Bill on Bevin’s desk would require a malpractice lawsuit to certify that an expert has said it has a reasonable basis to be filed

By Al Cross Published March 22, 2019 HEALTH BUSINESS, HEALTH POLICY

Rep. Chad McCoy
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By Melissa Patrick
Kentucky Health News

A bill to require anyone filing a lawsuit against health-care providers to get a qualified expert to declare that the case has merit has passed the General Assembly and awaits the signature of Gov. Matt Bevin.

The bill passed the House 69-24 on March 1 and the Senate 37-0 on the consent calendar that is used to pass bills without debate.House Bill 429, sponsored by Rep. Chad McCoy, a plaintiffs’ lawyer from Bardstown, would require plaintiffs in most medical-malpractice lawsuits, including those against long-term care facilities, to file a “certificate of merit,” defined as “an affidavit or declaration” saying that the case has been reviewed by a qualified expert who says “that there is reasonable basis to commence the action.”

When presenting the bill to the House on March 1, McCoy, who is also the Republican whip, said all the lobbying interests on the malpractice-claims issue came to the table after the Kentucky Supreme Court struck down a 2017 law that required such claims to go before medical review panels before proceeding.

Chief Justice John Minton wrote in the court’s decision, “Of all the rights guaranteed by state constitutions but absent from the federal Bill of Rights, the guarantee of a right of access to the courts to obtain a remedy for injury is possibly the most important.”

When the 2017 law passed, McCoy warned his colleagues that it wasn’t constitutional, and suggested that the state instead require merit certificates or affidavits. This year, he told them the bill, if passed, would help to stop frivolous lawsuits. Earlier, he told the House Judiciary Committee that the bill was supported by the Kentucky Chamber of Commerce, the nursing-home association and the trial attorneys, and that the Kentucky Hospital Association was neutral.

The bill has exceptions. It says a certificate isn’t required if “the consultation could not reasonably be obtained” before the deadline to file a suit; if “the claimant or his or her counsel had made at least three separate good-faith attempts with three different experts to obtain a consultation and that none of those contacted would agree to a consultation, so long as none of those contacted gave an opinion that there was no reasonable basis to commence the action;” or if the plaintiff “intends to rely solely on one or more causes of action for which expert testimony is not required,” including claims of lack of informed consent or the legal doctrine that says an accident implies negligence.