The Kentucky Supreme Court has once again struck down a professional liability reform measure – medical review panels – passed by the legislature, despite hard work by those who crafted the law with a specific desire to fit within the parameters of the state Constitution. Many thought this modest step, supported by a wide range of interests from physicians and hospitals to the business community, was a reasonable way to begin to improve the liability situation in our state. Whatever one might think of the Court’s opinion that cites the Magna Carta, the gist of the opinion appears to turn on whether the law violates the state constitutional provision that does not allow laws to “delay” justice.
We all know Kentucky has a problem recruiting physicians to the state and much of that is due to a lack of tort reform. Malpractice insurance costs play a part, but the real reason physicians want to practice in a state with tort reform is because they do not trust the justice system. They fear being hauled into a process that could take years to resolve, putting them, their practices, and their families through the stress of what many have labeled “jackpot justice.” I have witnessed the toll that this process takes upon caring, high quality physicians even though eventually exonerated of all allocations.
Stress is also felt by the patients in such cases who are attempting to recover real economic damages for which the whole process and delay can be devastating. Of course their recovery, if any is received, is reduced by the 20-50% attorney fees. Attorneys openly speak of the fact that they take cases not based upon the actual facts in the case but rather the likelihood of recovery when they have “a plaintiff that will make the jury cry.” The result is a lottery like system with few winners and others that are legitimately harmed that get nothing.
At the most recent annual conference of the Kentucky Bar Association, there was a seminar that discussed the significant decline in jury trials. Arbitration, settlements and other avenues of justice are apparently being used by those going through the civil legal process for reasons that most likely include the desire to avoid “delay” in seeking justice.
When it comes to seeking justice, people are voting with their feet and finding other avenues to settle their disputes rather than go through the agonizingly long and unpredictable process of a trial. Systemic procedures that encourage speedy resolutions are good for both parties and should be encouraged. But our Supreme Court views these matters through the lens of what they want the court system to be rather than what it is. That is what is so ironic about the opinion turning on the medical review panels “delaying” justice. They were in fact designed to speed up justice without having to go through the long and laborious process of a trial, but still leaving open that possibility. The modern way of settling disputes through means other than a trial, with systems to ensure speedy and fair justice for both parties, is being used quite effectively in other states. Unfortunately, for now we must remain tied to the systems of the past – slide rule justice instead of modernity.
The medical profession has at times had to take a long hard look at itself. It isn’t easy to change. I hope the judicial system sees its flaws and wakes up to the reality that public trust is vital, especially when actions can have profound implications to the public health and welfare, as well as economic vitality. I hope the Court acts to address the problems inherent in our legal system in a way that makes Kentucky a model for civil justice reform.
KMA’s official statement on the medical review panel decision is available here.