Are medical malpractice review panels just what the doctor ordered -- or unconstitutional?

Andrew Wolfson | Courier Journal

Show Caption Hide Caption What are the changes to Kentucky's medical malpractice laws? Here’s a rundown of changes to medical malpractice claims under a new state law that takes effect June 29.

When Tonya Claycomb’s son Ezra was born in a Louisville hospital with severe brain damage, she blamed it on medical errors and wanted to sue to recover the costs of treating his catastrophic injuries.

But she found her path to the courthouse blocked by a new Kentucky law that requires every medical malpractice claim to first go through a time-consuming review by a panel of healthcare professionals.

She refused. Instead, she sued to overturn the law, which Gov. Matt Bevin and House and Senate Republicans called the first step toward weeding out what they claim are frivolous lawsuits that have driven up the cost of liability insurance and have driven doctors out of Kentucky.

Claycomb won the first round when Franklin Circuit Judge Phillip Shepherd last October said the law was “strong on speculation but short on rationality,” and tossed it on 13 separate grounds.

But on Wednesday, the Bevin administration will get another shot as the Kentucky Supreme Court hears arguments on whether the Medical Review Panel Act is constitutional.

Related: Kentucky's effort to screen medical malpractice claims falls flat

In a brief, Bevin’s general counsel, Steve Pitt, said the panels allow both sides to get “a low-cost, unbiased evaluation of medical malpractice claims before being burdened with onerous litigation costs.”

He said it benefits claimants and health care providers alike by identifying potentially non-meritorious claims earlier in the process — and encouraging both to settle valid ones.

“More to the point,” he said, it makes potential litigants with meritless claims “think twice before filing suit.”

Pitt argued that Shepherd got it wrong in ruling the law violates every citizen's right to trial because plaintiffs can still file suit if a panel rules against them.

But in their brief, the Claycombs’ lawyers note that the Supreme Court has held that right to a jury trial — the only one deemed “sacred” in Kentucky’s Constitution — cannot be “annulled, obstructed or restricted."

By imposing a nine-month limbo before injured people can sue – as well as extra fees and costs – the Medical Review Panel law does just that, say the attorneys, Paul Casi II and J. Guthrie True.

They also say the act violates the right to equal justice under the law because it applies only to plaintiffs who want to sue medical professionals, as opposed to other classes of defendants.

And in protecting only medical professionals, they argue, violates the ban on “special legislation” inserted into Kentucky’s Constitution in 1891. In response to what one delegate called the “ponderous volumes of private acts passed” in prior decades to benefit “hordes of railroad and other corporations” while “fattening like vampires upon the people.”

The law applies to a broad array of health care professionals, from dieticians to speech pathologists, and requires that three practitioners evaluate each case.

Casi and True note that panelists can come from any field – that three social workers can be asked to decide whether a surgeon was negligent, while three surgeons could review a case involving a social worker.

The Supreme Court is likely to rule within a couple of months, and its decision may turn on whether there really is a malpractice crisis in Kentucky.

The Bevin administration insists there is. Pitt cites a 2013 study, commissioned by Democratic Gov. Steve Beshear, in which Deloitte Consulting found there were only 10,475 active doctors in Kentucky – 3,790 less than needed. The study recommended medical panels to reduce the cost of liability insurance premiums, which it identified as forcing doctors to flee.

Pitts also noted that premiums are far less in Indiana, where panels have screened cases since 1975.

Internists in Kentucky last year paid 37 percent more while surgeons and obstetrician-gynecologists paid twice as much as their Indiana counterparts, according to data collected by the Cunningham Group.

Experts say Hoosier doctors pay less because that state puts a ceiling on damages, an approach that would require a constitutional amendment in Kentucky.

Background: Want to sue your doctor for malpractice? Not so fast, Kentucky says

The Claycombs’ lawyers say the myth that Kentucky is awash in frivolous medical negligence suits is just that, a myth.

An estimated 440,000 patients die every year from preventable medical errors nationally, according to the Leapfrog Group, a non-profit organization that evaluates hospital safety, while far fewer malpractice claims are filed. Medical errors are the third leading cause of death in the U.S., trailing only heart disease and cancer.

“We have an epidemic of medical malpractice, not of malpractice suits,” Casi and True said in their brief.

Medical malpractice costs nationally represent only 0.05 percent of all health care expenses, they said, citing a Congressional Budget Office report.

And in Kentucky, such claims are a minuscule fraction of all litigation filed. For example, 531 claims were filed during the first 13 months of the medical panel law while 34,670 lawsuits of all kinds were filed in Kentucky courts last year.

Even lawyers who defend doctors, hospitals and nursing homes, such as Louisville attorney Scott Whonsetler, who has practiced for 35 years, say frivolous malpractice cases are rare.

He and others say it is too expensive for plaintiffs' lawyers, who often invest $100,000 or more of their own money in such cases, to bring them if they are bogus. And they know they can be sued or sanctioned for frivolous claims, he said.

Moreover, Kentucky juries are known for being friendly to doctors, as Jefferson Circuit Judge Charles Cunningham noted in a July 9 ruling in which he declined to dismiss a negligence suit brought against Norton Hospital by a widow who refused to file her claim with a review panel.

The plaintiff alleged her husband died because Norton doctors failed to properly treat his brain hemorrhage.

“If a doctor wants to decide where he or she will practice medicine based on whether a state (has review panels) then that doctor needs to look beyond the Commonwealth,” Cunningham said.

“But if she or he wants to practice where there are a slew of great defense attorneys, where juries give doctors every benefit of the doubt, where plaintiffs' verdicts are rare and awards are modest, then the Bluegrass State would be worth taking a look at.”

Andrew Wolfson: 502-582-7189; awolfson@courier-journal.com; Twitter: @adwolfson. Support strong local journalism by subscribing today: www.courier-journal.com/andreww

Insurance premiums for doctors in Kentucky and Indiana

Internists:

Kentucky: $7,603

Indiana: $5,522

General surgeons:

Kentucky: $33,551

Indiana: $16,567

Obstetrician-gynecologists:

Kentucky: $50,416

Indiana: $25,311

Source: Cunningham Group rates charged by MMIC Group