The Bench & Bar magazine is published to provide members of the KBA with information that will increase their knowledge of the law, improve the practice of law, and assist in improving the quality of legal services for the citizenry.
Issue link: https://kentuckybenchandbar.epubxp.com/i/382597
pert verifying that the consultation has oc- curred. 10 A number of the states that re- quire an affidavit or certification from the consulted physician have specific require- ments for the contents of the affidavit, while some go so far as to require that an "ap- propriate specialist" be the one to sign the affidavit. 11 Given that a plaintiff's attorney should at least have consulted with a physi- cian or some sort of healthcare practitioner prior to filing suit, this reform option would not necessarily impose any greater burden on a plaintiff than what is already expected of him. While some plaintiff's attorneys may object to having to show their hand too soon, it seems reasonable for them to make such a marginal showing when there is so much at stake. Pretrial screening panels, such as the ones currently used in Indiana, aim to reduce the amount of non-meritorious lawsuits that are filed or go forward to the court. In Indiana, lawyer authored submissions are tendered to a three-member panel consisting of physicians who practice the type of medi- cine at issue. The panel members are se- lected by the parties, as well as the presid- ing attorney. The panel's determination in favor of the physician, while not binding, is admissible in any subsequent litigation. The Kentucky General Assembly recently con- sidered adopting such medical review pan- els, as discussed further below, but the bill stalled in committee. Health courts offer another unique alterna- tive to traditional civil litigation. In theory, health courts would function much like workers compensation tribunals by remov- ing medical negligence actions from civil courts and placing them within the purview of a medically knowledgeable administra- tive tribunal. 12 It is difficult to dispute that medical negligence actions are technically involved, detail oriented, and highly fact and medicine specific – factors that can be overlooked by some jurors. In theory, health courts would be able to wade through the emotional, superficial, or extra- neous presentations and focus on the key medical issues. The obvious downsides to health courts relate to public policy and constitutionality. 13 While alternative dispute resolution efforts in medical malpractice actions can stall at the outset due to lack of physician consent to settle, there are proponents of alterna- tive dispute resolution who feel some form of mediation – even if emotional rather than monetary – might be a productive al- ternative to medical malpractice litigation. Therefore, it may be worth considering to attempt pre-suit alternative dispute resolu- tion, depending upon the reasonableness of the parties. The downside to alternative dispute resolution, as previously men- tioned, is that all settlements, no matter how small, must be reported by physicians to the National Practitioner Data Bank. This mandatory reporting requirement, unfortu- nately, sways physicians away from nominal settlements, especially in instances where an adverse event occurred due to a known complication or the physician simply be- lieves he or she has done nothing wrong. 14 It is possible that alternative dispute resolu- tion might be utilized more if the National Practitioner Data Bank reevaluated its re- porting requirements for settled claims. As mentioned above, the Kentucky Senate recently considered and passed a form of medical malpractice reform which these au- thors believe was a step in the right direc- tion. Senate Bill 119, proposed by Sen. Julie Denton, R-Jefferson, and Sen. Chris Girdler, R-Somerset, during the most recent legisla- tive session, promised a possible and plausi- ble effort at reform, but unfortunately it stalled before it made any significant head- way. The bill called for the creation of a med- ical review panel system in Kentucky for use of litigating all claims against health care providers, whereas previous efforts at reform focused only on long term care facilities. The language in the bill is very similar to Indiana's medical review panel system, which has been in place for nearly 40 years. Notably absent, however, was any mention on caps or limits on recovery, which are tied to Indi- ana's medical review panel system. All in all, the proposed medical review panel system was quite reasonable when compared to the current system in Kentucky. Even so, and de- spite having made it through the Kentucky Senate, the bill never made it out of the House Health & Welfare Committee. There are several benefits to tort reform, a side from addressing the associated finan- cial and emotional costs of litigation. Some studies have found that tort reform is asso- c iated with a resurgence in the number of physicians in a state or in particular area in the state. For example, following the imple- m entation of a comprehensive tort reform bill in 2003, Texas experienced a significant increase in the number of physicians in the state as compared to the state population, with the effect most prominent among pri- mary care physicians and surgeons. 15 Simi- larly, some studies have identified a direct connection between the enactment of tort reform and increased physician supply in the area impacted by the reform. 16 One of the first problems with even ad- dressing the issue of reform, let alone struc- turing a fair and viable system that would pass constitutional scrutiny, is finding sup- port in the legal community. While our brothers and sisters in the Kentucky Justice Association have shied from even a guard- ed flirtation with medical malpractice re- form and our counterparts in the Kentucky Defense Counsel have remained mute for fear of killing the golden – or perhaps bronze – goose, dialogue, at the least, seems overdue. All members of the bar – our lawyer-legislators included – owe it to both patients and medical providers – their clients and constituents – to at least create and empower a serious, knowledgeable, and respected commission to address our current system and possible alternatives. We would recommend creating a commit- tee consisting of several Kentucky Justice Association members and several Kentucky Defense Counsel members, all of whom practice in medical malpractice, who could collaborate, along with the healthcare or- ganizations that supported Senate Bill 119, to examine the most recent legislative ac- tion designed to obtain medical malprac- tice reform, consider why it was unable to get out of the House committee, and refor- mulate a bill capable of enactment. It also might be worth reviewing other methods of tort reform enacted and implemented in other states, especially the system in Indi- ana given its longevity, to consider what has worked and what has passed constitu- tional muster to determine what could work for Kentucky. 20 B&B; • 9.14 F E AT U R E : T O R T S Tort reform – if undertaken – should not be a mere reflection of national politics. Instead, it should be a product of consensus, painstakingly molded in the spirit of compromise, recognizing that concessions must be made by all participants and that absent a measure of "pain" there will be no "gain." article continued on pg. 22