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
Limiting a victim's access to the courts in this manner is unsound public policy and simply not justified. In addition to the above flaws, panels in other states have proven, in prac- t ice, to take up to four times longer than is provided for in the bills enacting them. For example, the Indiana law allows 180 days, just like SB 119 proposes, for the panel to issue a ruling. Studies show, however, a decade after the law was put in place, the process actually takes on average 23.4 months. 43 Patients – and anybody genuinely interested in patient safety – want accounta- b ility; a two-year delay in the ability to file a civil complaint thwarts this and further pro- motes less accountability. Having this mandatory screening process forced on those harmed in other contexts is unfathomable. What if a tenant seeking to file a claim against her landlord was forced to undergo a review by three Kentucky landlords who would issue a ruling on the claim's validity before a complaint could be filed? What if other fundamental constitu- tional guarantees were subject to a panel screening? Suppose a citizen wanted to speak out about a particular politician. What if, before making his or her statements to the public, a panel of three politicians had to approve the statement had value? One of the foremost experts on medical lia- bility, University of Pennsylvania Law Profes- sor, Tom Baker, sums it up: "We have an epidemic of medical malpractice, not of malpractice lawsuits." 44 So-called tort "re- form" – 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. The empirical evidence shows less accountabili- ty leads to worse patient-safety. It puts every one of us and our children, parents, other family and friends in danger, while ac- tually driving up, rather than lowering health care costs. Don't fall for it, Kentucky. Vanessa Cantley holds two Bachelor of Arts (B.A.) degrees, one in psychology and an- other in sociology. Since earning her law degree, Cantley has ex- perienced firsthand how her continued in- terest and research in those two disciplines help her serve her clients. Declining the opportunity to join several large defense firms after law school, Cantley founded Bahe Cook Cantley & Nefzger PLC with her partners–a firm dedicated to repre- senting injured individuals and families. She has consistently been voted by her peers as one of Louisville's top plaintiff's personal injury attorneys, was named a 2013 and 2014 Ken- tucky Super Lawyer, and is the youngest plain- tiff's injury attorney to earn recognition in her category. In 2012, Cantley created Storytime Heroes, a non-profit organization dedicated to providing reading materials and enthusiastic volunteers to read to children who are hospi- talized, in long-term care facilities, group homes and shelters. She currently sits on the governing boards of the Kentucky Justice As- sociation, where she is the incoming treasurer and current chair of the Women Lawyers Cau- cus, the American Association for Justice, and the Louisville Bar Foundation. She grew up in a small town in Indiana, where she is also li- censed to practice law. 1 To Err Is Human: Building a Safer Health System, Institute of Medicine (2000). 2 J ohn T. James, A New, Evidence-Based Estimate of Patient Harms Associated with Hospital Care, Journal of Patient Safety, 9(3), 122-128 (2013). 3 D eaths/Mortality, 2005, National Center for Health Care Statistics at the Centers for Disease C ontrol, at www.cdc.gov/nchs/fastats/deaths.htm. 4 Mary H. Graffam, The Web of Tort "Reform," A merican Association for Justice (2012), at www.justice.org/cps/rde/justice/hs.xsl%20/19614. h tm (The "litigation crises" myth was invented and has been perpetuated by an extremely well-fi- nanced group of the largest and wealthiest corpo- rations in the world and a well-coordinated, largely secret, multi-billion dollar campaign.) 5 Examining the Work of State Courts: An Analysis of 2008 State Court Caseloads, National Center for State Courts 2010. 6 Bureau of Justice Statistics, Civil Cases (2009), at www.bjs.gov/index. cfm?ty=tp&tid;=45. 7 Thomas H. Cohen, Federal Tort Trials and Ver- dicts, 2002-03, Bureau of Justice Statistics (2005). 8 Examining the Work of State Courts: An Analysis of 2008 State Court Caseloads, National Center for State Courts 2010. 9 Id. 10 Annual Report, 2006, National Practitioner Data- bank, www.npdb-hipdb.hrsa.gov/ pubs/stats/2006_NPDB_Annual_Report.pdf. 1 1 David M. Studdert, Michelle M. Mello, Atul A. Gawande, Tejal K. Ghandi, Allen Kachalia, Cather- ine Yoon, Ann Louise Puopolo, Troyen A. Brennan, Claims, Errors and Compensation Payments in Medical Malpractice Litigation, New England Journal of Medicine, 354;19 (2006). 12 Emily Heil, Survey: Patients Suggest Medical Er- rors Are Commonplace, Congress Daily, Novem- ber 17, 2004. 13 Amanda Gardner, Frivolous Claims Make Up Small Share of Malpractice Suits, HealthDay, May 10, 2006. 14 Wrong Site Surgery Project, Joint Commission Center for Transforming Healthcare. 15 Daniel R. Levinson, Adverse Events in Hospitals: National Incidence Among Medicare Beneficiar- ies, Department of Health and Human Services Office of the Inspector General (2010). 16 Annual Report, 2006, National Practitioner Data- bank, www.npdb-hipdb.hrsa.gov/ pubs/stats/2006_NPDB_Annual_Report.pdf. 17 The Fifth Annual HealthGrades Patient Safety in American Hospitals Study, HealthGrades (2008). 18 State Sen. Ray S. Jones, II (D-Pikeville), Medical Review Panel, A Way to Avoid Legal Responsibil- ity (March 17, 2014). 19 Id. 20 N ational Report Card on the State of Emergency Medicine, American College of Emergency Physi- c ians, 2006. 2 1 I d. 22 Patient Justice: Patients are Better Off in States W ithout Barriers to Justice, Texas Watch (January 2 008). 23 Praveen Dhankhar, M. Mahmud Khan, Shalini B agga, Effect of Medical Malpractice on Resource U se and Mortality of AMI Patients, Journal of Em- pirical Legal Studies, Volume 4, Issue 1 (2007). 24 D avid Hyman, Charles Silver, The Poor State of Health Care Quality in the U.S.: Is Malpractice Lia- b ility Part of the Problem or Part of the Solution, U niversity of Texas Public Law & Legal Theory, March 28, 2004. 25 J onathan Klick, Thomas Stratmann, Does Medical Malpractice Reform Help States Retain Physicians and Does it Matter, December 15, 2005, available a t SSRN: ssrn.com/ abstract=870492. 26 Despite being required to do so by law, 49 per- cent of U.S. hospitals have never reported a single d isciplinary action against one of their doctors since the National Practitioner Databank was cre- a ted in 1990. Annual Report, 2006, National Prac- titioner Databank, www.npdbhipdb.hrsa.gov/ p ubs/stats/2006_NPDB_Annual_Report.pdf. 27 Hillary Rodham Clinton and Barack Obama, Mak- i ng Patient Safety the Centerpiece of Medical Lia- bility Reform, New England Journal of Medicine, V olume 354:2205-2208, Number 21 (2006). 2 8 Health Care at the Crossroads: Strategies for Im- p roving the Medical Liability System and Preventing Patient Injury, Joint Commission on Accreditation of Healthcare Organizations (2005). 2 9 Daniel R. Levinson, Adverse Events in Hospitals: National Incidence Among Medicare Beneficiar- ies, Department of Health and Human Services Office of the Inspector General (2010). 30 To Err Is Human: Building a Safer Health System, Institute of Medicine (2000). 31 Wolters Kluwer, The Economics of Health Care Quality and Medical Errors, Journal of Health Care Finance, Vol. 39, No. 1 (2012). 32 American Medical Association, State Physician Workforce Data Book (2010). 33 Id. 34 Id.. 35 Catherine T. Struve, Expertise in Medical Malprac- tice Litigation: Special Courts, Screening Panels, and Other Options, Pew Project on Medical Liabil- ity (2003). 36 Id. 37 Annual Report, 2006, National Practitioner Data- bank, www.npdbhipdb.hrsa.gov /pubs/stats/2006_NPDB_Annual_Report.pdf. 38 To Err Is Human: Building a Safer Health System, Institute of Medicine, 1999; Mimi Marchev, Jill Rosenthal, Maureen Booth, How States Report Medical Errors to the Public: Issues and Barriers, National Academy for State Health Policy (NASHP), October 2003. 39 American Medical Association webpage on the National Practitioner Databank, www.ama- assn.org/ama/pub/physician-resources/legal-top- ics/business-management-topics/national-practiti oner-data-bank.shtml. 40 The Great Medical Malpractice Hoax: NPDB Data Continue to Show Medical Liability System Pro- duces Rational Outcomes, Public Citizen, (2007). 41 Brooks Egerton, Physician Misconduct Often Tol- erated by State Medical Board, Analysis Finds, Dallas Morning News, Oct.11, 2009. 42 Richard Connelly, Tracking "Eric the Red," Hous- ton Press (May 28, 1998). 43 James D. Kemper, Myra C. Selby, and Bonnie K. Simmons, Reform Revisited: A Review of the Indi- ana Malpractice Act Ten Years Later, Indiana Law Review 19:1129 (1986). 44 Tom Baker, THE MEDICAL MALPRACTICE MYTH (2005). 23 B&B; • 9.14 F E AT U R E : T O R T S