Franklin Circuit Judge Philip Shepherd has come down on the side of justice, and declared Kentucky’s new law regarding medical review panels is unconstitutional. The Courier-Journal cited Judge Shepherd’s order:
“The effect of the medical review panel process is not the reduction of frivolous negligence claims, but rather, the erection of barriers to the court system. Those that cannot afford the additional delays and costs should not be prevented from pursuing their constitutional right to a ‘remedy by due course of law.’ “
Plans to challenge the order are already being made by the Governor’s office, according to a spokeswoman. For now, however, the rights of victims of medical malpractice are safe in Kentucky.
Why Kentucky’s medical review panels posed a problem to malpractice victims
On June 29, 2017, Kentucky implemented a law that required victims of medical malpractice and nursing home abuse and neglect, to submit all lawsuits to the Cabinet for Health and Family Services. Once submitted, a panel of three medical providers and one attorney were supposed to review the case within 6 months of receiving it. Even if they felt no negligence had occurred, their opinion would be submitted, as evidence, into any lawsuit brought before a court.
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The State claimed this would cut down on the number of “frivolous” lawsuits brought against facilities each year. But as any plaintiff’s medical malpractice attorney, or victim of medical malpractice, could tell you, this assumption is based on myths.
First, there are very few frivolous medical malpractice lawsuits because the costly expenses associated with bringing these cases. Necessary expert fees and document production can cost hundreds of thousands of dollars if a case goes to trial; Crandall & Pera Law regularly takes cases that cost that much or more. All of those costs are paid out by the firm, because our attorneys work on contingency. If we took cases without merit, our firm would be bankrupted – and so would every other plaintiff firm in the country. In fact, that is one of many reasons most Crandall & Pera Law cases are referrals from other firms: we have the financial resources to prosecute even the most complex malpractice case.
Second, you have the right to a fair trial. An opinion submitted by doctors about doctors is hardly unbiased in and of itself; in a trial situation, it would be a boon to the defense, making the playing field unlevel. Furthermore, the doctors on the panel do not even have to practice in the specialty that caused you harm. As Judge Shepherd points out in his order, “a dermatologist or social worker might be called upon to render an opinion about malpractice allegations against a brain surgeon.”
Finally, the fees of the panel – which could run to the thousands of dollars – would need to be paid by the party it sides with. Who do you think has more money: a hospital, or a single mother of three who cannot work because a surgical error left her unable to walk?
Judge Shepherd did the honorable thing, by ensuring justice for the victims of medical malpractice. We have fought against this law before, and we will fight against it in the future, if it is challenged by the state. Crandall & Pera Law will always fight for people who have been hurt by medical malpractice, another person’s negligent actions, or because of the abuse or neglect of nursing home staff. To learn more about our services, or to speak with a Kentucky injury lawyer, please call 877-686-8879 or fill out our contact form. We also offer injury and medical malpractice services in Ohio: 877-686-8879.