Bench & Bar

SEP 2014

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.

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ing to the American Medical Association, the number of physicians has been increas- ing for many years across specialties. 32 In 2009, the number of physicians rose to an- other record high, and continued a trend of an increase in the total number of physi- cians outpacing population growth in the U.S. once again. The number of physicians per 100,000 population is at an all-time high of 317. 33 Moreover, the number of physicians per 100,000 population is 21 percent higher in s tates without medical caps on damages than in states with caps (349 vs. 288). Here in Kentucky we have more doctors per capita than California, Indiana, and Texas, all of which have had medical tort "reform" measures, such as medical review panels, in place for a decade or more. 34 Yet, the insurance industry, hospital corpo- rations and their special interest cohorts are proposing as a solution so-called tort "re- form," beginning with medical review pan- els, to a phony crisis they invented – a "so- lution" which would decrease what is al- ready an incredibly low number of medical negligence claims and, in so doing, ac- countability in Kentucky's hospitals and oth- er medical facilities. Mandatory and admissible medical review panel screenings would create an entirely new bureaucracy that would further delay what is already a time-consuming process. In practice, it would require a victim to pres- ent his or her claim twice, and it would pre- vent many Kentucky victims from bringing claims on behalf of themselves or their loved ones. Attorneys would be deterred from taking on smaller or more difficult claims. With less than 500 claims of medical negligence being brought in the state of Kentucky each year, despite the staggering number of preventable injuries and deaths caused by medical errors each year, a poli- cy with the purpose of further decreasing claims is not only unjust, it is bad public policy and bad business. At least seven states have enacted medical review panels only to later repeal them, and five other states have found them unconsti- tutional. 35 Among these states is Arizona, which was one of the first proponents of the review panel policy. There have been four main constitutional challenges: That (1) mandatory panel screenings constitute an impermissible restriction on a person's right to access the court; (2) the panels raise a question of whether non-judges are given judicial authority in violation of require- ments for the separation of powers in both the U.S. and state constitutions; (3) the ad- missibility of panel findings disrupts the right to a trial by jury; and (4) constitutional scrutiny cannot be met when courts fail to find any evidence that there is a "malprac- tice crisis" at all. (Furthermore, research has found no evidence that screening panels reduce physician insurance premiums. 36 ) In Kentucky, any victim's advocate will tell y ou it is nearly impossible to get a Ken- tucky doctor to even review medical records in a claim against a Kentucky health c are defendant, let alone testify against him or her. The panels proposed in SB 119 would require a plaintiff to select a health care provider for the panel out of a list of three Kentucky professionals from the same field as the defendant. And this is the inher- ent problem with the proposed scheme. Hospitals and doctors have displayed time and again an inveterate unwillingness and inability to hold their own accountable. Hospitals are on the front line of patient safety and are required by law to review medical care through peer review and oth- er processes and report disciplinary action against their doctors to the National Practi- tioner Databank (NPDB). In spite of this, since the NPDB was created in 1990, 49 percent of U.S. hospitals have never report- ed a single disciplinary action against one of their doctors. 37 Despite research from the National Academy for State Health Policy (NASHP) demonstrating that there is no re- lationship between mandatory reporting and increases in malpractice claims 38 , the NPDB, which is the only national database of malpractice claims, is still closed to the public and has been deliberately under- mined by the American Medical Associa- tion (AMA), which goes so far as to offer its members a primer on "How to Evade a Re- port to the NPDB." 39 Moreover, state medical boards are sup- posed to discipline doctors who consistent- ly violate standards of care. Yet doctors continue to shirk their responsibility. Two- thirds of doctors who make 10 or more m alpractice payments over $250,000 are never disciplined in any manner. 4 0 Texas en- acted tort "reform," including caps on damages, which was supposed to increase medical board action. In the five years after the Texas "reforms" were enacted, only 15 percent of the medical board complaints led to any sanctions and, of the doctors who were disciplined, most only received a slap on the wrist. In one case, a neurosur- geon who conducted four wrong site sur- geries was ordered to attend 10 hours of continuing education classes. An emer- gency room physician who was unable to intubate a patient because he was drunk was ordered to attend therapy sessions and submit to urine tests. There were essentially no consequences for his actions – except for his patient, of course. She lost her life. 41 And then there's the story Dr. Eric Scheffey, an orthopedic surgeon who, during a two- decade career, left hundreds of patients dead or maimed. Dr. Scheffey lost his privi- leges at one hospital and simply moved to another. Then he lost his privileges at the second hospital and was allowed to move to a third. Predictably, he finally lost his priv- ileges at the third hospital, and admitted abusing cocaine. Yet, even after a judge recommended his license be taken away, the board allowed him to continue practic- ing. In 2005, after 24 years in practice and more than 78 medical negligence lawsuits, the board finally revoked his license. 42 If required to participate in this process, the victim of medical negligence will be forced to choose an extra critic who is predis- posed to bias against any negligence claim in his or her field and who, history and em- pirical evidence suggest, will be exceeding- ly reluctant to find against one of their local colleagues. Schemes like this not only harm victims' ability to exercise their constitution- al rights, they do not even result in the cost- savings that proponents promise. And, as the research detailed above clearly demon- strates, they result in a less safe environ- ment for patients with a greater risk of in- jury or death from medical errors, which only further drives up health care costs. 21 B&B; • 9.14 F E AT U R E : T O R T S "We have an epidemic of medical malpractice, not of malpractice lawsuits."44 So-called tort "reform" – including this medical review panel bill – is a solution in search of a problem. And, it isn't even a solution, because it will lead to less accountability in Kentucky's hospitals and other medical facilities. article continued on pg. 23

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