Monday, July 3, 2017
Chad McCoy, a Republican state House member and husband of a physician, explains in this article why med mal panels are a bad idea. Like me, he prefers a certificate of merit program. Here's a sample:
“If the panel tells me there’s no negligence, I’m still going to court,” McCoy said, if he has done his homework and thinks there’s a legitimate claim.
“All it does is delay it,” he said. “When you look at Indiana, which has almost the same law, the delays are horrible. It delays cases, on average, about three years.”
Kentucky’s constitution says there can be no “unreasonable delay” in a court case.
The statute also makes cases more expensive because the insurance companies have to hire attorneys to make their arguments before the review panels whether they go to court or not, he said.
The people on the panel don’t make any money. The lawyer who chairs it gets paid in a day about what he could bill for an hour if he were working other cases, and the doctors don’t get paid at all. They’re conscripted.
“The intention is great. Let’s get rid of frivolous lawsuits. Let’s make justice efficient. I’m for all of those things. It’s just unfortunate that this is not the best way to go about it,” McCoy said.
In fact, it may actually result in more, not fewer, frivolous lawsuits, he said.
Currently, there aren’t that many of them in Kentucky despite the all the TV ads for ambulance chasers. That’s because it costs so much to take those cases. The plaintiff’s attorney has to decide if he’ll earn enough to pay the tens of thousands of dollars it costs to get a doctor to testify as an expert witness. In most cases, it isn’t worth it.
“I turn away, on a daily basis, probably four or five medical malpractice cases, not because they didn’t show a mistake, but because the damages weren’t high enough to even get past our fixed costs,” he said.
Now that the new law is in place, however, he and his partner have a couple of cases they intend to file with the cabinet because it won’t cost them anything.
McCoy got out a 2015 edition of the “Kentucky Trial Court Review,” a compendium of court cases, to show that the number of medical malpractice cases has declined steadily since 1998, and most cases don’t result in awards.
“Look at how the number of cases has plummeted over the years,” he said. “It’s almost like this is a solution in search of a problem.”