Courtney A. Simpkins, PharmD Candidate

When patients decide to sue health care providers, they may take different steps, depending on their state of residence. Many states have mandated the use of medical review panels (MRPs) to ensure there is a viable claim before the case proceeds to court. Other states allow plaintiffs to file claims directly in state court or have provisions for other approaches to dispute resolution, such as arbitration or mediation.

If a state requires an MRP, it usually consists of 3 health professionals who are experts in the area of the subject of the lawsuit: 1 chosen by the patient, 1 by the plaintiff, and the final decided on by the first 2 professionals.

 Although the goal of these MRPs is to avoid frivolous cases and the associated costs, they also pose a barrier to patients when attempting to seek compensation for legitimate medical malpractice.

The use of MRPs can be traced back to 1976, when Arizona established mandatory MRPs to address the overwhelming number of medical malpractice cases that were being filed.

The goal was for a small group of professionals to evaluate each case and predict the outcome to end disputes more cheaply and quickly. The idea was that settling a malpractice claim out of court would ideally lead to lower costs for both parties, a shorter duration of the case, and possibly reduced malpractice insurance rates for health care providers.

 The results of an analysis of malpractice claims filed before and after the MRPs were implemented in Arizona showed that the MRPs were not successful on any of these fronts. Despite the lack of efficacy data for MRPs, 17 other states have implemented MRPs since then as a means of processing malpractice claims.

A study conducted in 2008 by Pinnacle Actuarial Resources Inc, an actuarial and consulting firm, for the American Medical Association found the panels to be a promising solution. The investigators found that states with MRPs had liability insurance at a rate of 20% below the national average, shorter settlement times, lower claims costs, and a higher percentage of cases that closed without any payout compared with states without MRPs.

Most physicians and large health care industries, such as nursing homes, support the review panels. Statistically, this makes sense because most MRPs find minimal or no evidence of malpractice, which usually prevents the case from proceeding to court.

Most patients oppose the review panels because the mandate creates a large barrier to suing health care providers they think have committed malpractice. Instead of being able to file a complaint directly in state court, they must submit a request to the court for an MRP to be formed, send in the medical evidence, and wait up to a year or more, in many cases, for the panel to come to a conclusion. Then, the panel’s decisions and input can be used in the trial, although these are not considered evidence. Many lawyers and patients think that the fundamental right to access the court is infringed upon with this law.

This is why the Kentucky Supreme Court recently overturned the Medical Review Panel Act, which was enacted on June 29, 2017. This law stated that all medical malpractice suits must be screened by an MRP unless both parties agreed to bypass this step.

 Only after the MRP reached a decision about the defendant’s actions could the plaintiff file the complaint in state court. However, if the MRP took longer than 9 months to make a decision, the plaintiff could file the claim in state court.

The Kentucky Supreme Court reevaluated the law, considering Section 14 of the Kentucky Constitution in its decision, which states, “All courts shall be open, and every person for an injury done him in his lands, goods, person or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.”

Because the act created a mandatory delay in the process of filing a medical malpractice claim, the law was ruled unconstitutional on November 15, 2018.

As previously mentioned, each state has its own way of proceeding with medical malpractice claims, and there is still controversy over the best way to approach them. Although there are no data about the impact MRPs have on pharmacists, they would likely benefit pharmacists, as they do physicians, in the case of a malpractice claim.

If pharmacists are called to participate in an MRP, it is important to remember the patient and the pharmacist. The patient or a family member may have actually experienced negligence or their claim might be frivolous. The MRPs give pharmacists a chance to speak about the justified or unjustified actions of fellow pharmacists, but they also presume a large barrier and delay to patients when trying to submit medical malpractice claims.

 is a PharmD candidate at the University of Kentucky College of Pharmacy in Lexington.

Joseph L. Fink III, BSPharm, JD, DSc (Hon), FAPhA,

 is a professor of pharmacy law and policy and the Kentucky Pharmacists Association Endowed Professor of Leadership at the University of Kentucky College of Pharmacy.

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ncsl.org/research/financial-services-and-commerce/medical-liability-malpractice-adr-and-screening-panels-statutes.aspx

. Published May 20, 2014. Accessed July 25, 2019.

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The Expert Institute website. theexpertinstitute.com/are-medical-malpractice-review-panels-helping-or-hindering-the-legal-process/

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Ott RA. Kentucky Supreme Court holds that the Kentucky Medical Review Panel Act is unconstitutional. Reminger law firm website. reminger.com/insights-reports-798.html. Published November 15, 2018. Accessed July 25, 2019.

Bill of Rights. Kentucky General Assembly website. apps.legislature.ky.gov/law/constitution. Accessed July 25, 2019.

Articles

Mandated medical review panels can help health care professionals but hinder patients who file malpractice suits.