House sends medical review panel legislation back to Senate for concurrence on 51-45 vote

03/01/2017 07:12 PM

FRANKFORT — The state House of Representatives passed a bill creating medical review panels in malpractice cases on a 51-45 vote Wednesday, sending Senate Bill 4 to Gov. Matt Bevin’s desk if the Senate agrees with changes made by the lower chamber.

SB 4, sponsored by Sen. Ralph Alvarado, R-Winchester, cleared the House despite a variety of concerns from Republicans and Democrats alike, namely that the bill might not pass constitutional muster.

The legislation would establish four-member panels to review evidence in medical malpractice lawsuits before rendering an expert opinion on whether the defendant physician acted appropriately. Those panels would be made up of a non-voting attorney, who would chair the group, and three doctors.

Rep. Robert Benvenuti, R-Lexington, said SB 4 would help Kentucky attract more physicians, who would not have as much fear that they’d be sued. The legislation might also help speed up the mediation process, he said.

“There is no question ladies and gentlemen that we have to start bringing some liability reform to our commonwealth,” Benvenuti said. “We are a target-rich environment for lawyers.”

Eleven Republicans joined Democrats in opposing SB 4, making its six-vote margin one of the tightest in the House thus far.

Some who spoke said the legislation would negatively impact patient safety while others questioned the constitutionality and effectiveness of the measure.

SB 4 “does absolutely nothing for the patient,” said Rep. Tom Burch, D-Louisville, and “substitutes the judgment of our elected citizens for a self-interested few,” said Rep. James Kay, D-Versailles.

“When a tractor-trailer careens into a family van, we don’t ask truckers to decide whether the victims have their day in court,” Kay said. “When a bank forecloses upon a family home, we don’t ask bankers to make the judgment of whether they have a case. Our Constitution was founded upon the truth that no government shall have the power to take away our freedoms.”

Rep. Chad McCoy, R-Bardstown, said medical review panels could actually increase the number of medical malpractice suits filed.

The husband of a doctor, McCoy also said it would be “absolutely ridiculous” to expect his wife and other physicians to serve on a medical review panel, poring over thousands of documents in complex cases, for the $350 outlined in SB 4.

He instead pushed for affidavits of merit, wherein an expert weighs in on the merits of a case, as an alternative to medical review panels.

“I just want you to know there’s a better option, and the option is that affidavit of merit,” McCoy said.

“There are 27 states in the country that do the affidavit of merit process,” he continued. “It works, it’s efficient, and I’m afraid that Kentucky is going backwards, not forwards. We’re certainly not taking the bold step that we could have, and instead we’re passing something that ultimately is not going to work and is unconstitutional.”

But Rep. Jason Nemes, a Louisville Republican who helped draft a committee amendment, said changes to SB 4 in the House made the measure constitutional, particularly in terms of whether the review panel’s opinion would be admissible in court. That decision is left to the judge in the House version of HB 4.

Nemes called concerns that plaintiffs in malpractice cases wouldn’t have access to jury trials “a red herring,” noting that the review panel would need to render an opinion within nine months.

“I would not have voted for it if it was the Senate’s version of Senate Bill 4 rather than the committee (substitute),” he said.

SB 4 now heads to the Senate for concurrence or nonconcurrence with the House’s amendments.


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