Federal judge sets trial date for state's ban on most common type of second-trimester abortion; meanwhile, law remains suspended

A federal judge has ruled that a new law banning a common abortion procedure called dilation and evacuation, or D&E, after roughly 11 weeks will not be enforced in Kentucky until after a trial is held in November.

The order from Chief Judge Joseph H. McKinley set the trial for Nov. 13 after vacating the preliminary injunction hearing that had been scheduled June 5.

The new law banning the procedure, except in cases of medical emergencies, was House Bill 454, sponsored by Rep. Addia Wuchner, R-Florence. It passed the state Senate 31-5, and the House 75-13. The law went into effect immediately after Gov. Matt Bevin signed it on April 10.

McKinley delayed the enforcement of the law through a joint consent order April 12 after the American Civil Liberties Union filed a lawsuit arguing that the law is unconstitutional. A federal court struck down a ban on the procedure in Texas, and similar bans have been temporarily blocked in other states while they await litigation.

A D&E abortion, which is the most common kind of second-trimester abortion, involves dilating the cervix and removing the fetus using suction and surgical tools. If the law is upheld, abortion providers found in violation would be guilty of a felony that carries a prison sentence. Women undergoing the procedure would not be prosecuted.

Bill for panels to review lawsuits against health-care providers passes Senate, gets off House fast track but still headed for law

Editors: This story has been updated to reflect action that took place after its initial publication.

By Melissa Patrick
Kentucky Health News

FRANKFORT, Ky. – A bill to require a panel of three physicians to determine if lawsuits against health-care providers have merit before being filed in court has passed the Senate will likely become law next month.

Sen. Ralph Alvarado

Senate Bill 4, sponsored by Republican Sen. Ralph Alvarado, a Winchester physician, cleared the Senate Health and Family Services Committee on an 8-3 vote Jan. 3 and passed the full Senate 23-13 on Thursday, Jan. 5.

It would establish panels of three medical experts, two chosen by each side and the third chosen by the other two, to review suits against health-care providers to determine if the case has merit before the lawsuit can proceed. Panel findings would be admissible in court, but not legally binding.

Such legislation has passed the Senate before, but died in the House, which was controlled by Democrats. The bill was on a fast track to pass the House Saturday, with other priority bills of the new Republican majority, but freshman Rep. Jason Nemes, R-Louisville, said on Facebook that at his request, action on it was delayed until legislators return in February.

Last year's Senate committee debate on the legislation took about two hours. This year's consumed about 20 minutes.

"These review panels are a reasonable, common-sense approach that protects caregivers and their patients," he said. "It does not limit, delay or deny a plaintiff's access to courts, any claim can still proceed. It does not create additional cost for a patient or their family to sue a health care provider. It does not bind a jury from determining findings of fact and conclusions of law. It does not create an additional layer between the citizen and the courts. It does add a layer of accountability for health-care providers and personal injury lawyers."

Such lawyers are represented at the legislature by the Kentucky Justice Association. Liz Shepherd, president of the group, said it recognizes that the political environment has changed but still wants "a seat at the table" to protect citizens' rights under the Seventh Amendment to the U.S. Constitution.

"We want to be part of the solution, but at the same time protect a client's right to trial by jury," Shepherd said. "There are a lot of public reports that show a small percent of doctors cause most of the medical negligence claims, and what we are concerned about is that there will be a wholesale change with unintended consequences that is really there to address the problems of a very few doctors and very few attorneys."

In support of the bill, David Adkisson, president and CEO of the Kentucky Chamber of Commerce, pointed out that all of the states bordering Kentucky have some kind of tort reform. "In the business community, we think it's time for Kentucky to catch up and make this a better place for medical providers to operate and for consumers to purchase health services," he said.

Alvarado said the panels are expected to issue an opinion on the claim within six months of the panel's selection. He said that under the current process, cases can take up to four years to litigate.

Sen. Reginald Thomas, D-Lexington, said testimony in previous years said such panels in other states take up to two years to issue an opinion, thus delaying the time it takes plaintiffs to get their claims heard.

“I vote no, because I believe every person who is a citizen of the state should have access to the courthouse door," Thomas said. "I believe in justice. I believe in everyone having their day in court. Everyone has a right to be heard.”

Alvarado disputed Thomas's assertions, saying that his research from Indiana's program found that the review process is timely and "works very well." He also said if both parties want to bypass the review panel, the bill allows for that.

Sen. Tom Buford, R-Nicholasville, voted for the bill, but said he had some concerns that the review panel is made up entirely of medical professionals, which he said, "I think is a mistake for the justice of the individual."

Ky. nursing homes say number of citations alleging 'immediate jeopardy' to residents show 'excessive regulation' by state

Kentucky's nursing home industry says it is under "excessive regulation," but The Courier-Journal reviewed more than 100 reports of state inspections of Kentucky nursing homes over the past three years and found "multiple instances" where residents had been "threatened, ridiculed, slapped, injured or sexually abused" or "lived in squalid conditions amid urine, feces, mice and insect infestations," with several cases of residents dying because of "poor or neglectful care," Deborah Yetter reports for the Louisville newspaper.

Kentucky nursing home representatives note that Kentucky nursing-home inspectors are more likely to cite violations that place residents in "immediate jeopardy" than inspectors in other states, "even though Kentucky nursing homes compare favorably in other categories, such as staffing or quality measures," Yetter writes.

An immediate-jeopardy violation is one that causes harm, serious injury or death, or is likely to do so. It carries fines of up to $10,000 a day, and "Some of Kentucky's 289 nursing homes have been fined nearly $16 million in the past three years for violations," Yetter reports.

Betsy Johnson, former state Medicaid commissioner and executive director of the Kentucky Association of Health Care Facilities, the main nursing-home lobby, said at a legislative committee meeting Sept. 16 that Kentucky has a "broken regulatory environment" and that the rules to ensure the safety of residents are "overly strict," Yetter reports.

"We firmly believe that the current regulatory environment only exacerbates the toxic litigation environment in Kentucky," Johnson said in a follow-up letter to the state's joint Health and Welfare Committee. The nursing home industry has lobbied for years for a state law to limit lawsuits.

Advocates counter that state oversight must not be weakened.

Brian Lee, executive director of Families for Better Care, a Florida-based nonprofit that advocates for quality nursing home care, said "lawmakers should consider details of violations before accepting the industry's claim of too much regulation," Yetter writes.

"If you look at these inspections, all of them, all of them ... this is serious stuff," Lee said. "It's not dust bunnies in the air vents."

Maryellen Mynear, inspector general for the Cabinet for Health and Family Services, told the committee in a letter, "The fact that an industry believes it is over-regulated does not make it so."

Mynear explained at the hearing that Kentucky inspects nursing homes on behalf of the federal government, and the U.S. Centers for Medicare and Medicaid Services determines the severity of a violation and how much to fine the facility, not Kentucky inspectors. She noted that the federal government provides most of the funding for nursing-home care, receiving nearly $1 billion from Medicaid in 2015.

Mynear listed the number of violations that were serious enough for fines over the past few years: 47 in fiscal year 2013; 53 in 2014; and 40 in 2015. She noted that only 36, or 12 percent, of Kentucky's nursing homes got the top five stars in the CMS rating system; and 42 percent of them rank below average, the largest percentage among the eight states in CMS's Southeast region.

Mynear acknowledged to the committee that "Kentucky's seemingly high number of immediate jeopardy violations may be skewed by the fact that some troubled homes rack up multiple or repeated citations," Yetter reports. But Mynear disputed Johnson's claim that citations lead to lawsuits and litigation costs for nursing homes, saying that "in several recent Kentucky lawsuits involving egregious abuse or wrongful death cases, no violations had been cited or fines imposed."

Some Republican lawmakers on the committee were sympathetic to the nursing homes' complaint. Sen. Ralph Alvarado of Winchester, a physician who has directed several nursing facilities, said, "Maybe we can reduce the cost to our residents and facilities just by decreasing the regulatory burden we have in long-term care."

Rep. Tim Moore of Elizabethtown suggested that regulators might be a bit over-zealous like Deputy Barney Fife in the "Andy Griffith Show." Moore said, "There were times when Barney applied the law in such a way that it really wasn't helping anybody and it was just a burden to everybody and Andy had to rein him in."

The meeting ended with an agreement for the nursing home industry and state officials to discuss areas of concern and possible resolution of disputes. "Mynear said that  she's willing to talk, but that doesn't mean her agency is willing to back down when it finds problems," Yetter writes.

The Courier-Journal offers these tips on how to check out a nursing home:

• Go to http://chfs.ky.gov/os/oig/  for inspection reports.
• Go to Medicare.gov/nursinghomecompare for a Medicare facility rating.
• Ask the nursing home for its most recent survey, or inspection. They are required to provide it upon request. 

Nursing home chain says it will lease its Kentucky facilities because legislature didn't pass bill to filter lawsuits

A major nursing-home chain says it will lease all of its Kentucky properties to a Texas company because a bill to insulate nursing homes from lawsuits did not pass the General Assembly this year,

Extendicare Health Services owns Pembroke Nursing and Rehabilitation Center, Shady Lawn Nursing Home in Cadiz and 19 other facilities in Kentucky, reports Nick Tabor of the Kentucky New Era in Hopkinsville. The company has been riddled with problems. A 2009 study ranked three of its Kentucky facilities among the country's worst nursing homes.

"The combination of a worsening litigation environment and the lack of any likelihood of tort reform in the state of Kentucky has made this the prudent decision for our company and its unitholders," said Tim Lukenda, president and CEO of Extendicare.

In this year's legislative session, nursing homes lobbied for a law that would have created medical review panels to evaluate potential lawsuits against nursing homes, personal-care homes and some facilities for the intellectually and developmentally disabled. The goal of the panel was to help eliminate frivolous lawsuits against the long-term care industry.

The Pembroke facility has been sued 20 times in Christian Circuit Court since 2002, and seven of the suits are still pending, Tabor reports. The others were dismissed, most with confidential settlements. (Read more)

Jury tells nursing home: Pay $8 million to estate of man whose legs employees broke; homes seek legislative insulation from suits

A Louisville nursing home was ordered to pay $8 million in damages last week to the estate of a retired surgeon whose legs were broken while he was being transferred from a chair to his bed at Treyton Oak Towers. He died less than two months later.

The incident happened to Dr. David Griffin in September 2008. Griffin, who had suffered a stroke, was put back in bed "like it didn't happen," attorney Matt Minner said. Employees reportedly were told to change medical records and cover up the act. Because of his condition from the stroke, Griffin couldn't tell anyone "about the agony he was in," Minner told The Courier-Journal.

Treyton Oak Towers plans to appeal the ruling. Its attorney, Scott Whonsetler, told newspaper that "Griffin had severe osteoporosis and doctors failed to inform nursing home employees of the diagnosis," Andrew Wolfson and Jason Riley report . "We categorically deny that there was any coverup whatsoever" after the incident, Whonsetler said.

The verdict, returned after about two hours of deliberation, includes $2 million for pain and suffering, $1 million for violating the state nursing home statute and $5 million in punitive damages. (Read more)

The verdict comes after the introduction of House Bill 361, which would establish medical review panels. Under the proposal, panel members would consider whether civil litigation against a nursing home is warranted before it is sent to court. The purpose of the panel would be to prevent frivolous lawsuits, but "could deny nursing home residents access to the courts of law," reads a press release by Kentuckians for Nursing Home Reform, a nonprofit organization that advocates for nursing home residents. The bill was introduced Feb. 1 but has not been posted for consideration by the House Health and Welfare Committee.