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Perspective | Why Kentucky needs medical review panels

Fixing a broken legal system

By Dave Adkisson

Kentucky Chamber President and CEO Dave Adkisson

Business owners and caregivers across Kentucky face a common challenge in today’s overly litigious culture. A mistake – whether real or perceived – leads to a lawsuit that could cost you everything you’ve worked hard to build.

The health care and business communities have long advocated for creation of medical review panels (MRPs) to help address the many frivolous lawsuits clogging our court system. The legislature made great strides in 2017, passing this important measure, which Gov. Matt Bevin quickly signed into law.

However, unsurprisingly, trial attorney interests quickly filed suit to overturn the law in an effort to protect one of their most fertile hunting grounds. Just a year after the law went into effect, the decision of whether the measure is constitutional is now before Kentucky’s Supreme Court.

Opponents of the MRP process would have you believe our legal liability system was working wonderfully 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 such as 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 U.S. market for lawyer TV ads, even though it is only the nation’s 49th largest TV market. Advertisers go where the money is – and in Kentucky it pays to push personal injury cases.

In other states – like Indiana – the lawsuit business is not as lucrative because of common-sense polices 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 a 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.

A Kentucky circuit court declared MRPs unconstitutional, but the Court of Appeals put that decision on hold. Now it’s up to the Kentucky Supreme Court to uphold this carefully crafted process that our elected legislature believed is needed. This process and the accompanying confusion have left many unsure of what will happen.

Removing the incentive to send frivolous cases to juries will improve the legal climate and afford commonwealth 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 mean a better Kentucky for everyone.

Dave Adkisson is president and CEO of the Kentucky Chamber of Commerce