Taxpayers pay malpractice awards involving federally qualified health centers; in Kentucky, $7.7 million was paid in 2018-2021

By Melissa Patrick and Al Cross

Kentucky Health News

Federally qualified health centers, or FQHCs, are very important parts of the health-care delivery system for the poor in Kentucky, largely because they can't turn anyone away and charge patients based on their income. In return, they get an annual grant and higher reimbursements from Medicaid and Medicare — and, for the vast majority of clinics, financial immunity from malpractice lawsuits.

The centers can still be sued for malpractice, but the federal government becomes the defendant and pays any settlements or judgments. That little-known aspect of FQHCs is examined in a story by Phil Galweitz and Bram Sable-Smith of Kaiser Health News, along with a list of the 485 payouts made on the centers' behalf from 2018 through 2021, totaling $410 million. 

Over that four years, Kentucky had nine payouts totaling $7,718,629, made on behalf of six health centers. Most of that, $5 million, was to settle a claim involving Sterling Health Solutions, based in Mount Sterling. The second largest, $2,082,337, was a judgment involving Big Sandy Health Care of Prestonsburg.

Both cases involved women's health care, which is often the object of high-dollar malpractice claims. Doctors say the cost and availability of malpractice insurance discourages opening such practices, especially in rural areas. 

Screenshot of Kaiser Health News' Kentucky list, adapted by Ky. Health News

"Malpractice lawsuits are a risk for all health-care providers and are just one barometer of quality of care," Kaiser Health News says. "The settlements and court judgments against the health centers don’t measure the clinics’ overall performance."

The clinics fill many needs. "Nearly half of the centers’ patients are covered by Medicaid, and 20 percent are uninsured," Kaiser reports. "Even lawyers who have sued on behalf of health center patients acknowledge the importance of the facilities. Rhode Island plaintiff attorney Amato DeLuca said that the health centers serve a vital role in the health industry and that he had found “a lot of really wonderful, extraordinarily capable people that do a really good job” at the centers. Yet everyone must be held accountable for mistakes, DeLuca said."

The biggest payments

Kentucky's biggest payment in 2018-21, $5 million, settled a $42 million claim by Rebecca Anderson and Randy Brooks of Montgomery County that their son, known in court documents as G.B., suffered severe and permanent injuries during and after his birth in 2015 because Dr. Byram Ratliff of Sterling Health Solutions failed to respond to fetal distress as evidenced on the fetal heart monitor strips prior to delivery. "Dr. Ratliff failed to institute prompt and proper medical care resulting in severe permanent injury," they alleged. "As a result, G.B. will require a lifetime of medical care and treatment."

A bench trial of the case was recessed for negotiations that resulted in a settlement, comprising $2.5 million of "upfront cash" to be held in escrow until all liens and claims in the case were resolved, and a $2.5 million trust fund for future medical care. The plaintiff's attorneys were awarded case expenses of $281,873 and fees of $1,250,000. Attorney fees in such cases are limited to 25% of the award. 

A document titled "Stipulation for compromise settlement and release" says the settlement is in no way an admission of "liability or fault."

Big Sandy Health Care was connected to the second largest amount paid in Kentucky during the four-year period, $2,082,337. This case was a medical negligence claim by Lisa Ann Crispen against Dr. Joanna Santiesteban, Dr. Enrico Ascani and Big Sandy Health Care for failure to diagnose uterine cancer. 

After a bench trial, Chief U.S. District Judge Karen Caldwell awarded the judgment, writing, "Chrispen proved by a preponderance of the evidence that Big Sandy's negligence in evaluating, diagnosing, and treating Chrispen's cancer caused her to suffer past and future lost wages, past and future medical expenses, past and future physical pain and suffering, and past and future emotional pain and suffering." 

The Kaiser list shows that another federal payment involving Big Sandy Health Care was made during the four-year period, in 2018 for $35,292.

Burkesville-based Cumberland Family Medical Centers was involved in the third largest payment, $225,000. This was in a case filed by Judy and John Courtier of Monroe County, alleging that the Tompkinsville center incorrectly transcribed a prescription from a rheumatologist, resulting in Judy Courtier taking a toxic amount of methotrexate (2.5 milligrams twice a day instead of two 2.5 milligrams tablets once a week), causing conditions that required hospitalization. The parties reached a settlement in October 2018.

The Kaiser list shows another federal payment involving Cumberland Family Medical Centers was made during the four-year period, in fiscal 2019 for $26,000.

The chain of clinics is Kentucky's largest federally qualified health center. It had gross revenues of $83 million in 2019, according to the Form 990 for tax-exempt nonprofits that it filed with the Internal Revenue Service. Kentucky nonprofits must also file the forms with the state attorney general's office.

Sterling reported 2019 revenues of $13.6 million. The latest filing at the attorney general's office from Big Sandy, for 2016, showed revenues of $19.5 million.

Family Health Centers of Louisville, which had 2019 revenues of $45 million, was involved in the fourth largest payment in 2018-21, $200,000. It settled a claim by Carolyn Boerste alleging failure to tell her that a radiology report noted she had a 12-inch-by-12-inch laparotomy sponge that snaked through her small intestine for 19 months before it was removed. 

Kentucky Health News offered the four health centers the opportunity to comment, but none did.

Other Kentucky payments in the four-year period involved Grace Community Health Center of Corbin, also called Grace Health; and Fairview Community Health Center of Bowling Green.

Why do taxpayers pay these settlements? 

To win congressional protection in the 1990s, federally qualified health centers "argued their revenues were limited and malpractice insurance would divert money that could better be used for patient care," Kaiser Health News reports. About 86% of the 1,375 clinics have this protection, which comes with a list of requirements. 

To get the protection, a clinic "must have quality- improvement and risk-management programs and must show regulators that they’ve reviewed the professional credentials, malpractice claims, and license status of their physicians and other clinicians," Kaiser reports. "Ben Money, a senior vice president for the National Association of Community Health Centers, said the process improves care and directs scarce operating dollars toward the needs of patients, versus costly malpractice coverage."

Patients who want to claim malpractice by a health center must file a claim with the U.S. Department of Health and Human Services, which can make a settlement offer or deny the claim. "If the claim is denied or not settled, or a six-month review period expires, the patient may sue in federal court under the Federal Tort Claims Act," Kaiser reports.

Here's a map showing the centers' locations in Kentucky (click on it to enlarge):

Map from the Kentucky Primary Care Association; to enlarge any image, click on it.

Bill on Bevin's desk would require a malpractice lawsuit to certify that an expert has said it has a reasonable basis to be filed

By Melissa Patrick
Kentucky Health News

A bill to require anyone filing a lawsuit against health-care providers to get a qualified expert to declare that the case has merit has passed the General Assembly and awaits the signature of Gov. Matt Bevin.

Rep. Chad McCoy

House Bill 429, sponsored by Rep. Chad McCoy, a plaintiffs' lawyer from Bardstown, would require plaintiffs in most medical-malpractice lawsuits, including those against long-term care facilities, to file a "certificate of merit," defined as "an affidavit or declaration" saying that the case has been reviewed by a qualified expert who says "that there is reasonable basis to commence the action."

When presenting the bill to the House on March 1, McCoy, who is also the Republican whip, said all the lobbying interests on the malpractice-claims issue came to the table after the Kentucky Supreme Court struck down a 2017 law that required such claims to go before medical review panels before proceeding.

Chief Justice John Minton wrote in the court's decision, “Of all the rights guaranteed by state constitutions but absent from the federal Bill of Rights, the guarantee of a right of access to the courts to obtain a remedy for injury is possibly the most important.”

When the 2017 law passed, McCoy warned his colleagues that it wasn't constitutional, and suggested that the state instead require merit certificates or affidavits. This year, he told them the bill, if passed, would help to stop frivolous lawsuits. Earlier, he told the House Judiciary Committee that the bill was supported by the Kentucky Chamber of Commerce, the nursing-home association and the trial attorneys, and that the Kentucky Hospital Association was neutral.

The bill passed the House 69-24 on March 1 and the Senate 37-0 on the consent calendar that is used to pass bills without debate.

The bill has exceptions. It says a certificate isn't required if "the consultation could not reasonably be obtained" before the deadline to file a suit; if "the claimant or his or her counsel had made at least three separate good-faith attempts with three different experts to obtain a consultation and that none of those contacted would agree to a consultation, so long as none of those contacted gave an opinion that there was no reasonable basis to commence the action;" or if the plaintiff "intends to rely solely on one or more causes of action for which expert testimony is not required," including claims of lack of informed consent or the legal doctrine that says an accident implies negligence.

State Supreme Court strikes down medical review panels for suits against health-care providers; backers eye constitutional change

Filtering medical-malpractice lawsuits through panels of health-care professionals is unconstitutional, a unanimous Supreme Court of Kentucky ruled Thursday.

The General Assembly passed the law in 2017 at the behest of doctors and nursing homes, which had long lobbied for it, and also by "hospitals and other health providers as means to limit what they claimed were frivolous lawsuits," notes Deborah Yetter of the Louisville Courier Journal.

Franklin Circuit Judge Phillip Shepherd
(Courier Journal photo by David Lutman)

The court "said the law is unconstitutional because it delays access to the state’s courts for adjudication of common-law claims," Jack Brammer reports for the Lexington Herald-Leader.

Chief Justice John Minton wrote in the ruling, upholding Franklin Circuit Judge Phillip Shepherd, “Of all the rights guaranteed by state constitutions but absent from the federal Bill of Rights, the guarantee of a right of access to the courts to obtain a remedy for injury is possibly the most important.”

The bill's main sponsor, Sen. Ralph Alvarado, R-Winchester, said in August that if the law were overturned, he would favor a constitutional amendment to allow it. Section 64 of the state constitution bans limits on the right to recover damages, and business interests have long wanted to change or repeal it. When Republican Gov. Matt Bevin signed the measure into law, he called it it "the first step toward tort reform."

The Kentucky Medical Association said it was “extremely disappointed” because “Kentucky now remains one of the few states in the country with no meaningful tort reform.”

"The law requires that claims filed against doctors, hospitals, nursing homes, their executives and other health care providers must first be evaluated by panels composed of three medical providers before proceeding in court. The panels’ opinions could be entered as evidence in any subsequent litigation," Brammer recounts. "Shepherd struck down the law in October 2017, saying it 'protects the economic interests of the health-care industry at the expense of consumers, with no demonstrable benefit to the public at large.' The case bypassed the Kentucky Court of Appeals," but Shepherd allowed the law to remain in effect on appeal.

"The law had created a large backlog of several hundred malpractice cases awaiting assignment and review by state-appointed panels before they could proceed to court, while relatively few cases had been decided,' Brammer reports. "It's not clear what will happen to those cases now," Yetter writes.

Medical-review panel law described as ‘imperfect,’ with only 11% of 531 claims assigned to a panel after one year on the books

A Republican-backed law that established medical-review panels to screen lawsuits against health-care providers before they can proceed Is now a year old, and things have not gone exactly as proponents expected, Andrew Wolfson reports for the Louisville Courier Journal.

Source: Cabinet for Health and Family Services.
Courier Journal 

Just 11 percent of 531 claims have been assigned to a panel, findings have been issued in only 3 percent of the cases, and another 5 percent were withdrawn, settled or dismissed, Wolfson reports.

Proponents of the law, largely nursing homes, physicians, hospitals and others who claim to be subjected to frivolous lawsuits, have said the review panels would decrease the number of frivolous lawsuits and cut the cost of liability insurance for providers. Gov. Matt Bevin's administration has called the panels the "first step toward tort reform."

Opponents, including a Frankfort judge who found the law unconstitutional, say it unduly restricts people's access the the courts and is an infringement on the right to trial by jury.

"Even lawyers who defend doctors, hospitals and nursing homes say the process so far has been ineffective,” Wolfson reports.

“I’m not going to deny that the numbers aren’t good and it is an imperfect law,'' Betsy Johnson, president of the Kentucky Association of Health Care Facilities, which lobbies for nursing homes, told Wolfson.

And lawyers who represent injured people are even more critical.

“The delays aren’t fair to the citizens of Kentucky, many of whom may have been catastrophically injured or killed by negligence and whose families may need resolution of their claim in order to survive,” Louisville attorney Hans Poppe told Wolfson.

Others said the law needs more time.

"Any major policy change like the medical review panel process certainly takes time to implement, and it was expected that there would be hiccups,” said Patrick Padgett, executive vice president of the Kentucky Medical Association, told Wolfson.

Franklin Circuit Judge Phillip Shepherd ruled last October that the law violated 13 sections of the Kentucky Constitution, but it has been allowed to remain in effect while his ruling was appealed.

"The effect of the medical review panel process is not the reduction of frivolous negligence claims, but rather, the erection of barriers to the court system," Shepherd wrote. "Those that cannot afford the additional delays and costs should not be prevented from pursuing their constitutional right to a 'remedy by due course of law.' "

The appeal was argued this week and a ruling is expected in a couple of months, Wolfson reports in a separate article that details the case and includes comments from the opposing briefs.

Under the law, all claims against health-care providers must be submitted to a medical review panel  to determine its merit unless both sides agree to bypass the panel to take the case directly to court.

The panel is made up of a lawyer who serves as the non-voting chairman and three health-care professionals who determine if the suit has merit. The decision of the panel isn't binding, and claimants can still file suit even if the panel rules against them or issues no finding after nine months. However, the opinion can be used in court and the panelist called to testify.

The law includes lawsuits that involve physicians, hospitals, nursing homes, dietitians, podiatrists, EMS providers, dentists, dental hygienists, social workers, medical laboratories and speech language pathologists, Wolfson reports.

Senate passes medical tort reform bill, 20-16

By Melissa Patrick
Kentucky Health News

FRANKFORT, Ky. -- A medical tort reform bill passed the state Senate by an unusually close 20-16 vote March 1, with six Republicans and 10 Democrats opposing it. The vote raises doubts about the bill's prospects in the House.

Senate Bill 20, sponsored by Sen. Ralph Alvarado, R-Winchester, a physician, would limit contingency fees for attorneys in medical malpractice cases to 33 percent and keep apologies or expressions of regret by health-care providers from being used in malpractice cases.

A provision to keep medical peer reviews out of malpractice cases was removed from the bill because the legislature has already sent Gov. Matt Bevin a House bill with that provision.

The 33 percent limit was in a floor amendment adopted by voice vote and offered by Sen. Whitney Westerfield, R-Hopkinsville, chair of the Senate Judiciary Committee. It replaced original provisions that would have limited fees to 35 percent of the first $100,000 in damages, 25 percent of the next $100,000 and 10 percent of damages over $200,000.

Sen. Ray Jones, D-Pikeville, passionately opposed the bill in a floor speech. He said that it is a fundamental right of individuals to be able to enter into a contract and negotiate a fee amount with an attorney of their choosing. He added that limiting contingency fees will "prevent people from being able to get quality lawyers that will be willing to pursue their cases."

Jones, a lawyer, disputed Alvarado's assertion that Delaware has the same rules, saying the state allows attorneys and clients to contract around them. "This piece of legislation favors health care providers to the detriment of injured patients," he said.

The bill would also add to the review process that the legislature approved last year. Alvarado said that if a panel finds for the defendant, the plaintiff would be required to submit a sworn statement from a doctor saying that it has merit.

The bill would also change the law that allows any third party to be able to get medical records for free, which Alvarado said allows lawyers to go on "fishing expeditions" to find clients. The new rule would only allow patients free access to their own records. A floor amendment adopted by voice vote added an exemption for attorneys working without charge to have free access to their client's records.

Rep. Robin Webb, D-Grayson, a lawyer, also spoke against the bill. "This is against the medical consumer, it is against the patient, and once again against the right to contract and the free market principles that we hear so much about" from Senate Republicans, she said.

Republican senators voting against the bill were Tom Buford of Nicholasville, Jared Carpenter of Berea, C.B. Embry of Morgantown, John Schickel of Union, Wil Schroder of Wilder, and Brandon Smith of Hazard. Sens. Julie Raque Adams, R-Louisville, a lawyer who chairs the Senate Health and Welfare Committee, and Sen. Reginald Thomas, D-Lexington, who is running for Congress in the Sixth District, did not vote.

Voters could get amendment to let legislature limit lawsuit awards; another bill moving would limit attorney fees in malpractice suits

Getty Images/iStockphoto via Lexington Herald-Leader

Kentucky Health News

FRANKFORT, Ky. -- The Kentucky General Assembly would be able to pass a law limiting the amount of non-economic damages that could be awarded in personal-injury and wrongful-death lawsuits, under a bill moving to a floor vote in the state Senate.

The House may block the legislation, but a companion bill approved by another Senate committee Feb. 7 would limit the amount of attorney fees in medical-malpractice lawsuits and pose other obstacles to such suits.

Senate Bill 2 is a proposed constitutional amendment, requiring a three-fifths vote in each chamber and approval by a majority of voters in a statewide referendum at the November election. It would negate Section 54 of the 1891 state constitution, which prohibits such limits.

Senate Bill 20 would be a regular law, with several new rules for malpractice cases. In addition to the limit on attorney fees, SB 20 would require a sworn statement from a doctor saying that the lawsuit has merit. Last year, over some Republican opposition in the House, the GOP-controlled legislature required malpractice suits to be reviewed by three medical providers before proceeding. Franklin Circuit Judge Phillip Shepherd has ruled the law unconstitutional. If the law is upheld on appeal, the sworn statement would still be required.

SB 20 would limits contingency fees for plaintiffs' lawyers in malpractice cases, to 35 percent of the first $100,000 awarded, 25 percent of the next $100,000 and 10 percent of the rest. A typical fee in such cases is 33.3 percent. The bill would also keep out of malpractice cases reviews of doctors done by other doctors and any apologies or expressions of regret by heath-care providers.

Sen. Alvarado

“A simple apology can defuse the anger a patient or their family feels when a mistake has occurred,” said Republican Sen. Ralph Alvarado of Winchester, a physician who is sponsoring both bills.

Alvarado told the Senate State and Local Government Committee that doctors and businesses in Kentucky face “unlimited risk every day” from jury verdicts. “With that risk comes the undeniable fact that you are one real or perceived accident or mistake away from watching everything that you have worked for your entire life get taken away by a single jury decision.”

Kentucky Chamber of Commerce President David Adkisson told the committee that Kentucky ranks 42nd in the nation for “uncertain legal liability” because most states have shielded businesses from lawsuits.

Democratic Sen. Morgan McGarvey of Louisville, a lawyer, "challenged Adkisson by saying that neither he nor Alvarado had shown the senators any data about liability insurance costs for Kentucky businesses or given any examples of excessive jury awards," John Cheves reports for the Lexington Herald-Leader. McGarvey "said large trial awards are usually the result of juries disgusted by evidence of extremely bad conduct, such as children hurt or killed because of someone’s deliberate indifference."

Sen. McGarvey

“You’ve testified in front of us today about the businesses that need this for their insurance,” McGarvey told Adkisson. “When those families are in those hospitals and funeral homes, will you go testify in front of them and tell them that the reason we need this is because businesses didn’t want to risk a lawsuit?”

Adkisson replied, “You’ve editorialized eloquently . . . but I would stand by everything that I’ve said, that this is a significant barrier to economic growth.”

Read more here: http://www.kentucky.com/news/politics-government/article198896814.html#storylink=cp

House committee approves bill to keep doctors' reviews of other doctors from being used in malpractice lawsuits

By Melissa Patrick
Kentucky Health News

FRANKFORT, Ky. -- A bill to keep doctors' reviews of other doctors from being used in medical-malpractice lawsuits has passed a House committee and moves to the full House, where a similar bill stalled out last year.

Rep. Addia Wuchner, R-Florence, chair of the Health and Family Services Committee, told the panel that Kentucky is one of only two states that don't apply this privilege to medical peer reviews. She said protections in her bill will ultimately improve health care in the state.

"Medical peer review is an industry-wide practice that allows health-care professionals to openly, honestly and candidly discuss their performances with their colleagues and their teammates and learn from their experiences so that we can improve healthcare and outcomes for all patients," she said.

Dr. James Borders, chief medical officer for Baptist Health Lexington, assured the committee that hospital peer reviews are not an attempt to conceal anything.

"When it comes to the routine, day-to -day care of patients, we need to have the openness and flexibility to ask colleagues as to how they would do something better," he said. "I think of what a chilling effect it would have to think that every comment made in those kinds of conversations would be in some way open to legal challenge."

Wes Butler, a health-care lawyer, explained that House Bill 4 was designed to address a state Supreme Court decision in the 1990s that peer-review privilege in Kentucky should not extend to malpractice suits.

Senator Ralph Alvarado, R-Winchester, proposed a similar bill that made it to the House floor last year but didn't get a vote, largely because of a floor amendment by Rep. Chad McCoy, R-Bardstown, to allow statements of fact in peer reviews to be used in court.

McCoy, a member of the health committee, voted for Wuchner's bill, told Kentucky Health News that, "Cheese pizza is better than no pizza." He added that the language in the committee substitute that assures providers who are claiming the privilege are only doing so for safety and quality purposes, in the same way that the federal law requires, allowed him to vote for the bill.

"I am still fearful here," he said, noting that a doctor's testimony and peer review might conflict. "It didn't go where I wanted it to go, but it is an improvement and it's an important bill and like I said, 'cheese pizza'. . . . It's worth it to give up on the privilege if we can get hospitals to participate and try to make themselves better for every body out there."

Rhonda Hatfield-Jeffers, a plaintff's lawyer from Somerset, was the only person who spoke against the bill. She said that while she appreciated the changes, "We want to make sure no factual statements are hidden."

Attorneys file 111 medical-negligence cases in week before new law requires such suits to be reviewed by health professionals

In a proverbial rush to the courthouse, Kentucky lawyers filed 111 lawsuits alleging medical negligence in the week before a new state law took effect, requiring such suits to be reviewed by a panel of health professionals before they can proceed.

Andrew Wolfson of The Courier-Journal in Louisville reports that 68 of the suits allege "that doctors, hospitals, nursing home and other medical professionals caused the wrongful death of patients." Fifty of the 111 cases are in Jefferson County. "Forty-three of the suits were filed by the Lexington office of Wilkes McHugh, a national personal injury firm. Ricard Circeo, who runs the Lexington office, did not respond to requests for comment."

"Under the new law . . . the individual alleging harm must file a complaint with the state Cabinet for Health and Family Services, which triggers the process of setting up an outside panel to review the claim," The C-J's Deborah Yetter explains. "The panel consists of three licensed health professionals with a lawyer serving as chairman. Members must render an opinion on whether a breach of care occurred and whether such a breach was a 'substantial factor' in causing harm to the patient."

The panel has no authority but its opinion can be offered as evidence in the case. The process "can take more than a year," Yetter writes, but if the panel "takes more than nine months to issue a finding, the individual may go ahead and file a lawsuit. The parties also may skip the medical review panel process and go directly to court if both sides agree to do so."

The law was pushed by Republican state Sen. Ralph Alvarado of Winchester, a physician who has patients in nursing homes. He said it will discourage frivolous lawsuits, but plaintiffs' lawyers told Yetter that it will delay or deny access to the courts.

The law is "similar to ones in more than a dozen states," Yetter reports, and "had been sought for years in Kentucky by physician groups, nursing homes and others in the health business." It failed until the state House turned Republican in the November 2015 election.

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."

Kentucky likely to get measures to restrict malpractice lawsuits

The coming Republican control of state government makes it likely that doctors and other health-care providers will get from the General Assembly what they have wanted for more than 30 years: legislation to limit non-economic damages in malpractice lawsuits. But the voters will have the final say, because the measure will require changing the state constitution.

Meanwhile, the legislature and Gov. Matt Bevin can, on their own, enact a law requiring such lawsuits to be evaluated by a screening panel. "The plaintiff and defendant would each nominate one doctor, and those doctors would select a third. The panel would hear evidence, then issue an opinion on whether negligence occurred and if it did, whether it caused the patient’s injuries. Regardless of the finding, the plaintiff could still file suit and proceed to trial, but the panel’s finding would be admissible," Andrew Wolfson writes for The Courier-Journal. "Peer-reviewed university studies, including one in the Journal of Legal Medicine, have found that screening panels have not reduced the number of claims, litigation costs or malpractice insurance premiums, while they have caused protracted delays," Wolfson reports.

Any broader measure to limit damages would require a constitutional amendment because the 1891 Constitution says legislators “shall have no power to limit the amount to be recovered for injuries resulting in death, or for injuries to person or property.”

"Supporters of tort reform, like Louisville emergency room Dr. Robert Couch, say “sky-is-the-limit” liability forces physicians to order unnecessary tests and procedures and that eliminating such defensive medicine would reduce health care costs," Wolfson reports. "He also said the fact Kentucky is surrounded by states that have all enacted damage caps and other restrictions makes it harder to recruit doctors to the commonwealth."

On the other hand, "Opponents say reducing liability could increase costly medical errors, lowering the quality of care and increasing costs," Wolfson writes. "Experts say that medical malpractice costs account for such a minuscule amount of the nation’s total health-care bill – only 2 percent by some estimates – that reforms have virtually no impact on the bottom line for patients."

Generally, Wolfson notes, studies show caps and other malpractice changes reduce insurance premiums for doctors by 23 to 31 percent, researchers at the University of Alabama at Birmingham’s Center for Health Policy have written, “Legislators should consider whether they benefit consumers enough to justify limiting recoveries for those most seriously injured by malpractice.”

Wolfson starts his article with the story of an Indiana insurance lobbyist who helped win a law there limiting damages to $500,000 and eliminating any damages for pain and suffering: "Fourteen years later, as the victim of malpractice during and after routine knee surgery, he was left wheelchair-bound and tethered to a respirator and a morphine drip." In 2006 he wrote an article for The New York Times titled "Crushed by My Own Reform," saying damage caps "remove the only effective deterrent to negligent medical care."

Any malpractice-tort crisis in Kentucky "seems to have abated, as medical malpractice claims have abated across the U.S., including in Kentucky, according to the National Practitioners Data Bank, to which all claims must be reported," Wolfson writes. "The amount paid on medical malpractice claims in Kentucky, including cases that were settled, declined $20 million in inflation-adjusted dollars from 2005 to 2015, according to the Data Bank, while the number of claims paid in 2015 declined to 134 from 150 five years earlier. Only 1 percent of 1,667 claims from 2005 to 2015 were for $2 million or more, and only 5 percent were for $1 million to $2 million. Medical and insurance groups note the figures only include claims that were paid, not ones in which doctors prevail, which still cost money to defend."

Bill for review of medical lawsuits dies from special elections

A bill that would create panels of experts to review lawsuits against health-care providers is going nowhere, again.

State Senate President Robert Stivers said Friday that he and other leaders of the Senate's Republican majority sent Senate Bill 6 back to committee because last week's special elections continued Democratic control of the House. They did likewise with a bill for a "right to work" law that would ban union membership or fees as a condition of employment.

“The reality is the House does not see as the majority party in this Senate does, that right-to-work would even be another tool that could increase and expand on job recruitment and retention,” Stivers said. “The other thing is we’ve had Senate Bill 6 sitting on the board for quite some time. But, because of the elections two weeks ago, the consequences are, they would pass this chamber but die in the House.”

As session nears end, bills on heroin, dating-violence orders, managed-care appeals and lawsuit review panels are hanging fire

By Melissa Patrick
Kentucky Health News

FRANKFORT, Ky. – The General Assembly has sent Gov. Steve Beshear four health-related bills, and several more could reach his desk in the legislative session that ends Wednesday. Legislators will return briefly after 10 days to reconsider any bills Beshear vetoes; they could also pass more bills, but would not be able to override any vetoes.

Here are some of the health-related bills that were pending on Monday; bills with two readings are ready for floor action.

Heroin: tougher penalties and needle exchanges?

Both the Senate and the House have heroin bills and both remain in committee in the other chamber, but hope remains high in both chambers that a compromise can be reached so that a heroin bill will pass this session. Senate Bill 5 is sponsored by Sen. Christian McDaniel, R-Latonia; House Bill 213 is sponsored by Rep. John Tilley. The main differences are how traffickers would be punished and whether to start needle-exchange programs for addicts. The Senate's penalties are tougher and it has opposed needle exchanges, which advocates say prevent disease and death from dirty needles and can lead addicts to treatment.

Now the Senate is moving toward accepting needle exchanges, James Pilcher reports for The Cincinnati Enquirer. Rep. Dennis Keene, D-Wilder, and Sen. Wil Schroder, R-Wilder, said exchanges "are much more likely to be included than when the session started," Pilcher writes. Schroeder told him, "I think there is a real possibility that we could include needle exchanges and then get our tougher penalties." Pilcher reports, "The possible legislative position shift comes as health officials throughout the Tristate have expressed deep concerns about the spread of diseases that can be contracted using dirty needles."

Protective orders for dating violence

House Bill 8, sponsored by Rep. John Tilley, D-Hopkinsville, has received its second reading and is awaiting passage in the Senate. This bill would allow dating partners to petition for interpersonal protective orders if they have been the victim of domestic violence, sexual abuse or stalking. Such orders are now available only to those who are married, live together or have lived together, or an unmarried couple with a child in common.

Kentucky is the only state that offers no protection for such victims. Legislation to do that has stalled in the Senate in earlier sessions, but a Senate committee substitute addresses a key objection, by creating a new chapter in the statutes for the bill, separate from the existing domestic-violence chapter.

Advocates say domestic violence is a health issue not just because of the physical injuries it causes. They say victims are more likely to be depressed, have unplanned and premature pregnancies, go to fewer prenatal visits, and to miss more well-child visits with their children.

Prescription synchronization, managed-care appeals

Senate Bill 44, sponsored by Sen. Julie Raque Adams, R-Louisville, has had its second reading in the House. This bill would allow patients with multiple prescriptions, in consultation with their health-care provider and their pharmacist, to synchronize prescriptions so that they may be picked up at the same time.

House Majority Caucus Chair Johnny Bell, D-Glasgow, has filed a floor amendment on an unrelated issue, to create a state appeals process for health-care providers to appeal decisions of Medicaid managed-care companies. It is the same as or similar to Senate Bill 120, sponsored by Sen. Ralph Alvarado, which has given it a first reading without assigning it to a committee. The Cabinet for Health and Family Services opposes a state appeals process, saying it would have a conflict of interest (successful appeals would cost the state money) and providers have the courts available to them to resolve contractual issues. UPDATE: Bell withdrew his floor amendment to Senate Bill 44 March 9. 

Review panels for suits against health-care providers: Senate Bill 6, filed by Alvarado, remains in the House Judiciary Committee, but a discharge petition was filed March 4 to bring it to the floor, bypassing leaders of the House's Democratic majority. This bill 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. Opponents say that Kentucky already has laws to punish attorneys for filing frivolous cases and that this just adds another barrier for patients seeking justice.

Newborn screenings for fatal disease: Senate Bill 75, sponsored by Sen. Alice Forgy Kerr, R-Lexington, has had two readings. It would require all newborns to be tested for Krabbe disease, a neurological disorder that destroys the protective coating of nerve and brain cells and is fatal once symptoms occur. Treatment with stem cells from an umbilical cord blood transplant is sometimes successful it the infant is treated early enough. The cabinet opposes the bill, saying the screening will cost half a million dollars a year at a time when local health departments are suffering budget cuts.

Spina bifida: Senate Bill 159, sponsored by Sen. Julie Raque Adams, R-Louisville, is in the House and the three-day posting rule has been waived. This bill would require medical providers to supply written, up to date, accurate information to parents when their unborn child is diagnosed with spina bifida so parents can make informed decisions on treatment

Physician assistants: House Bill 258, sponsored by Rep. Denver Butler, D-Louisville, is awaiting Senate passage. This bill allows a physician to supervise up to four physician assistants at the same time, rather than two.

In-home care: House Bill 144, sponsored by Rep. Tom Burch, D-Louisville, is awaiting Senate passage. It would establish a 60-day, hospital-to-home transition program through an approval waiver from the Department for Medicaid Services. The daily cost would have to be less than the average daily nursing home payment allowed by Medicaid. The bill would also provide non-medical support services to the applicant as needed.

BILLS SENT TO THE GOVERNOR

Colorectal cancer screening: Senate Bill 61, sponsored by Sen. Ralph Alvarado, R-Winchester, received final passage in the House March 4. This bill requires that a fecal test to screen for colon cancer, and any follow-up colonoscopy, be considered preventive measures that health insurance is required to cover without imposing additional deductible or co-insurance cost. The bill would apply to health plans issued or renewed on or after Jan. 1, 2016, if it becomes law. A similar measure, House Bill 69, sponsored by Rep. Tom Burch, D-Louisville, is awaiting passage in the Senate with a committee substitute by Sen. Julian Carroll, D-Frankfort, calling for a Medicaid savings study.

Medical order scope of  treatment (MOST) form: Senate Bill 77, sponsored by Sen. Tom Buford, R-Nicholasville, received final passage in the House March 3. This bill creates a medical order scope of treatment (MOST) form that specifically directs the type of treatment a patient would like to have, and how much intervention he or she would like to have, during end-of-life care. It is considered a physician's order, travels with the patient between health care facilities, and must be reviewed annually. The bill clearly defines the order of controlling documents for end-of-life care: the living will first, the MOST form second and the health-care surrogate, which is chosen by the patient and listed on the form, third. The MOST form is already used in 32 states.

Emergency care for strokes: Senate Bill 10, sponsored by Sens. Stan Humphries, R-Cadiz, and David Givens, R-Greensburg, received final passage in the House March 4. The bill requires that a list of all acute stroke-ready hospitals, comprehensive stroke centers and primary stroke centers in Kentucky be posted to the cabinet's website and be made available to all emergency medical services providers, who are required to set their own internal protocols toward assessment, treatment and transport of stroke patients.

Funding for UK cancer research center: House Bill 298, sponsored by Rep. Rick Rand, D-Bedford, received final passage in the Senate March 4. This bill authorizes the state to appropriate $132.5 million, half of the cost, for construction of a new medical research center at the University of Kentucky. The university will raise money to cover the other half. The facility will target prevalent diseases in Kentucky, including cancer, diabetes and cardiovascular disease. The bill required a 60 percent vote in each chamber because it affects the state budget and the legislature is in a non-budget session; it passed the House 83-9 and the Senate 36-1 (Sen. John Schickel, R-Union).

Senate OKs bill for review panels in medical lawsuits after lively debate between doctors, lawyers, others

This story, which was published Thursday morning, has been updated with action in the full Senate.
By Melissa Patrick
Kentucky Health News

FRANKFORT, Ky. -- The Senate has approved a bill that advocates say will help weed out "frivolous" medical malpractice lawsuits and speed up litigation for legitimate suits.

Alvarado

"Right now, Kentucky has one of the nations most litigation-friendly environments, making our commonwealth a prime and profitable target for personal injury lawyers preying upon our health care providers," Sen. Ralph Alvarado, R-Winchester, a physician and sponsor of Senate Bill 6, told the Senate Health and Welfare Committee. Opponents disputed that claim.

The Senate passed the bill Thursday 24-12. It is not expected to pass the House.

The bill 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.

The Republican-controlled Senate passed a very similar bill last year but it got nowhere in the Democrat-controlled House, and its prospects are similar this time. However, Wednesday's committee meeting provided a detailed and lively explication of the issue, lasing almost two hours.

Vanessa Cantley, a Louisville personal injury attorney, told the committee that most medical malpractice cases are legitimate. She cited a Harvard University study published in the New England Journal of Medicine that concluded "portraits of a malpractice system that is stricken with frivolous litigation are overblown" and reported that 97 percent of claims for medical injury evaluated over a decade were deemed to be meritorious.

However, Michael Sutton of Louisville, a civil defense attorney, said defendants win 80 per cent of medical malpractice suits.

Cantley said there are 2,700 deaths in Kentucky each year due to purely preventable medical error, but, according to the state Department of Insurance, fewer than 500 lawsuits a year are filed by abuse and neglect victims. She spoke for the Kentucky Justice Association, formerly the Kentucky Academy of Trial Attorneys.

Alvarado and other opponents argued that Kentucky has become a haven for such lawsuits and bills like his have helped deter them. "Medical review panels are a proven solution for limiting baseless claims brought by a personal injury lawyer to ensure a faster, more efficient path for patients with legitimate claims, " he said.

Alvarado said the state is 4,000 doctors short of its need and the legal climate in Kentucky makes it hard to recruit and retain doctors. Sen. Julie Raque Adams, R-Louisville, the committee chair, said the expansion of Medicaid in Kentucky makes it all the more important to make the state attractive to doctors. "Anytime there's a paradigm shift, there are other policies that  need to go along with that paradigm shift," she said.

Dave Adkisson, president and CEO of the Kentucky Chamber of Commerce, said review panels "will stabilize our medical malpractice system and make our state more attractive" and "protect the legitimate cases while weeding out the meritless claims," which increase costs to consumers and employers through higher premiums and defensive medicine in the form of extra medical tests.

Kentucky's constitution bans laws that would cap damages

in lawsuits. (Care First Kentucky graphic)

Every state surrounding Kentucky offers some level of protection against medical malpractice, while Kentucky offers no legal protections for healthcare providers, according to Care First Kentucky, a business coalition supporting the bill.

Sen. Reggie Thomas, D-Lexington, a lawyer, argued that Kentucky already has laws to punish attorneys for filing frivolous cases. Alvarado said the rule isn't used much because judges "allow a lot of latitude," and Sutton said it is reserved for "really egregious conduct."

Cantley argued, subtly, that courts are the refuge for patients who suffer from abuse, neglect and malpractice. She said the federal Centers for Medicare and Medicaid Services has ranked Kentucky No. 1 in nursing-home deficiencies, and argued that state boards that discipline doctors do a poor job.

The full Senate's debate on the bill was cut short because the committee adopted a substitute version, preventing Democratic Leader Ray Jones of Pikeville, a plaintiffs' lawyer, from offering any of his amendments, which had been drafted to the original bill. Under traditional procedures, a bill gets its required readings on days between the committee meeting and the floor vote, but in recent years Republicans have given important bills readings before committee action, allowing a vote on them the day after they pass a committee.

St. Joseph London, doctors and others win the first of a dozen trials over allegations of unnecessary procedures at hospital

A jury has decided for the St. Joseph London hospital, several of its doctors and other defendants in a lawsuit that accused them of conspiring "to perform unnecessary, risky and often painful heart procedures to unjustly enrich themselves," Andrew Wolfson writes for The Courier-Journal.

After a three-week trial of the suit filed by Ed Marshall, the Laurel Circuit Court jury took only 40 minutes Nov. 21 to decide there had been no wrongdoing, Nita Johnson reports for The Sentinel-Echo. However, The C-J reports that the case was only the first of 12 "that will be tried to show the value of the cases to both sides, according to Louisville lawyer Hans Poppe, one of the plaintiff's lawyers. . . . He said Marshall had suffered five heart attacks before he was allegedly given an unnecessary stent and that the jury may have been reluctant to fault the defendants given his complex prior medical history."

"Marshall’s lawsuit spurred five other cardiology patients to step up with claims that the doctors were doing unnecessary procedures on patients with heart problems," Johnson reports. "The list of lawsuits continued to expand, with numerous patients and the family members of deceased patients joining in with the claims that the cardiologists were performing procedures that were not medically necessary. Before all was said and done, over 200 people had filed lawsuits against the London hospital, its owning agency – Catholic Health Initiatives; the cardiovascular company that referred patients to the local hospital, the medical billing organization, and individual cardiologists involved in certain procedures. One of those cardiologists – Sandesh Patil – is serving federal prison time for falsely billing Medicare for procedures" that the Kentucky Board of Medical Licensure said didn't meet minimum guidelines.

In January, the hospital agreed to pay the federal government $16.5 million to resolve "civil allegations that it submitted fraudulent claims to the Medicare and Kentucky's Medicaid programs for unnecessary heart procedures," Wolfson notes. The deal also put the hospital under a corporate integrity agreement, and its president and chief nursing officer were replaced in September by officials who have experience in operating under such agreements, R. Scott Belzer reported for The Sentinel-Echo.

Grimes and McConnell lay out differences on health reform

By Al Cross and Megan Ingros
Kentucky Health News

U.S. Sen. Mitch McConnell kept attacking federal health-care reform and challenger Alison Lundergan Grimes gave her strongest defense of it yet as the candidates held the closest thing to a debate Wednesday, Aug. 20, at Kentucky Farm Bureau headquarters in Louisville.

Grimes was the most detailed she has been in a public discussion about health-care reform. Grimes indicated that she supports Kynect, the state health-insurance exchange, created by Gov. Steve Beshear and funded by Obamacare, where people sign up for Medicaid or buy insurance.

“For the first time ever, because of our governor, 500,000 Kentuckians are able to go to the doctor, their kids get checkups before school, and many of them are farm families in rural Kentucky,” she said. “The law isn’t perfect but we have to work to fix it. . . . We have to work to streamline the Affordable Care Act, to make sure there aren’t over-burdensome regulations on our businesses, especially our small businesses.”

Grimes endorsed President Obama’s delay in the law’s employer mandate and suggested that he should also live up to his promise that “If you like your doctor, you can keep it.”

She actually appeared to be referring to keeping old insurance policies, because her next words were, “We should be working to extend that grandfathering clause so we live up to that promise that Washington politicians made to Kentuckians. . . . It requires a senator, though, who doesn’t want to repeal root and branch the access to health care that Kentuckians just got for the first time.”

McConnell answered, “She won’t use the words, but she supports Obamacare, he single worst piece of legislation that’s been passed in the last half-century.”  He said Obamacare is going to cost jobs and it “ought to be pulled out root and branch and we ought to start over.”

McConnell said what should have been done is “truly national competition among health-insurance companies to keep prices down and quality up,” as well as “a national medical malpractice standard to bring some sanity to the litigation lottery that’s confronting every health-care provider in America; and thirdly, we need to allow small businesses to form groups for the purpose of more purchasing power on the open market.”

Citing a study by the Congressional Budget Office, McConnell said the law will only cover 10 million of the 40 million people who were uninsured, and will “cost 2.5 million jobs.” The study says the predicted reduction, through 2024, will come “almost entirely because workers will choose to provide less labor,” not because jobs will be eliminated.

McConnell said Kentucky will not be able to afford its expansion of the Medicaid program, which covers about three-fourths of the newly insured. “She applauds it,” he said. “It’s fine for the governor because the first three years the federal government will pick up 100 percent of the tab, but after that, the state’s going to be in serious financial problems.”

Beshear has cited studies showing that the Medicaid expansion will pay for itself by expanding the health-care industry and creating jobs, but Republicans say they are skeptical of that.

A video of the debate is available on the Farm Bureau website, www.kyfb.com, until Sept 20. The specific site is http://new.livestream.com/accounts/7542430/events/3309694.

McConnell presses Democratic foe Grimes to say how she feels about Obamacare, but won't bite on questions about Kynect

By Al Cross
Kentucky Health News

At his first press conference after winning the Republican nomination for a sixth term, U.S. Sen. Mitch McConnell pressed Democratic nominee Alison Lundergan Grimes to clarify her position on the federal health-care reform law but wouldn't say whether his plan to "start over" on the issue would include shutting down the state's successful health-insurance exchange.

"She's been dodging it for a year," McConnell said Friday. "She's been in this race for a year. It's time for her to answer the question, "How do you feel about it?" Grimes, Kentucky's secretary of state, twice refused Wednesday to say how she would have voted on the 2010 law if she had been a senator.

McConnell speaks at half-hour press conference.
(Associated Press photo by Timothy D. Easley)

The topic arose when McConnell was asked to reply to Democratic assertions that his pledge to "pull it out root and branch" would end the law's insurance coverage for 415,000 Kentuckians through the state exchange.

The senator didn't answer directly. "This is another good reason why the two of us ought to have a real debate," he said, recalling his post-primary proposal for three Lincoln-Douglas-style debates by the middle of September.

Asked if he would dismantle the state exchanges created under the law, McConnell said he would have created a national market -- "tear down the walls, the 50 separate silos in which health insurance is sold" -- passed medical-malpractice reform, and allowed small businesses to "band together in this international [sic] market."

Asked again, specifically, if he would shut down Kentucky's exchange, which is branded as Kynect, he said "I think that's unconnected to my comments about the overall question here."

While polls have shown the law to be unpopular in Kentucky, a small plurality of voters in a recent poll had a favorable opinion of Kynect. Last fall, the Kentucky Health Issues Poll found that people who weren't sure how the law would affect them and their families had an unfavorable opinion of it, while those who said they did know how it would affect them had a favorable opinion.

In his overall comments about the law, McConnell said a Congressional Budget Office study has predicted that full implementation of the law would still leave 30 million Americans uninsured, covering only 10 million. "What is the cost-benefit ratio of this kind of destruction, this kind of impact, on 16 percent of the economy?" he asked. "The people of this state are entitled to know the answer to the question, 'How do you feel about it?' and I think my opponent has tried to dodge that question."

UPDATE: Joe Sonka of LEO Weekly writes, "According to the CBO, by 2024 the number of uninsured will, in fact, be 31 million people, but without the ACA there would have been 56 million people uninsured. This number takes into account the undocumented immigrants who can’t get insurance because of the lack of immigration reform, and the people who can’t get Medicaid in states that opted out of the Medicaid expansion. That means that when the ACA 'kicks in fully' . . . 26 million will have gained access to health-care coverage because of it."

Asked if repealing the law would be his top priority as majority leader if Republicans take control of the Senate, he said he wasn't ready to say because he's not in the majority yet, "but I think it's reasonable to assume that would be a high priority for us." He noted that Obama will be president until January 2017, an implicit acknowledgement that Obama would veto any repeal and two-thirds votes of the House and Senate would be required to override him.

Jason Millman of The Washington Post writes that the issue could be pivotal in the race. "Kentucky is about as big of an Obamacare paradox that you could find: the state's exchange is working well, but Obamacare remains unpopular in the state," he writes. "It’s also home to one of the more successful Obamacare health insurance exchanges." He concludes, "Grimes may want to have a better answer the next time she's asked whether she would have voted for the health-care law." She has refused to say.

Here's a fresh strategy for reforming malpractice lawsuit rules: measure doctors by national standards, not local custom

A bill that would create three-person panels of medical experts to give non-binding opinions on malpractice lawsuits before trial doesn't appear to be getting anywhere in the Kentucky General Assembly, at least not at the moment. The medical malpractice laws do need to change—by altering the "basis for finding a doctor guilty of malpractice in the first place," Peter R. Orszag, budget director in the Clinton administration, writes for Bloomberg View.

The discrepancy exists in the fact that doctors' performances are measured against "customary practice," which is defined as what doctors usually do, which isn't always necessarily based on the best medical science, Orszag writes. If doctors followed protocols published by a professional medical association, they could be protected by law. The Center for American Progress, a moderate Democratic think tank, presented this idea and gave suggestions for how it could be implemented.

A study by Professor Michael Rakes of Cornell Law School and Anupam Jena, a professor of health-care policy at Harvard Medical School, found that shifting away from local "customary practice" standards toward national practices can improve health care. "The literature to date has largely failed to appreciate the substantive nature of liability rules," Frakes and Jena write, "and may thus be drawing limited inferences based solely on our experiences to date with damages caps and related reforms." Limiting lawsuit damages is unconstitutional in Kentucky.

If doctors knew they could be protected from lawsuits if they followed specific procedures, "the safe harbor might have an even bigger effect on their behavior than the Frakes-Jena study suggests," Orszag writes.

Though it could take a long time for this change to happen nationally—because most Democrats in Congress are against malpractice reform and Republicans are concentrating on damages caps—states can reform their individual malpractice systems, Orszag notes.

Bill to create panels to review medical-malpractice lawsuits passes Senate committee

UPDATE, Feb. 20: The Senate passed the bill 23-13, but House Speaker Greg Stumbo said he does not expect it to make any progress in the House.

By Melissa Patrick
Kentucky Health News

The state Senate Health and Welfare Committee approved an expanded bill Wednesday to put a hurdle in front of medical malpractice lawsuits in Kentucky.

Senate Bill 119, sponsored by committee chair Julie Denton, R-Louisville, would establish medical review panels to offer initial opinions on the merit of medical-malpractice lawsuits. A panel would consist of three medical experts. Each side in the lawsuit would choose one, and the chosen two would choose the third.

Chamber President Dave Adkisson
testifies for the bill. (KET image)

The bill is the fallback position for nursing homes (and earlier, doctors) who have been unable to get the General Assembly to offer the voters a constitutional amendment that would allow the legislature to limit damages in lawsuits. They want to decrease the number of cases that they consider frivolous but sometimes settle to limit legal fees. Hospitals and doctors recently joined the lobbying effort; the Kentucky Chamber of Commerce is also on board.

"This is common sense legislation to make sure there is merit, " Denton said. The bill passed on a 6-4 vote, with Sen. Julian Carroll, D-Frankfort, not voting after a two-hour debate.

Supporters of the bill told the committee that Kentucky's liability laws make it difficult to recruit physicians and health-care providers to the state, increase malpractice- and health-insurance premiums, and take money away from actual health care because providers spend so much on defensive practices. They said the bill would decrease the time it takes to resolve cases and decrease health-care costs.

Lawyer Larry Forgy, who represents 13 nursing homes, said lawyers from states like Florida and Texas that have passed limits on liability lawsuits were moving to Kentucky and suing the nursing homes. He said, "We have had a gator invasion in Kentucky."

Opponents of the bill said that nursing homes improved the quality of care, there would be no need for these panels. Another opponent said it would not allow adequate time for the panels to make sure all information submitted was factual.

Wanda Delaplane of Frankfort, who won a $20 million malpractice judgment, said it took four years to gather the facts for her father's case because the nursing home gave her and the state false information. She said the panel would only get information that the medical provider gave them and that this was "information that has a high degree of probability to be falsified."

Patrick Clinch of Scott County, who said his father did not receive adequate health care while in a nursing home and subsequently died, reminded the committee that the debate is not just about lawsuits, but about people, often the elderly. He said medical experts on the panels would be biased toward their colleagues, and suggested the answer to this problem is improving the quality of care.

Jim Kimbrough, AARP Kentucky state president, agreed that quality of care was the problem.

"We believe the solution to implementing the issues of care in facilities lies within each facility to improve the quality of care," Kimbrough said. He said the bill would delay the aggrieved their rightful access to the court system, and "Justice delayed is justice denied."

Similar legislation passed the Senate in 2013, but didn't get out of a House committee. It remains to be seen whether the additional lobbying power of hospitals and doctors, who are leading campaign contributors to legislators, will make a difference.

St. Joseph Hospital in London will pay U.S. $16.5 million to settle malpractice suits involving unnecessary heart procedures

St. Joseph Hospital in London will pay $16.5 million to the federal government to settle charges that it got money from Medicare and the federal-state Medicaid program for unnecessary heart procedures, according to a document released Tuesday. The schemes and subsequent fines the hospital now faces may cause even more financial problems for KentuckyOne Health, Andrew Wolfson writes for The Courier-Journal.

Almost 400 former patients filed lawsuits, claiming cardiologists at the hospital performed "unnecessary, risky and often painful heart procedures to unjustly enrich themselves," Wolfson reports. According to the claims, two patients died and some will have to take blood-thinning medications for the rest of their lives, leaving them vulnerable to possibly fatal complications.

Several doctors at the hospital conducted unnecessary, invasive procedures such as heart stents and catheterizations on Medicare and Medicaid patients between 2008 and 2011, the government claimed; hospitals usually get $10,000 to $15,000 for each procedure, Wolfson notes.

"We all rely on health care providers to make treatment decisions based on clinical, not financial considerations," U.S. Attorney Kerry Harvey said in a news release. "The conduct alleged in this case violates that fundamental trust and squanders scarce public resources set aside for legitimate health care needs."

According to Harvey's office, the investigation continues because various doctors were involved, and their crimes are not absolved through the fine, Bill Estep reports for the Lexington Herald-Leader. For example, Dr. Sandesh R. Patil "pleaded guilty last year to lying about the severity of a patient's condition to make sure the government would pay for heart procedures," Estep reports. "Patil was sentenced to 30 months in prison."

Although St. Joseph London agreed to pay the $16.5 million, it did not admit violating the law, a common provison in such cases.. The hospital said it agreed to pay the penalty to avoid further expenses, "'uncertainty of prolonged litigation, and to allow the hospital to move forward.' It said the allegations arose in 'past relationships with some cardiologists who no longer practice at the hospital'," Wolfson reports.

St. Joseph President Greg Gerard said, "We are committed to providing the communities we serve with safe, high quality health care performed with the highest of integrity."

Three Central Baptist Hospital cardiologists in Lexington—Drs. Michael R. Jones, Paul W. Hollingsworth and Michael Rukavina—played a key role in discovering St. Joseph-London's malpractice, Estep reports. When they noticed that some patients they treated had been subjected to unnecessary procedures at London, they sued in 2011. "One patient who came to the Lexington practice had undergone 17 heart catheterizations—performed mostly by Patil—in London in four years, none of them necessary, according to the report," Estep writes. The three cardiologists will get $2,458,810 of the $16.5 million settlement, according to Harvey's office.

Although St. Joseph-London is finished with the civil portion of the case, the federal government will continue trying to get money from the doctors and clinics identified in the lawsuit, Harvey said. "This result would not be possible without the commitment of private citizens exposing this type of egregious fraud," said Perry K. Turner, special agent in charge of the FBI in Kentucky.

Hospitals, doctors, Chamber join nursing homes' lobbying for panels to make initial reviews of medical malpractice lawsuits

Under fresh pressure from a coalition of health care and business groups, state lawmakers are discussing the long-lobbied idea to submit medical-malpractice lawsuits to review panels that could give initial opinions about their merit.

The Kentucky Hospital Association, the Kentucky Medical Association and the Kentucky Chamber of Commerce want the General Assembly to establish three-person panels to reduce the cost of defending and settling them, writes Bruce Schreiner of The Associated Press.

"Now is the time for Kentucky to say 'enough is enough' to meritless lawsuits, which are having a huge impact on health-care costs," said Chamber President and CEO David Adkisson. Advocates believe a negative opinion from a review panel would discourage some cases from moving forward or going to trial, and reduce the settlements that defendants might pay.

In 2013, the Senate passed a review-panel bill for nursing homes, but the idea failed in the House. Sen. Julie Denton, R-Louisville, chair of the Senate Health and Welfare Committee, said she hasn't decided whether the new bill she is preparing would be limited to nursing home cases, Schreiner reports.

Review panels are opposed by plaintiffs' lawyers and nursing-home reform groups such as AARP, formerly the American Association of Retired Persons. ""We haven't seen any evidence that similar legislation has improved the quality of care for nursing home residents" in other states, said Jim Kimbrough, state president of AARP. "What our state needs is to focus on improving the quality of care our seniors are receiving."

House Speaker Greg Stumbo, a plaintiffs' lawyer and Democrat from Prestonsburg, said Friday he is willing to contemplate "some reasonable sort" of review panels for malpractice suits against nursing homes. He said panel members should be allowed to testify in court, but the panel's findings should not be admissible.

Dr. Fred A. Williams Jr., president of the KMA, said review panels would help make "the state more attractive to employers while helping us retain and attract the kind of quality physicians and other health-care providers Kentuckians depend upon."

Stumbo expressed doubt that meritless lawsuits are as numerous as the bill's advocates say, saying weak cases are discouraged by the high cost of bringing malpractice cases to trial. "He also expressed doubts that the proposed changes would lower malpractice premiums paid by those in the health-care industry," Schreiner writes.