Kentuckians’ right to sue for malpractice

Now that the Supreme Court has unanimously restored Kentuckians’ right to sue for malpractice, one option for Gov. Matt Bevin and other Republican politicians, medical providers, nursing-home owners and the Chamber of Commerce is to take their case directly to voters via a constitutional amendment.

That could be a tough sell, though, as long as medical errors are, according to one study, this country’s third leading cause of death (behind heart disease and cancer) and as long as Kentucky nursing homes are doing such things as not noticing for nine hours that a wheelchair-bound patient has crashed down a stairwell and died. (The death of Bobby Crail was detailed by the Herald-Leader’s John Cheves in September in an investigation that also reported that Kentucky nursing homes collectively have some of the nation’s worst ratings for quality of care.)

Tort reformers warn that “frivolous” lawsuits are driving up costs and driving out doctors. But this will ring false for anyone who (or knows anyone who) has tried to get a lawyer to take a malpractice case, even the lawyers who troll for clients on television and with billboards.

Most malpractice claims are handled on a contingency basis: The lawyers assume the risk of preparing the case and paying the expert witnesses and are paid only if their client collects financial damages. We all want to trust our doctors, so it’s understandable that juries are sympathetic to physicians. All that means that lawyers don’t take malpractice cases unless the evidence is strong and the harm significant.

Those curbs on “frivolous” suits already were in place when the legislature, newly under total Republican control in 2017, erected a new official barrier: Before taking a malpractice claim to court, the person making the claim must first submit it for review by a panel of three medical providers. The point was to discourage claims through delay that also increases the costs of suing.

The Nov. 15 Supreme Court ruling that this delay violates Kentuckians’ rights is rooted in all four of the state’s constitutions dating back to 1792. The legal principle that justice delayed “is a kind of denial” dates at least to 1641 in England, as Chief Justice John D. Minton Jr. wrote in the majority opinion.

The barrier created by the 2017 law is not the usual sort of delay one expects in litigation, Minton wrote; instead it’s “an untenable restriction” on an individual’s constitutionally-guaranteed access to the courts. Only if both parties agree to binding arbitration or to bypass the review, could this “mandatory delay” be avoided.

After Franklin Circuit Judge Philip Shepherd ruled that the law was unconstitutional, the Court of Appeals still allowed it to take effect. So we know its results: A boondoggle of a backlog. Based on state data, Courier Journal reported in August that only 11 percent of 531 claims had been assigned to a review panel and that findings had been released in just three percent. Another five percent were withdrawn, settled or dismissed.

Sen. Ralph Alvarado, R-Winchester, a physician and sponsor of the overturned review-panel law, said he is considering next steps, including putting an amendment on the ballot in 2020. Alvarado is literally on the nursing home industry’s payroll, as Cheves also reported, as medical director of five Central Kentucky nursing homes.

The best outcome would be for the medical profession and nursing homes to protect patients by better policing themselves, and for the state to hold errant providers more accountable.

More likely, though, tort reformers will spend a bundle trying to convince Kentuckians to voluntarily surrender some of their rights.

The Lexington Herald-Leader