Nursing homes and long-term care facilities are often on the receiving end of allegations and accusations of abuse and neglect. These are often brought not just through complaints to state agencies and state investigations, but through civil lawsuits by victims and/or their loved ones. So naturally, nursing homes and other medical providers will do whatever it takes to avoid these lawsuits and the possibility of owing lots of money through settlements or judgments.
One such ‘out’ for homes could be through the use of medical review panels, which in the past have been used in certain states to ferret out tort claims against doctors and hospitals for negligence or malpractice. Such a panel would be comprised of certain individuals, at least some of which have experience in the relevant field, who will hold a hearing and decide whether or not a claim is meritorious enough to proceed to court, although in most states this is not binding but nevertheless could convince plaintiffs to change their minds, or at least just delay the process of going to court. The negative, however, is the chance that such panels will be more than likely to frown on a case and increase the chances of it not being brought to court. Typically such panel opinions will be admissible as evidence, and thus could be used as expert evidence by one side against another.
In the Commonwealth of Kentucky, there has been a proposal to create medical review panels that would review claims against medical providers including nursing homes, to determine whether they carry merit. Republicans within the state as well as various medical providers and the Kentucky Chamber of Commerce all support this law. One reason, in addition to a process to keep frivolous cases out of the courts, is that of the 284 nursing homes across Kentucky, far too many have below-par ratings, which would lead one to believe they are ripe for lawsuits given their poor performances in caring for residents. In the most recent of such medical review panel proposals in Kentucky, malpractice claims would go before a panel comprising three different health care providers that specialize in the relevant medical field and professions involved. This panel would hear a case and decide if the case has merit. This panel opinion would be admissible in court.
Of course parties can contract for arbitration, as typically has happened (although not as easily in at least one jurisdiction lately), or agree to bypass the panel and go to court. But with medical providers serving on these panels, one would assume that the defendants – doctors, hospitals, nursing homes and others – would jump at the chance to present their defense in the hopes their fellow medical providers will see things their way. Such bias could very well tilt things in favor of these defendants, and would have an adverse effect on plaintiffs one way or another.
With the victory of Democrats to keep the Kentucky House of Representatives in the recent election, the effort by Republicans to make these review panels a matter of law will likely be avoided. Yet there will be more elections, and the initiative to create such panels in Kentucky and in other states, it will be interesting to see if this idea retains and even gains traction as more laws are passed to protect the elderly and nursing residents, and more lawsuits are expected to be filed.
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