For the last six years, Senator Ralph Alvarado (R-Winchester) has sponsored Senate Bill 6 and met with failure in the House. The bill proposes to create review panels that would screen medical malpractice claims for patients seeking judgment. While the Bill has been amended several times, the primary goal remains the same. In fact, we wrote about this issue at the same time last year.
What they want you to believe
Senator Alvarado believes that the creation of review panels would save time and money for those pursuing a medical malpractice claim. The review panels would be chaired by an attorney and populated by three physicians. One of each of the physicians would be chosen by the plaintiff and defendant, and the partially formed committee would select the third.
Supporters of the bill maintain that the creation of these panels would accomplish three main goals. They believe that SB 6 would:
- Prevent frivolous lawsuits and save time and money for claimants.
- Reduce the amount of malpractice claims.
- Reduce the amount of time it takes to resolve a malpractice claim.
Why the reality is such a terrible idea
The big hype centers on the time period for review; press about the bill "claims" that the panel has 30 days to decide the merit of a case. Unfortunately, and as usual, this isn't the full story. As a matter of fact, it's not even the right story.
Medical malpractice cases are incredibly complex. They can involve multiple acts of negligence from multiple providers, and even a specially convened panel of three doctors will likely not have the expertise necessary to evaluate a claim. Additionally, the 30-day time frame is not just a misrepresentation; it is an outright lie. Based on the language in the bill, it can take an average of six months just to file a claim. The entire time you are waiting for your claim to come before this panel, you'll need to foot your doctors' bills, deal with losing your income, and living with the pain of your injury. Our review of other states' experience with review panels demonstrates that the average time to file a claim is closer to 18 months.
Senate Bill 6 is a solution in search of a problem, and it is a terrible solution. The following are the counterpoints to the goals of SB 6:
- There are already stiff penalties in place for bringing frivolous lawsuits.
- Reducing malpractice claims comes from reducing malpractice, not tort reform.
- Convening specialized panels for each case will greatly increase the amount of time it takes to get a case to court, not decrease it.
The candidate selection process for the review panel would require doctors, working with a lawyer, to decide whether a claim had merit before it was tried in court. The panel is made up of local doctors who are far more likely to side with their colleagues than with you, if for no other reason than they know that someday they may be sitting on the other side of the table awaiting judgment rather than being the Judge. Following their decision, the panel would publish an expert opinion that could be used at trial. That opinion would be virtually un-appealable. If the panel gets it wrong, if a mistake is made in the process, if the judgment is unfair, you will have little to no legal recourse moving forward, because the legislature has essentially taken away your right for a fair impartial trial by your peers - a right that is guaranteed by the Kentucky constitution, as well as the United States Constitution.
The 7th Amendment guarantees the right to a trial by jury. When a jury is convened to hear a case, the members of the jury are members of the community. In this way, trial by jury ensures that a community is able to regulate conduct locally. In this way, a community is given a voice to the benefit of all. It is unfathomable that doctors should be shielded from judgement by the community. No other profession is given such an elite status. If this bill is allowed to pass, why shouldn't every person only be judged by someone who works in the same field as them? Shouldn't engineers, teachers, lawyers, electricians and heavy-machinery operators be afforded the right to a review panel of their friends, rather than be judged by randomly selected members of their community? Fortunately, that is not the way the system works. Lawyers and judges go to great lengths to educate the uneducated jury about the issues so that they can make a fair and impartial decision.
At Crandall & Pera Law, we fight for your rights. All citizens are entitled to a trial by jury; the type of claim does not change that right. Victims of medical malpractice suffer enough. It is a bridge too far to take away their constitutional rights. We are vehemently against SB 6.
Medical malpractice is devastating to victims and their families. The dedicated and experienced medical malpractice attorneys at Crandall & Pera Law work to protect these victims and make sure justice is served. If you or someone you know has been the victim of medical malpractice, you may be entitled to compensation for your injuries. We can evaluate your case and help get you the compensation you deserve. Contact us today for a free consultation.