather certified medical records, imaging and lab tests, as well as coordinate interviews and depositions of personnel who may be involved.  Attorneys who are preparing the defense will need to be ready with numerous potential expert witnesses who might be available to rebut the plaintiff’s claims or assist in citation to treatises which support the defendant’s care.  These steps will need to be completed while staying on top of numerous deadlines and administrative issues and coordinating the discovery process.

 

  1. Cost

 

The law requires that the party who prevails pays the expenses of the panel.  The expenses of the panel will consist of $350 for each panel member, $250 per day (up to $2000) for the Chairperson, as well as reasonable travel expenses.  In addition, if panel members are called to testify in court, they can charge “reasonable compensation” as well as travel expenses.

 

The filing fee for filing a proposed complaint with the Cabinet has yet to be determined.  If a party files a motion in Circuit Court to appeal a discovery decision of the Chairperson the proceedings of the panel are stayed until a ruling is reached.  The motion must be accompanied by a copy of the proposed complaint and the Circuit Court filing fee.  Courts are also authorized to award costs and attorney fees to the prevailing party on these types of motions.

 

The other major cost that needs to be considered is the cost of the defendant’s attorney fees, expenses, and expert witness fees.  Many of these costs, which can typically be spread out over a longer period of litigation, will be compressed into a short time span of between six and nine months.

 

  1. Admissibility

 

It is difficult to determine at this point whether a loss at the medical review panel stage will dissuade many plaintiffs from pursuing their claim in court.  The opinion will be admissible upon motion, but will have no more effect than any other expert opinion.  Presumably, if the panel opinion is admitted as expert testimony against the plaintiff, the plaintiff will call their own expert witness to explain to the jury why the opinion of the panel was wrong.  Unfortunately, at trial the panel opinion will not be conclusive – it will just be one among a number of expert opinions shared with the jury about the defendant’s fault.  Juries may or may not give the panel opinion more weight and credibility than the opinion of a competing expert.

 

  1. Conclusion

 

Once this law goes into effect it will likely face numerous constitutional and procedural challenges.  Many plaintiffs’ advocates will argue that it restricts the access of citizens to the courts and that it violates the principles of equal protection of the law.  There will also likely be challenges finding attorneys who are willing to serve as Chairpersons for $250 per day, or physicians who are willing to serve as panel members for $350.  There will also probably be a large outcry from those physicians who are required to serve as panel members and compelled to testify in court.

 

However, despite the many potential difficulties, it is possible that this law will reduce the costs to defendants associated with malpractice claims by weeding out frivolous claims and encouraging quick and reasonable settlements.