The following piece is an op-ed co-authored by David Adkisson, president and CEO of the Kentucky Chamber of Commerce; Mike Rust, president and CEO of the Kentucky Hospital Association; and Patrick Padgett, executive vice president of the Kentucky Medical Association.
The Aug. 5 story by Andrew Wolfson on Kentucky’s new Medical Review Panel (MRP) process would have readers believe our legal liability system was working flawlessly before the new law was enacted. Perhaps that was true for the personal injury lawyers and TV stations that air their incessant commercials. But nothing could be further from the truth for the rest of us.
To the detriment of businesses, caregivers — and ultimately consumers — Kentucky is one of the most litigation-friendly environments in the country. In fact, the U.S. Chamber of Commerce Institute for Legal Reform ranks Kentucky 43 out of 50 states for our legal liability climate. Worse, Kentucky is trending in the wrong direction. In 2015, we ranked 37.
For example, it’s so bad that Kentucky considers the normal, human act of a doctor apologizing to a patient who did not receive an outcome they hoped for as an admission of guilt!
Establishing the MRP process in Kentucky was the first step toward bringing our legal climate in line with neighboring states like Indiana, Tennessee, and West Virginia — all of which have pursued reforms to preserve a consistent, level playing field in the justice system. In turn, these states have a leg up in attracting business investment, and the skilled providers needed to care for aging populations.
Here’s another fact about our legal climate: Louisville is “the seventh biggest market for lawyer TV ads, even though it is only the nation’s 49th largest TV market.” But don’t take our word for it. Mr. Wolfson wrote it. Advertisers go where the money is — and in Kentucky, it pays to push personal injury cases.
In other states — like Indiana — it’s not as lucrative because of commonsense policies like MRPs combined with reasonable caps on punitive damages.
Kentucky’s constitution affords everyone the right to present their claim before a jury of their peers. Unfortunately, our tort system is so broken that the guarantee to a jury trial has been warped into a presupposed right to jackpot.
Kentucky’s legislators recognized the outsized influence of Kentucky’s bad litigation climate and established the MRP process to level the playing field. If finally given the chance to work, free of confusing and unnecessary legal challenges, MRPs will expose frivolous suits and help meritorious claims by providing an impartial review and acknowledgement of the supposed harm.
Establishing MRPs in Kentucky was a significant change — but it was not intended to be a panacea for our broken legal liability system. In his article, Mr. Wolfson painted the number of cases in the MRP process as evidence of some inherent — yet unspecified —deficiency in the policy.
The opposite is true. The staggering number of cases show exactly why we need tort reform. In a state where outcomes are not wildly out of step with industry norms (if at all), juries are led to believe that so many more providers and businesses are incompetent and/or negligent.
Doctors, attorneys, and judges can all be forgiven for not being aware of the MRP process. It barely got started before it was challenged.
Unsurprisingly, the court quickly declared MRPs unconstitutional, a decision that was put on hold by the Court of Appeals. Now it’s up to the Kentucky Supreme Court to uphold this carefully crafted process that the legislature believed is needed. This process and the accompanying confusion has left many unsure of what will happen.
Removing the incentive to send frivolous cases to juries will improve the legal climate and afford businesses, health care providers and health care professionals some much-needed certainty and eliminate an advantage other states have when courting investment and caregivers.
Kentucky needs the MRP process along with additional legal reforms to return sanity to the system. When businesses and health care providers spend less paying out settlements on meritless claims — they have more to invest in growing the Commonwealth and providing care.
Fewer frivolous lawsuits means a better Kentucky for everyone.