The Kentucky state Supreme Court unanimously declared that the state’s medical review panels, which required a panel evaluation of pending lawsuits, were unconstitutional. A constitutional amendment is being considered, which would re-establish these panels. However, medical review panels are not justified and do not improve the system for litigating wrongful death and other medical malpractice claims.
Last Nov., the Court unanimously found that these panels violated the right of access to the court system without delay by having to pre-approve the filing of lawsuits. A state Senator has introduced an amendment to the Kentucky constitution, which would require voter approval.
However, claims are now reviewed before filing. An attorney will represent a client only if a preliminary investigation shows that the client suffered patient harm, negligent care was provided to the patient and the arm was caused by negligent care in large part.
After a lawsuit is filed, both parties engage in pre-trial discovery where they exchange information and take testimony from witnesses and medical experts. Based on the evidence or lack of evidence obtained in this process, a plaintiff may choose to drop the lawsuit, or the parties may be encouraged to enter a settlement. Both sides may proceed to a trial if they believe they have a strong case. Medial review panels add an extra step that may delay lawsuits or their settlement and deter the filing of valid claims
Evidence also does not support the belief that these panels evaluate evidence more accurately than pre-trial discovery and litigation. In fact, filing a lawsuit is sometimes the only ways a patient may access information. Review panels do not stop frivolous lawsuits. Plaintiffs’ attorneys are discouraged from filing frivolous suits because they are paid through contingency fees where they are paid only if their client prevails in their lawsuit. Insurance companies vigorously fight all cases which causes disrepute to lawyers who are not prudent.
Also, panels do not lower the cost of liability insurance. Only 1.8 percent of all physicians were responsible for half of all malpractice payments in this country, which indicates that intervention or retraining of physicians would be more effective. An attorney can help victims of malpractice and their families navigate the legal system. They can help assure that their rights to compensation are pursued.