Medical errors take the lives of tens of thousands of people and injure many more every year.
The toll is truly terrible. But legislatures sometimes make it even worse by trying to place restrictions on the ability of injured people or their families to bring lawsuits seeking to hold negligent medical providers accountable.
In Kentucky, a recent ruling by the state supreme court struck down one such effort. In this post, we will use an FAQ format to update you on that ruling and the process for bringing legal action seeking compensation for injuries caused by medical malpractice.
How common are medical errors?
Medical errors claim more lives in America every year than any cause of death other than heart disease and cancer. A recent study from Johns Hopkins put the figure for loss of life at more than 250,000 people annually. Other reports put it even higher.
This is not a new issue. For nearly 20 years, researchers have been calling attention to it.
Advocates for change within the medical profession are trying to get the Centers for Disease Control (CDC) to collect better data on medical errors. This data would help in developing initiatives to improve patient safety.
Have payouts on lawsuits for medical malpractice in Kentucky been increasing?
Not in terms of the total amount paid out. The amount of medmal claims awarded in Kentucky has gone down, not up, in recent years.
In the decade from 2005 to 2015, it decreased from $61 million to $41 million.
What did the Kentucky General Assembly do to try to limit medical malpractice claims?
In 2017, the General Assembly passed a law requiring a case of alleged medical negligence to first be considered by a medical review panel, before being allowed to go to court.
The panels were to be in the state Cabinet for Health and Family Services, not the courts. Membership was to consist of three medical providers and an attorney to serve as chairperson. The panel was to have up to nine months to determine whether the prospective medmal claim had enough merit to go forward in the courts.
Lexington attorney Christopher Goode was among the most outspoken critics of the new law. “The medical review panels are all about delay,” he told the Lexington Herald Leader. “For nursing home plaintiffs who are elderly or sick, it’s even more punitive because you’re basically running out the clock on them.”
The new law on medical review panels also quickly drew a legal challenge. The challenge argued that requiring a mandatory review panel before a plaintiff could get access to the courts violates Section 14 (the open-courts provision) of the Kentucky Constitution.
What happened when the medical review panel law was challenged in the Kentucky courts?
On November 15, 2018, the Kentucky Supreme Court struck down the law requiring medical malpractice plaintiffs to go through medical review panels before proceeding with a lawsuit.
The court found that the review-panel law violated Section 14 of the Kentucky Constitution, which upholds open access to the courts to injured people.
How important is it to find a strong plaintiff’s attorney when seeking to bring a medical malpractice case?
It is critical.
Even without a medical-review panel to get past, you will need to gather substantial evidence to build a credible case for trial or settlement. A skilled attorney who believes in the merit of your claim can provide the resources to make this happen, in exchange for a percentage of your potential recovery.