Well, we finally have death panels.
Among the state laws taking effect this week is Senate Bill 4, changing the structure of medical malpractice lawsuits in Kentucky. Now, claims of malpractice will be reviewed by a panel before they are allowed into a courtroom.
While Republicans in Congress and the White House are threatening the healthcare of over 20 million Americans and hundreds of thousands of the poorest Kentuckians, Republicans in the state are undermining the legal recourse protections you have when medical care fails.
Republicans are assaulting your health and wellbeing from both sides.
That panel consists of three doctors with expertise in the specialty under question in the lawsuit. The chairman of the panel, an agreed upon lawyer, would provide a list of doctors from which the plaintiff and the defendant each would choose one. Those two doctors pick a third specialist to round out the panel.
The panel then has nine months to decide whether a claim should go to court, but the process could be delayed.
The law’s constitutionality remains dubious, as some state courts have thrown similar systems out, while others have let them remain. One thing is certain: This law is not designed to protect victims of malpractice and their families. It makes it more difficult, more expensive and take longer to seek justice and compensation when medicine goes bad.
Supporters — primarily Republicans, insurance companies and medical care companies — have long sought such a law in Kentucky, but state Democratic lawmakers have turned it back for years, until now.
Medical-care companies, such as nursing homes, get an additional layer of protection from lawsuits… reducing their insurance costs. That means bad actors — the careless nursing home technician, or the abusive hospital worker — are enabled in their negligence. Insurance companies can avoid more settlement and judgment payouts.
Meanwhile, the Republicans claim this will cut down on frivolous claims — people trying to take advantage of the system, and hit what they derisively call the injury lottery.
The Republicans’ political deception cuts much deeper. Sure, this aligns with their pro-big business (at the expense of the poorest and neediest) ideology. But this reflects their assault on unions and organized labor across the country. See, Republicans have long sought tort reform to undercut the support of trial lawyers for Democrats. They see squeezing the source of large malpractice settlements and judgments as a way to dry up the source of Democratic donations.
But Republicans argue that this law will help lower the cost of insurance for you. It’s like trickle-down economics — except trickle-down premiums. Alas, both theories are nothing more than big-business, conservative fantasies.
Beyond politics are the people who will be hurt by this law by denying them access to justice.
For instance, in no other area of the judicial system is there a viability test — an external barrier that determines whether someone has a right to seek justice. The closest thing I can think of is when a case goes before a grand jury. But even in those cases, the decision doesn’t determine the cases’ viability… cases don’t go away. It’s just a determination of whether or not a case can be charged at a higher level.
Not to mention the obvious — a grand jury is part of the judicial system. This review panel is completely outside the court system. It is akin to a student being denied access to a public school because their ability to read doesn’t meet the admission panels’ standards.
Which brings the constitutionality into question. The Seventh Amendment of the U.S. Constitution guarantees the rights of every citizen to a trial by a jury of their peers. This review panel creates a standard that imposes a barrier to that right.
Finally, yes, people do try to take advantage of the legal system. And there are nasty, ambulance-chasing attorneys. But the new review panel does not stop bad medicine. It will discourage people from seeking justice to begin with. People who believe they or their loved ones have been victims of malpractice will undoubtedly see higher legal costs up front. And they will have to wait longer for resolution.
This law only serves the profit interests of big insurance and medical care companies, and the political ascendency of the Republican Party. •