DEVELOPMENTS IN HEALTHCARE LAW: MEDICAL REVIEW PANELS AND

NEGLIGENT CREDENTIALING

Sponsor: Young Lawyers Division CLE Credit: 1.0

Thursday, June 14, 2018 9:40 a.m. - 10:40 a.m.

Elkhorn A-D Lexington Convention Center

Lexington, Kentucky

A NOTE CONCERNING THE PROGRAM MATERIALS

The materials included in this Kentucky Bar Association Continuing Legal Education handbook are intended to provide current and accurate information about the subject matter covered. No representation or warranty is made concerning the application of the legal or other principles discussed by the instructors to any specific fact situation, nor is any prediction made concerning how any particular judge or jury will interpret or apply such principles. The proper interpretation or application of the principles discussed is a matter for the considered judgment of the individual legal practitioner. The faculty and staff of this Kentucky Bar Association CLE program disclaim liability therefore. Attorneys using these materials, or information otherwise conveyed during the program, in dealing with a specific legal matter have a duty to research original and current sources of authority.

Printed by: Evolution Creative Solutions 7107 Shona Drive

Cincinnati, Ohio 45237

Kentucky Bar Association

TABLE OF CONTENTS The Presenters ................................................................................................................. i Kentucky Medical Review Panels .................................................................................... 1 Negligent Credentialing Comes to Kentucky: Now What? ............................................ 19 Attachments .................................................................................................................. 39

THE PRESENTERS

Emily Newman Dzentis Newman, PLLC

6000 Brownsboro Park Boulevard, Suite F Louisville, Kentucky 40207

EMILY NEWMAN has defended, tried, and arbitrated cases throughout Kentucky, Ohio, and Michigan for professionals in various trades and fields. For the last 10 years she has focused her career on representing hospitals, doctors, long-term care facilities, and other healthcare providers in litigation and risk management. This includes obtaining a defense verdict in the defense of a nursing home in Northern Kentucky against a $53 million trial demand, successfully arbitrating a hospital case obtaining a favorable award, obtaining dismissal of punitive damages during a nursing home trial, and being awarded attorney’s fees after a defense verdict was returned for resident’s rights claims. Ms. Newman also lectures to medical providers on risk management and litigation. Prior to forming Dzenitis Newman, she was a partner in a large multi-state law firm where she was co-chair of the Long Term Care Liability practice group. Ms. Newman is a graduate of Miami University and received her J.D. from the University of Toledo School of Law. Rebecca R. Schafer Dzentis Newman, PLLC 6000 Brownsboro Park Boulevard, Suite F Louisville, Kentucky 40207 REBECCA R. SCHAFER is an attorney with the medical defense firm of Dzenitis Newman, PLLC in Louisville, Kentucky. Originally from Minnesota, she graduated from the College of Saint Benedict cum laude with a B.A. in Computer Science. Prior to obtaining her law degree from the University of Minnesota in 2007, she worked as a Software Engineer for Thomson Reuters. Ms. Schafer moved to Kentucky in 2007 and began practicing in the area of long-term-care defense. She has been recognized as a Kentucky Super Lawyers Rising Star (2013–2017) and Louisville Outstanding Volunteer Attorney (2010). Ms. Schafer has been an active member of the KBA Young Lawyers Division Executive Committee since 2010, and is currently serving as immediate past chair. She is also a member of the 2018 Defense Research Institute Nursing Home and Assisted Living Facility Steering Committee.

i

Joey Wright Thompson Miller & Simpson, PLC

734 West Main Street, Suite 400 Louisville, Kentucky 40202

JOEY WRIGHT is an associate with Thompson Miller & Simpson, PLC in Louisville. He is a graduate of the University of Kentucky and received his J.D. from the University of Kentucky College of Law. Mr. Wright is a member of the Louisville and Kentucky Bar Associations and serves as co-chair of the KBA Young Lawyers Division's CLE Committee. He also is a member of the Kentucky E-Courts Project Management Committee, and serves as the co-chair of the Sustainability of Legal Practice Working Group of the KBA's Kentucky Commission on the Future of the Legal Profession. In addition, Mr. Wright serves on the board of Second Chances Wildlife Rehabilitation Center.

ii

KENTUCKY MEDICAL REVIEW PANELS Emily Newman and Rebecca Schafer

I. INTRODUCTION

On June 29, 2017, Kentucky's Medical Review Panel Statute, KRS 216C, went into effect.1 This statute requires all medical malpractice claims to be submitted to a medical review panel ("MRP") prior to litigation.2 The MRP is led by an attorney chairperson and is comprised of three health care providers as panelists. The plaintiff and defendants submit evidence to the MRP, and the MRP renders an opinion as to liability. Regardless of the substance of the MRP's opinion, once it is issued the plaintiff may choose to file a civil complaint in court. If the MRP has not given its opinion within nine (9) months after filing of the proposed complaint, the plaintiff may nonetheless commence the action in court.3 The definition of "malpractice" and "malpractice-related" claims subject to KRS 216C is very broad.4 It includes absolutely any claim a patient (and the patient's family or estate) may have against all types of health care providers, so long as the claim "aris[es] out of health care or professional services that were provided, or should have been provided." The claims made by the patient's family or estate are referred to as "derivative claims."5 Some interesting scenarios to consider: • The health care provider alleges that the plaintiff was not a patient at the time

the services allegedly should have been provided. • The plaintiff slips and falls while walking out of the health care facility

following health care services. • The plaintiff slips and falls while walking into a health care facility for

purposes of seeking health care services. • The health care provider allegedly sexually assaults the patient.

1 KRS 216C.020(3). 2 KRS 216C.020(1). 3 KRS 216C.020(1)(b). 4 KRS 216C.010. 5 KRS 216C.010(7).

1

II. EXCEPTIONS

A. Arbitration Agreements6

B. Dependent Claims

1. "[A]ny claim against an entity or person that owns, controls, or manages any part of the operations of a health care provider, and which arises out of or relates in any way, in whole or in part, to a claim of malpractice or a malpractice-related claim."7

2. "Immediately and automatically" stayed.8

C. Cause of Action Filed before June 29, 20179

D. Agreement of the Parties10

1. In writing.

2. Signed by all parties.

3. Attach a waiver to the complaint filed with the trial court if the case is still ongoing. An example waiver is attached hereto and can also be found online at https://mrp.ky.gov/res/Documents/ 28waiver.pdf.

4. If the parties agree to settle or withdraw the case from the MRP

after it has already been submitted to the MRP but before the MRP has issued its opinion, then they should immediately submit notification to the Cabinet for Health and Family Services, Medical Review Panel Branch and chairperson (if already selected). An example notification is attached hereto and can be found online at https://mrp.ky.gov/res/Documents/27settlewdrawnotice.pdf.

5. The plaintiff and defendant are each responsible for 50 percent of

any fees and expenses incurred by the MRP prior to notification of settlement or withdrawal.11

6 KRS 216C.020(1). 7 KRS 216C.010(2). 8 KRS 216C.020(2). 9 KRS 216C.020(3). 10 KRS 216C.030. 11 900 KAR 11:010, Section 10(4)(b)(2).

2

III. INITIATING THE MEDICAL REVIEW PANEL PROCESS

A. Filing Proposed Complaint 1. Statute of limitations.

The filing of a proposed complaint tolls the applicable statute of limitations until 90 days after the plaintiff has received the opinion of the MRP. The plaintiff still needs to file the proposed complaint prior to the statute of limitations, just as one would with any other complaint. The tolling provision only applies if the claims are still valid at the time of filing the proposed complaint with the Cabinet for Health and Family Services, Medical Review Panel Branch.

2. Contents.

a. An example proposed complaint is attached hereto and can also be found online at https://mrp.ky.gov/res/ Documents/02propcomp.pdf

b. Kentucky Supreme Court district in which case would be filed.12

c. Name and current mailing address, phone number, and if

known, email address of each named party.13

i. For corporate defendants, it should be the person authorized to receive summons on behalf of the corporation per KRCP.14

ii. A proposed complaint cannot list an "unknown

defendant." Doing so will result in the proposed complaint being rejected by the Cabinet for Health and Family Services, Medical Review Panel Branch.15

d. Name and current mailing address, phone number and

email address of the plaintiff's attorney.16 e. Patient's name and date of birth.17

12 900 KAR 11:010, Section 4(1)(b)(6). 13 900 KAR 11:010, Section 4(1)(b)(1)(a). 14 900 KAR 11:010, Section 4(1)(b)(1)(b). 15 900 KAR 11:010, Section 4(1)(c). 16 900 KAR 11:010, Section 4(1)(b)(2). 17 900 KAR 11:010, Section 4(1)(b)(3).

3

f. Description of the malpractice, malpractice-related, and derivative claims, including:

i. Nature of the patient's injury;18

ii. Date of the alleged malpractice;19 iii Standard of care with which each defendant was

expected to comply;20 iv. The actions each defendant took or failed to take

that caused the defendant's failure to comply with the standard of care;21

v. How this failure caused or contributed to the

plaintiff's injury;22

g. Signature of plaintiff or plaintiff's counsel.23

3. Filing fee: $125 plus $12 for each defendant.24 a. If service of process is not completed because the

defendant's address was not valid, plaintiff must pay an additional $12 for each subsequent attempt at service.25

b. Check or money order made payable to Kentucky State

Treasurer.26 c. A request can be made to the Cabinet for Health and

Family Services, Medical Review Panel Branch, to waive filing fee based on indigency of the plaintiff.27

18 900 KAR 11:010, Section 4(1)(b)(4)(a). 19 900 KAR 11:010, Section 4(1)(b)(5). 20 900 KAR 11:010, Section 4(1)(b)(4)(b). 21 900 KAR 11:010, Section 4(1)(b)(4)(c). 22 900 KAR 11:010, Section 4(1)(b)(4)(d). 23 900 KAR 11:010, Section 4(1)(b)(7). 24 900 KAR 11:010, Section 4(2)(a)(1). 25 900 KAR 11:010, Section 4(2)(a)(2). 26 900 KAR 11:010, Section 4(2)(b). 27 See 900 KAR 11:010, Section 14 for specific requirements.

4

4. Hand-delivered, registered mail, or certified mail to:28 Cabinet for Health and Family Services Medical Review Panel Branch 275 East Main Street, 5W-A(MRP) Frankfort, KY 40621

B. Service of Proposed Complaint

1. Upon receipt of the proposed complaint, the Cabinet for Health

and Family Services, Medical Review Panel Branch will mail an Acknowledgement of Complaint Filing to the plaintiff.29 The acknowledgement will contain the filing date of the proposed complaint and the assigned MRP case number.30

2. Within ten days of receipt of the proposed complaint, the Cabinet for Health and Family Services, Medical Review Panel Branch will serve a copy by registered or certified mail on each defendant.31 Service is deemed complete upon receipt of the signed return mail receipt by the Cabinet for Health and Family Services, Medical Review Panel Branch.

C. Selection of Chairperson

1. Within ten days after service of the proposed complaint on all defendants, the Cabinet for Health and Family Services, Medical Review Panel Branch will notify all parties regarding confirmation of the date service on all defendants was completed.32

2. The parties can either agree to an attorney chairperson, or if no agreement can be reached within twenty days after service of the proposed complaint on all defendants, any party may pay a fee of $25 and request the Cabinet for Health and Family Services, Medical Review Panel Branch, to compile a random list of five potential chairpersons.33

28 https://mrp.ky.gov/file/Pages/default.aspx. 29 900 KAR 11:010, Section 4(4)(b)(1). 30 https://mrp.ky.gov/res/Documents/03cplaintacknowl.pdf. 31 KRS 216C.050. 32 900 KAR 11:010, Section 4(5)(a). 33 KRS 216C.070.

5

3. List of potential chairpersons will include attorneys:

a. who are licensed to practice law in Kentucky; b. who completed chairperson application; and c. who practice in Supreme Court district where case would

be filed or adjacent district if there are insufficient volunteers from applicable district

4. Parties use alternating striking of names on the list of potential

chairpersons, until there is one name left, with the plaintiff striking first and the defendant striking last.34 If there is more than one plaintiff or more than one defendant, their strikes shall be made collectively.

5. A party has five (5) days to notify the Cabinet for Health and Family Services, Medical Review Panel Branch via email at mrp@ky.gov as to which attorney they are striking.35 All correspondence with the Cabinet for Health and Family Services, Medical Review Panel Branch should include the MRP case number.

6. If a party fails to notify the Cabinet for Health and Family Services, Medical Review Panel Branch within five (5) days, the opposing party can request that the Cabinet draw at random a name to strike.36

7. After the Cabinet for Health and Family Services, Medical Review

Panel Branch is notified of each strike, or draws a name to strike due to an unresponsive party, it will send correspondence to the opposing party notifying them of the strike and that they have five (5) days to notify the Cabinet of the next strike. An example of this correspondence is attached hereto and can also be found online at https://mrp.ky.gov/res/Documents/07chairstrikenotice. pdf.

8. When one (1) name remains, that attorney shall be the chairperson of the panel.37 The Cabinet for Health and Family Services, Medical Review Panel Branch shall within five (5) days of the last strike notify the chairperson and all parties of the name selected.38

34 KRS 216C.070(3). 35 KRS 216C.070(5); https://mrp.ky.gov/res/Documents/06chairslate.pdf. 36 KRS 216C.070(5). 37 KRS 216C.070(3). 38 KRS 216C.070(6).

6

D. Ex Parte Communication with the Chairperson and/or Health Care Provider Panelists

"A party, a party's agent, a party's attorney, or a party's insurance carrier shall not communicate with any member of the panel, except as authorized by law, before the giving of the panel's opinion."39

IV. BECOMING AN ATTORNEY CHAIRPERSON

A. If one would like to be added to the list of attorneys maintained by the Cabinet for Health and Family Services, Medical Review Panel Branch, there is a very simple application to complete. A copy is attached hereto, and can also be found online at https://mrp.ky.gov/res/Documents/ 01chairapp.pdf

B. Upon selection, the Cabinet for Health and Family Services, Medical

Review Panel Branch will notify the chairperson via correspondence similar to what is attached hereto and can also be found online at https://mrp.ky.gov/res/Documents/09chairselectnotice.pdf

C. Within fifteen days of notification of selection, the chairperson must either

acknowledge appointment or serve an Affidavit of Undue Hardship.40 The Cabinet for Health and Family Services, Medical Review Panel Branch will notify the parties once the chairperson acknowledges appointment.41 If the chairperson is excused by the Cabinet from serving, the chairperson shall notify all parties and the parties shall start over with the process of selecting a new chairperson.42

D. Removal of the Attorney Chairperson

1. The Cabinet for Health and Family Services, Medical Review

Panel Branch may remove a chairperson if he is not fulfilling his duties.43

2. Upon removal of the chairperson, the parties select a new chairperson following the process described in Section III(C) above.44

39 KRS 216C.170(1). 40 KRS 216C.120(2); https://mrp.ky.gov/res/Documents/09chairselectnotice.pdf. 41 https://mrp.ky.gov/res/Documents/11chairacknowl.pdf. 42 KRS 216C.120(2). 43 KRS 216C.140. 44 KRS 216C.140.

7

E. Compensation 1. $250 per diem, not to exceed $2,000 per case;45 and

2. Reasonable travel expenses.46

3. The chairperson shall keep a record of the time and expenses of

all members of the MRP and submit to the parties for payment with the MRP opinion.47

V. SELECTING THE HEALTH CARE PANELISTS

A. Lists of Prospective Panelists

1. Within five days of acknowledging appointment, the chairperson must provide the parties with two lists containing three prospective health care provider panelists – a total of six prospective panelists.48 An example of the notification provided by the chairperson to the parties is attached hereto and can also be found online at https://mrp.ky.gov/res/Documents/ 12panelstrike.pdf

2. Prospective health care provider panelists must hold a valid,

active license to practice in his or her health care profession.49

a. To the extent "reasonably possible," the prospective panelists should be from the profession and specialty field of one (1) or more of the defendants.50

b. To the extent "reasonably possible," the prospective

panelists should be licensed in Kentucky.51

3. The parties are permitted to propose to the chairperson the profession and specialty field from which the lists of prospective panelists should be drawn.52

45 KRS 216C.220(2)(a). 46 KRS 216C.220(2)(b). 47 KRS 216C.220(3). 48 KRS 216.090(1). 49 KRS 216C.080. 50 KRS 216C.090(1). 51 KRS 216C.090(1). 52 KRS 216C.090(1).

8

4. Any health care provider who holds a valid, active license to practice in their profession is subject to being selected to serve on a MRP.53 It is similar to the jury duty obligation. A health care provider who has been selected will only be excused for good cause and must provide an affidavit to the chairperson setting out the facts as to why service on the MRP would constitute undue hardship.54

5. Health care provider panelists are paid a total of $350 plus

reasonable travel expenses.55

B. Striking Process 1. The plaintiff strikes one name from each of the two lists of

potential panelists.56

2. Then the defendant strikes one name from each of the two lists.57

3. The remaining name on each of the two lists will serve as panel members.58

4. If there is more than one plaintiff or more than one defendant, their strikes are made collectively.59

5. The chairperson has the authority to set a deadline for making

strikes, and if a party does not comply, the chairperson may make the strikes on their behalf and notify all parties.60

C. Challenging Selection of the First Two Panelists

1. Within ten days after the selection of the first two panelists, a party

may submit a written challenge to the chairperson regarding cause to dismiss a panelist for conflict or potential bias.61

53 KRS 216C.080. 54 KRS 216C.120(3). 55 KRS 216C.220. 56 KRS 216C.090(2). 57 KRS 216C.090(2). 58 KRS 216C.090(2). 59 KRS 216C.090(2). 60 KRS 216C.090(3). 61 KRS 216C.100(1).

9

2. If the chairperson agrees to dismiss the panelist, the chairperson will provide a new list of three prospective health care provider panelists to the parties.62

3. The party who submitted the challenge will strike one name,

followed by the opposing party striking one name, and the remaining name will be the new panelist.63

D. Selection of the Third Panelist

1. The chairperson will notify the two health care provider panelists

of their selection and instructions for selection of the third panel member. An example of the notification is attached hereto and can also be found online at https://mrp.ky.gov/res/Documents/ 14panelselectnotice.pdf

2. Within fifteen days after their selection, the two panelists must

then select a third panel member who:64

a. Is licensed to practice in his or her health care profession; and

b. Is from the profession and specialty field of one or more of

the defendants.

3. If the two panelists fail to make their selection and notify the chairperson and parties within fifteen days, the chairperson shall make the selection and notify the parties.65

4. Within five days after selection of the third panelist, the

chairperson must notify the Cabinet for Health and Family Services, Medical Review Panel Branch and the parties by registered or certified mail of: 66

a. The names and addresses of all three health care provider

panel members; and b. The date on which the last panelist was selected.

62 KRS 216C.100(1). However, if the dismissed panelist had been selected by the chairperson because one of the parties did not comply with its deadline for making its strikes, then the chairperson will simply select for a new panelist. KRS 216C.100(2). The striking process will not be used in that instance. 63 KRS 216C.100(1). 64 KRS 216C.090(3). 65 KRS 216C.090(3). 66 KRS 216C.110.

10

5. The chairperson will notify the third health care provider panelist of her selection. An example of the notification is attached hereto and can also be found online at https://mrp.ky.gov/res/ Documents/15panelist3rdnotice.pdf

E. Challenging Selection of the Third Panelist

1. Within ten days after the selection of the third panelist, a party

may submit a written challenge to the chairperson regarding cause to dismiss the panelist for conflict or potential bias.67

2. If the chairperson agrees to dismiss the panelist, then whoever

selected the dismissed panelist (either the chairperson or the other two panel members) will make a new selection.68

F. Other Justification for Dismissal of a Panelist

1. If a health care provider panelist is excused by the chairperson for

good cause based on the health care provider's affidavit of undue hardship, the chairperson shall notify the parties.69

2. The chairperson may also remove a panelist for failure to fulfill his duties.70

3. If that panelist was selected by the chairperson or other two panelists, then they shall make a new selection.71 If that panelist was selected using the striking process, the chairperson shall provide a new list of three prospective health care provider panelists and the striking process will be repeated.72

VI. PRESENTATION OF EVIDENCE

A. Schedule 1. Plaintiff must submit all evidence to the MRP within sixty days of

the chairperson's notification by certified or registered mail that the last panelist was selected.73

67 KRS 216C.100(1). 68 KRS 216C.100(2). 69 KRS 216C.120(3). 70 KRS 216C.150. 71 KRS 216C.100(2). 72 KRS 216C.100(1). 73 KRS 216C.160(6).

11

2. Defendant must submit all evidence to the MRP within forty-five days of the receipt of Plaintiff's submission of evidence.74

3. The chairperson may extend these deadlines if requested by one

or more of the parties to allow "reasonable time" for the parties to make "full and adequate presentation of related facts and authorities."75

B. Depositions

May only be taken with the approval of the chairperson and after the panel has been formed.76

C. Subpoenas 1. Upon request of any party or panelist, the chairperson shall issue

administrative subpoenas for depositions and production of documents.77

2. A copy of the administrative subpoena is attached hereto and can also be found online at https://mrp.ky.gov/res/Documents/ 20subpoena.pdf

D. Evidence Submitted to the MRP by the Parties 1. Only non-privileged information should be submitted.78

2. Only medical records, X-rays, lab tests, excerpts of treatises,

depositions, and affidavits.79 3. The chairperson will send written notification to the parties of the

email and mailing address to use to submit evidence.80

4. Evidence may be submitted in hardcopy or electronic form81 to the panel chairperson, with copies to all other parties.82 If the

74 KRS 216C.160(7). 75 KRS 216C.060(3). 76 KRS 216C.160(3). 77 KRS 216C.160(4). 78 KRS 216C.160(2). 79 KRS 216C.160(2). 80 900 KAR 11:010, Section 9(4)(a). 81 KRS 216C.160(1). 82 900 KAR 11:010, Section 9.

12

evidence is in hardcopy, then four copies need to be mailed to the chairperson.83

5. The chairperson is responsible for forwarding copies of all

evidence received from the parties to the health care provider panelists.84 The chairperson is to "ensure that before the panel gives its opinion, each panel member has the opportunity to review every item of evidence submitted by the parties."85 The chairperson must also collect necessary forms from the panelists and convene the MRP. An example of the request from the chairperson to the panelists is attached hereto and can also be found online at https://mrp.ky.gov/res/Documents/18evrev.pdf

E. Types of Evidence that May Be Requested by the MRP

1. The MRP has the "right and duty" to request "all necessary and

relevant information."86

2. May consult with medical authorities.87

3. May examine reports of other health care providers.88

4. May conduct a hearing to question counsel and/or the parties.89

5. All parties shall have full access to any material submitted to the MRP.90

F. Motions that May be Made to the Chairperson

The parties may tender motions to the chairperson regarding expediting the review process and to allow for "full and adequate presentation of related facts and authorities."91

83 900 KAR 11:010, Section 9(5). 84 900 KAR 11:010, Section 9(6). 85 KRS 216C.160(5). 86 KRS 216C.170(2)(a). 87 KRS 216C.170(2)(b). 88 KRS 216C.170(2)(c). 89 KRS 216C.170(2)(e). 90 KRS 216C.170(2)(d). 91 900 KAR 11:010, Section 8.

13

G. Motions that May be Made to the Trial Court 1. Sanctioning a party, attorney, or panelist for failing to comply with

KRS 216C without good cause shown.92 2. Compelling or limiting discovery previously authorized by the

MRP.93

3. Enforcing or quashing subpoenas issued by the chairperson.94

4. Such a motion can be made by a party or the chairperson by paying the circuit court filing fee and filing a petition, copy of the proposed complaint, and motion.95 Summonses must be served on the Cabinet for Health and Family Services, Medical Review Panel Branch, all nonmoving parties, and the nonmoving chairperson.96

5. Each nonmoving party, the Cabinet for Health and Family

Services, Medical Review Panel Branch, and the chairperson will have twenty-three days after service to file and serve a written response to such a motion.97 The trial court may enlarge this period for cause shown.

6. Such a motion automatically stays the MRP proceedings until the

trial court has entered its ruling.98

VII. THE MEDICAL REVIEW PANEL OPINION

A. Preparing the Opinion 1. The chairperson shall advise the MRP relative to any legal

question involved in the review proceeding.99

92 KRS 216C.130. 93 KRS 216C.240(1)(a). 94 KRS 216C.240(1)(b). 95 KRS 216C.250(1). 96 KRS 216C.250(3). 97 KRS 216C.260(1). 98 KRS 216C.270. 99 KRS 216C.170(3).

14

2. Within thirty days of receipt of the defendant's evidence,100 each health care provider panelist must complete Form MRP-022,101 which is attached hereto and can also be found online at https://mrp.ky.gov/res/Documents/22mrpmembop.pdf

3. After the panelists complete form MRP-022, the forms are submitted to the chairperson. If at least two of the panelists agree on the conclusion as to a defendant, then the chairperson has five days to complete form MRP-023 and submit by registered or certified mail to the parties, the parties' attorneys, the panelists, and the Cabinet for Health and Family Services, Medical Review Panel Branch.102 Form MRP-023 is attached hereto and can also be found online at https://mrp.ky.gov/res/Documents/ 23chairfinrep.pdf

4. However, if there is not agreement by at least two of the panelists,

then the chairperson shall instruct them to continue deliber-ations.103

B. Payment of MRP Fees

1. All fees of the panel, including travel expenses and other

expenses of the review, shall be paid by the party or parties in whose favor the opinion is written.104

2. If the case settles or is withdrawn prior to receipt of the MRP opinion, then the parties must either agree on payment, or in the absence of an agreement, the fees will be divided fifty percent to the plaintiff and fifty percent to the defendant.105

3. Payment shall be made by check or money order to the

chairperson within thirty days of the MRP opinion or the date of settlement.106

4. Failure to pay within thirty days will result in interest at Kentucky's

post-judgment interest rate from the date of the opinion or the date of settlement.107

100 KRS 216C.180(2). 101 900 KAR 11:010, Section 10(1). 102 900 KAR 11:010, Section 10; KRS 216C.230. 103 900 KAR 11:010, Section 10(2)(b); KRS 216C.180(3). 104 KRS 216C.220(4). 105 900 KAR 11:010, Section 11(4)(b). 106 900 KAR 11:010, Section 11(5).

15

C. Regardless of the opinion of the MRP, the plaintiff still has a right to file his or her case in trial court.

D. Upon motion, the trial court may admit the MRP opinion into evidence as

an expert opinion.108

1. The trial court's order must include a finding that the MRP opinion would "assist the trier of fact" and that the MRP opinion "otherwise compl[ies] with the Kentucky Rules of Evidence."109

2. If admitted as evidence, the MRP opinion is subject to cross-examination and is not conclusive.110

E. A party may call "any member of the medical review panel as a witness"

in trial court.111 The member must appear and testify but is entitled to reasonable compensation by the party calling the witness. 112

VIII. CONSTITUTIONAL CHALLENGE AND THE FUTURE OF MEDICAL REVIEW PANELS IN KENTUCKY

A. Commonwealth of Kentucky, Cabinet for Health & Family Services v.

Claycomb 1. Franklin Circuit Court Opinion & Order entered October 30, 2017.

a. "Those that cannot afford the additional delays and costs

should not be prevented from pursuing their constitutional right to a 'remedy by due course of law.'"

b. Barred the Cabinet for Health and Family Services from

enforcing the MRP statute.

2. Kentucky Court of Appeals Order granting emergency relief entered on November 9, 2017. a. "[E]ighty-nine cases are now pending before the Cabinet in

reliance on the Act. . . We have examined the record before us and conclude no provision was undertaken to avoid the fatal effect of the limitations statutes on the

107 900 KAR 11:010, Section 11(5)(b). 108 KRS 216C.200(1). 109 KRS 216C.200(1). 110 KRS 216C.200. 111 KRS 216C.200(2). 112 KRS 216C.200(2).

16

claims of persons who, in obedience to the Act, failed to timely file a lawsuit in a court."

b. Stayed the injunction entered by the Franklin Circuit Court

until further order of the Kentucky Court of Appeals.

3. Kentucky Supreme Court Order granting transfer to Kentucky Supreme Court and expedited briefing schedule entered on December 6, 2017.

4. Briefing to the Kentucky Supreme Court completed on February

21, 2018, with date of oral arguments yet to be determined.

IX. QUESTIONS?

A. mrp@ky.gov

B. (502) 564-7042 (Medical Review Panel Branch)

17

18

NEGLIGENT CREDENTIALING COMES TO KENTUCKY: NOW WHAT? Joey Wright

I. INTRODUCTION The Kentucky Supreme Court, in November 2017, greatly expanded the scope of

potential liability faced by Kentucky hospitals. In Lake Cumberland Regional Hospital, LLC v. Adams,1 the Court recognized a new avenue of recovery centered on a hospital's alleged breach of its credentialing process. Moving beyond the traditional notion of health care facilities being subjected to vicarious liability for their agents' conduct, the Court held that Kentucky facilities could be held liable directly for their own alleged negligence – a sizable shift in Kentucky medical-negligence law, to be sure.

But what does that shift mean going forward? II. WHAT IS CREDENTIALING2

Credentialing "refers to the process of determining whether to make a physician a member of the hospital staff."3 With each hospital, an administrative group, called a "credentialing committee," determines whether to grant a candidate-physician "privileges" to join a hospital's independent medical staff, allowing the physician to admit and to treat patients at the hospital.4 Typically, these committees are comprised of volunteer, independent-contractor physicians. A health care facility's credentialing committee "undertakes an elaborate, three-part credentialing process that involves (1) an extensive review of the physician's application, (2) independent verification of the application's veracity, and ultimately (3) a recommendation to the hospital's governing board as to whether to permit the physician to become part of the hospital's medical staff."5 Health care facilities operate amid a patchwork of state and federal laws, along with myriad accreditation standards, which all require varying degrees of compliance. Credentialing, however, is an area that has largely been left to each

1 536 S.W.3d 683 (Ky. 2017). 2 The Kentucky Supreme Court did not recognize a standalone tort called negligent credentialing. But, for ease of reference, "negligent credentialing" will be used as a general descriptor of all negligence allegations against a health care facility for its own negligence in selecting or supervising its medical staff. 3 Ronald L. Spaeth, et al., "Quality Assurance and Hospital Structure: How the Physician-Hospital Relationship Affects Quality Measures," 12 Annals Health L. 235, 236-37 (2003). 4 See, e.g., id. 5 Amy E. Watkins, Negligent Credentialing Lawsuits: Strategies to Protect Your Organization, p. 3 (HCPro, Inc. 2005).

19

hospital's discretion – although the act of credentialing is required, the manner in which it is done is not strictly dictated. The leading hospital accreditation agency, The Joint Commission,6 "certifies more than 21,000 health care organizations and programs in the United States," and provides standards for which hospitals and other health care facilities look to for guidance.7 "Compliance with Joint Commission standards is important to participating hospitals for a variety of reasons, not the least of which is that a hospital that meets these standards is deemed to meet the Medicare Conditions of Participation,"8 necessary to receive Medicare funding.9 Hospitals are not required to obtain accreditation from the Joint Commission, but such accreditation allows them to receive Medicare funding and avoid undergoing further certification.10 This affects more than just hospitals. All health care facilities, including long-term care facilities or ambulatory surgical clinics must perform credentialing or otherwise ensure their staff is properly qualified.

III. THE TORT OF NEGLIGENT CREDENTIALING

"Until the 1950s, most hospitals were viewed simply as a place where independent physicians came together to practice medicine."11 The school of thought was that "hospitals did not undertake to treat patients or act through their doctors or nurses," but, instead, simply "procur[ed] physicians to act upon their own responsibility."12 Over time, however, "licensing regulations, accreditation standards, and financial incentives from reimbursement agencies became more stringent and required hospitals to exercise greater oversight over their medical staff."13 And, as early as 1957, the traditional view of hospitals began to crumble. In Bing v. Thunig, the court flatly rejected the thought:

6 "Founded in 1951, The Joint Commission seeks to continuously improve health care for the public, in collaboration with other stakeholders, by evaluating health care organizations and inspiring them to excel in providing safe and effective care of the highest quality and value. . . . An independent, not-for-profit organization, The Joint Commission is the nation’s oldest and largest standards-setting and accrediting body in healthcare." (https://www.jointcommission.org/ about/jointcommissionfaqs.aspx?CategoryId=10#2274) 7 https://www.jointcommission.org/about_us/fact_sheets.aspx. 8 Calvin L. Raup, et al., "Negligent Credentialing and Peer Review: A Primer for the Non-Health Care Attorney," Arizona Attorney, at p. 31 (March 2010). 9 See 42 U.S.C. §1395bb(a) (2006); see also 42 C.F.R. §488.5 (2009). 10 See 42 U.S.C. §§1395x(e), 1395bb; 42 C.F.R. §488.5. 11 Amy E Watkins, Negligent Credentialing Lawsuits: Strategies to Protect Your Organization, p. 7 (HCPro, Inc. 2005). 12 Id. 13 Id.

20

Present-day hospitals, as their manner of operation plainly demonstrates, do far more than furnish facilities for treatment. . . . Certainly, the person who avails himself of 'hospital facilities' expects that the hospital will attempt to cure him, not that its nurses or other employees will act on their own responsibility.14

And then in 1965, the first ripple of what has now become a tidal wave of change in understanding of hospital liability began. The Illinois Supreme Court, in Darling v. Charleston Comm. Mem. Hosp.,15 "held that the hospital was not simply the provider of work space for medical personnel, but rather that the hospital assumed certain responsibilities to the patients admitted upon its premises."16 The doctor in Darling improperly set a patient's broken leg and wrapped the cast too tightly, resulting in necrosis. In addition to suing the doctor, the plaintiff alleged the hospital failed to require the doctor to keep his procedures up to date (in fact, he had only set two broken ankles and could not recall studying any orthopedic procedure within 10 years of the incident), failed to train its nurses, failed to prohibit the doctor from performing orthopedic work or requiring him to consult with a specialist. In effect, of course, the plaintiff alleged the hospital had improperly monitored and privileged its physician. Different than traditional medical malpractice, negligent credentialing arises from the health care facility's direct negligence. Currently, approximately 30 states recognize negligent credentialing, either as a stand-alone tort or as a form of corporate negligence.17 Virtually all courts are in agreement that the claim is

14 143 N.E.2d 3, 8 (N.Y. 1957). 15 211 N.E.2d 253, 260 (Ill. 1965). 16 Whitney Foster, "Health Law – Negligent Credentialing and You: What Happens When Hospitals Fail to Monitor Physicians," 31 U. Ark. Little Rock L. Rev. 321, 325 (2009). 17 Humana Med. Corp. of Ala. v. Traffanstedt, 597 So.2d 667, 668-69 (Ala. 1992); Fletcher v. South Peninsula Hosp., 71 P.3d 833, 842 (Alaska 2003); Tucson Med. Ctr., Inc. v. Misevch, 545 P.2d 958, 960 (Ariz. 1976); Elam v. College Park Hosp., 132 Cal.App.3d 332 (Cal. App. 1982); Kitto v. Gilbert, 570 P.2d 544, 550 (Col. App. 1977); Insinga v. LaBella, 543 So.2d 209, 214 (Fla. 1989); Mitchell Co. Hosp. Auth. v. Joiner, 189 S.E.2d 412, 414 (Ga. 1972); Domingo by and through Domingo v. Doe, 985 F.Supp. 1241, 1244-45 (D. Haw. 1997); May v. Wood River Twp. Hosp., 629 N.E.2d 170, 171 (Ill. 1994); Winona Memorial. Hosp., Ltd. P’ship v. Kuester, 737 N.E.2d 824, 828 (Ind. App. 2000); Baublitz v. Peninsula Regional Med. Ctr., 2010 WL 3199343, at *6 (D. Md. Aug. 12, 2010); Ferguson v. Gonyaw, 236 N.W.2d 543, 550 (Mich. App. 1975); Larson v. Wasemiller, 738 N.W.2d 300, 313 (Minn. 2007); Taylor v. Singing River Hosp. Sys., 704 So.2d 75, 78 n.3 (Miss. 1997); Brookins v. Mote, 292 P.3d 347, 361 (Mont. 2012); Corleto v. Shore Memorial Hosp., 350 A.2d 534, 537-38 (N.J. Sup. 1975); Diaz v. Feil, 881 P.2d 745, 749 (N.M. App. 1994); Sledziewski v. Cioffi, 137 A.D.2d 186 (N.Y. App. 1988); Blanton v. Moses H. Cone Memorial Hosp., Inc., 354 S.E.2d 455, 458 (N.C. 1987); Albain v. Flower Hosp., 553 N.E.2d 1038, 1045 (Ohio 1990); Strubhart v. Perry Memorial Hosp. Trust Auth., 903 P.2d 263, 276 (Okla. 1995); Welsh v. Bulger, 698 A.2d 581, 586 (Pa. 1997); Rodrigues v. Miriam Hosp., 623 A.2d 456, 462-63 (R.I. 1993); Crumley v. Memorial Hosp., Inc., 509 F.Supp. 531, 535 (E.D. Tenn. 1978); Garland Cmty. Hosp. v. Rose, 156 S.W.3d 541, 545-46 (Tex. 2004); Wheeler v. Cent. Vt. Med. Ctr., Inc., 582 A.2d 165, 166 (Vt. 1989); Pedroza v. Bryant, 677 P.2d 166, 168-70 (Wash. 1984); Roberts v. Stevens Clinic Hosp., Inc., 345 S.E.2d 791, 798 (W.Va. 1986); Johnson v. Misericordia

21

derivative of the physician's negligence and "[a]ll courts that have looked at the question have concluded that expert testimony is necessary to establish the standard of care owed by a hospital, or whether the hospital has been negligent."18

IV. KENTUCKY SUPREME COURT'S ADAMS DECISION

Adams was the consolidation of three separate cases involving two different physicians granted credentials to practice at Spring View Hospital and Lake Cumberland Regional Hospital. The plaintiffs all underwent different procedures and had different outcomes, but each alleged hospital liability via negligent credentialing: • Helen Adams underwent a spinal stabilization surgery at Lake Cumberland

performed Dr. Guy Sava. Due to complications during the surgery and Adams' comorbidities, the surgical hardware could only be placed on one side. Adams's pain continued after surgery and Dr. Sava performed a subsequent procedure, but Adams's problems continued.

• Joseph Spalding fractured his hip in January 2009 which necessitated

surgery. The surgery was performed by Dr. Daniel Bailey at Spring View. Spalding experienced various complications including failure of the knee prosthesis, severe infection, and necrosis. Eventually, Spalding's leg was amputated above the knee.

• Laura Jones (now Epley) injured her knee in 2005, sought treatment from Dr.

Bailey at Spring View in August 2007, and underwent knee-replacement surgery. Jones experienced complications after the surgery and filed suit after a subsequent doctor indicated Dr. Bailey may have caused her injury.

Initially, the Court acknowledged the serious policy implications associated with recognizing negligent credentialing as a new cause of action, especially "its impact on rural hospitals and communities in the Commonwealth."19 Because the effect of such a cause of action was "unknown," the Court refused to recognize negligent credentialing as a standalone cause of action.20 Lest one think negligent credentialing met a quick death, the Court did not stop there.

The Court reasoned that hospitals have become less charitable (not-for-profit) and more corporate, "moving away from traditional physician employees and instead are granting hospital privileges to independent contractor physicians."21

Cmty. Hosp., 301 N.W.2d 156, 164 (Wisc. 1981); Greenwood v. Wierdsma, 741 P.2d 1079, 1088 (Wyo. 1987). 18 Benjamin J. Vernia, "Tort Claim for Negligent Credentialing of Physician," 98 A.L.R. 5th 533, 533 (2002). 19 Adams, 536 S.W.3d at 690. 20 Id. 21 Id. at 691.

22

Putting aside the unnecessary (and misleading22) reasoning that Kentucky's hospitals are becoming ever more corporate, the Court recognized that "[w]hat has remained constant is that hospitals are required to exercise ordinary care," and "have a duty to make sure patients receive a medically acceptable standard of care," which includes "making sure qualified staff are providing the appropriate medical care."23 The Court relied exclusively on Illinois Cent. R. Co. v. Buchanan,24 a case involving a railroad company creating and staffing its hospital for its employees, to conclude that "[i]t is clear that the duty on hospitals to employ competent staff has existed in the Commonwealth at least since the beginning of the twentieth century."25

From this reasoning, it was a short walk for the Court to reach its final conclusion: under general negligence principles, a "hospital can certainly be liable for its own negligence, separate and distinct from any negligence on the part of a physician – even a non-employee physician;" therefore, "a new cause of action is not necessary for the plaintiffs' claims."26 Negligent credentialing lives! In essence, the Court closed the front door only to open the back. A plaintiff cannot receive a negligent credentialing jury instruction, but can assert a negligent credentialing claim under a general-negligence instruction.27

When a plaintiff brings an action against a hospital for negligent credentialing, Adams makes clear that the objective standard of care "is that expected of a reasonably competent hospital, acting in the same or similar circumstances."28 And "[j]ust like in a medical malpractice case, where plaintiff must present expert testimony regarding the standard of care and the breach thereof, the plaintiff carries the same burden in a negligence action against a hospital."29 Before highlighting the Court's offered guidance for future proceedings, it is important to emphasize an aspect of Adams that is overshadowed by its negligent credentialing discussion: a hospital's policies or bylaws do not set the standard of care for a negligence case. The Court was clear that "Spring View's

22 In the Kentucky Hospital Association’s amicus brief before the Court, it noted that of 109 total private hospitals in Kentucky, 80 (73 percent) are non-profit, IRS 501(c)(3) entities. KHA Brief at p. 9 (available at: http://apps.courts.ky.gov/Supreme/briefs/16-181-ac1.pdf). Sixty-eight of all hospitals – over 50 percent – are "located outside metropolitan statistical area and thus are considered to be rural." Id. 23 Adams, 536 S.W.3d at 691. 24 103 S.W. 272 (Ky. 1907). 25 Adams, 536 S.W.3d at 691. 26 Id. 27 "We also reiterate that plaintiffs already have a means by which to recover against a hospital for allowing incompetent physicians to provide medical care. That means is the common law tort theory of negligence." Id. at 696. 28 Id. 29 Id. 697.

23

bylaws do not, in and of themselves, establish the standard of care."30 In fact, a hospital's "bylaws do not create a higher standard of care or otherwise alter its liability."31 This is a welcome pronouncement for defense attorneys after years of relying on vague versions in Rogers v. Kasdan32 and its progeny.

Finally, the Court attempted to offer trial courts guidance when presented with claims alleging direct hospital liability for credentialing. These claims are "derivative of the medical malpractice claim against the physician,"33 which means that a "plaintiff will be unable to prove causation in the negligence action against the hospital" without first proving that the physician committed malpractice.34 As a result, "best practice involves bifurcating the trials" because that "allows for clear presentation of the issues to the jury as well as responsible use of judicial resources."35 And, if a physician defendant settles, "the plaintiff still has to present evidence of the doctor's negligence to prove causation in his or her case against the hospital."36 Adams Takeaways: • Negligent credentialing is not a standalone cause of action in Kentucky. • That said, plaintiffs can bring a common-law negligence action against the

hospital for the hospital's own negligence in selecting or supervising its medical staff.

• The standard of care in such claims "remains the objective, reasonable

person (hospital) standard." • Expert testimony is required. • The claim against the hospital or other health care facility is derivative of the

medical malpractice claim against the physician – the physician's negligence must be proven first.

• Bifurcation is best practice. • A hospital's bylaws do not change the standard of care.

30 Id. at 696. 31 Id. at 695. 32 612 S.W.2d 133 (Ky. 1981). 33 Adams, 536 S.W.3d at 691-92. 34 Id. 35 Id. at 30. 36 Id.

24

V. WHAT MAY LEAD TO NEGLIGENT CREDENTIALING CLAIMS

Circumstances leading to a negligent credentialing claim being filed against a hospital fall across a rather wide spectrum. The following is a brief – read: non-exhaustive – list of examples from other jurisdictions and potential credentialing red flags: A. Larson v. Wasemiller, 738 N.W.2d 300 (Minn. 2007) – Physician was

subject to numerous prior medical malpractice claims, but credentialing committee failed to review them. Note: This scenario is common. It is highly unlikely that a physician, especially those in high-risk specialties (obstetrics, for example) have no past medical malpractice claims.37 But mere knowledge alone is usually insufficient to constitute negligent credentialing. In Strubhart v. Perry Memorial Hosp. Trust Auth., the Oklahoma Supreme Court expressed doubt that a hospital's duty required hospitals to review a physician's work in all cases –instead, the court limited the duty to the use of ordinary care in situations involving (1) the granting of staff privileges only to competent physicians; and (2) the reevaluation of physicians holding privileges when the hospital knows or should know the physician "has engaged in a pattern of incompetent behavior."38

B. Johnson v. Misericordia Comm. Hosp., 301 N.W.2d 156 (Wisc. 1980) –

Physician's privileges at past hospitals had been restricted or revoked; physician had seven malpractice suits before being appointed to hospital's medical staff; physician claimed to be board-certified, but, in fact, was not; physician was never on the staff at some of the hospitals listed in his application. Note: The Johnson case is important to highlight that courts have recognized a hospital's obligation to investigate a physician's application. 1. A physician may present false or misleading information, but

courts have held that hospitals are responsible for determining an application's veracity.

2. Johnson is also important because the court emphasized that the

physician's status, i.e. independent contractor, was irrelevant because the hospital was liable under its own duty, not the physician's. See also Fridena v. Evans, 622 P.2d 463 (Ariz. 1980).

37 OB/GYNs are among the most sued physicians in the country, with 88 percent of all OB/GYNs being sued by the age of 45. Anupam B. Jena, et al., "Malpractice Risk according to Physician Specialty," New England J. of Med., Aug. 18, 2011. More generally, by age 45, 36 percent of physicians in low-risk specialties, such as family medicine, have been sued – meanwhile, 88 percent of those in high-risk specialties have been sued. Id. By age 65, 99 percent of all physicians in high-risk specialties, e.g. surgeons, have been sued. Id. Prior lawsuits, alone, are not a valid indicator of whether credentialing is appropriate. 38 903 P.2d 263, 275-76 (Ok. 1995).

25

C. Board Certification In their bylaws, hospitals often have board certification as a requirement for credentials. In Adams, for example, Spring View required board-certified doctors, but Dr. Bailey "left blank the section of his application requesting specialty boards in which the physician was certified."39 While a hospital's policies or bylaws do not alter its standard of care, it is advisable that hospitals follow their policies and bylaws. Note: Board certification more deeply affects rural hospitals, which have trouble recruiting board-certified physicians. "In urban counties, 70 percent of physicians are board certified, compared with about 60 percent in rural counties."40

D. Red Flags 1. Applicant reluctance – applicant is uneasy about or unwilling to

allow a hospital to contact previous employers or provide specific information.

2. Evidence of substance abuse issues.

Note: Like malpractice suits, the presence of substance abuse issues alone is not sufficient to constitute negligent credentialing. To be sure, substance abuse is a problem within the medical field (approximately "10 to 12% of physicians will develop a substance abuse disorder during their careers").41 That said, physicians do exceedingly well in treatment rehabilitation, with higher-than-average abstinence rates between 74 percent to 90 percent.42

3. Applicant has short tenures at previous organizations or hospitals.

4. Applicant has evidence of prior professional disciplinary actions.

5. Applicant has poor performance evaluations. 6. Applicant has history of limitation, reduction, or loss of clinical

privileges. 7. Applicant has a history of discipline with a medical licensure

board.

39 Adams, 536 S.W.3d at 688. 40 M.E. Miller & S. Zuckerman, Comparing Urban and Rural Physicians, Health Affairs, 10, no.4 (1991), at 245 (available at: http://content.healthaffairs.org/content/10/4/243.full.pdf). 41 Keith H. Barge, M.D., et al., Chemical Dependency and the Physician, Mayo Clinic. Proc., July 2009, at 625. 42 Id.

26

VI. FUTURE PROCEDURAL CONCERNS/PRACTICE POINTS

A. Hospital Policies, Procedures, and Bylaws

1. Initial credentialing.

Rural and urban or academic hospitals differ greatly in structure and operation. "Due to differences in hospital structure between the community and university hospitals, the same measures used to obtain a higher quality of care may often result in very opposite outcomes."43 Hospital operation and credentialing are, therefore, not one-size-fits-all endeavors; there is no best way. Each hospital's policies must, accordingly, be workable and appropriate for that facility's needs. With that said, below are considerations or thoughts to consider if advising a hospital client or reviewing a hospital's bylaws while investigating a claim:44

a. Hospitals should regularly review their medical staff bylaws

to ensure that they comply with applicable standards, including the Joint Commission and Medicare Conditions of Participation.

b. Hospitals should review whether the physician has ever

had his privileges revoked or sanctioned at another facility. c. Hospitals should attempt to confirm an applicant's work

history, board certifications, National Practitioner Data Bank information, and Drug Enforcement Administration status. In doing so, a hospital should check for any gaps in time.

d. Hospitals should obtain and critically review an applicant's

peer reviews. e. Hospitals should, of course, obtain information relating to

an applicant's past medical malpractice suits, if any. Going a step further, hospitals should attempt to review any past lawsuits to determine what happened and what the results were.

f. If a hospital grants initial privileges or credentials pending

the occurrence of an event such as board certification, it is imperative that the hospital make sure the event is completed before finalizing a physician's position with the hospital's medical staff.

43 Spaeth, supra note 2, at 242. 44 Of note, Kentucky, like a number of other states, has a mandatory, standardized credentialing form. See KRS 314.17A-545 (KAPER-1 B form for doctors to be credentialed on insurance companies’ list of providers).

27

g. If an application has any incomplete data or gaps in time, the hospital should question the applicant regarding the gaps.

h. Hospitals should complete and review necessary

background checks including criminal checks. i. Hospitals should require and review clinical activity for the

privileges requested in order to confirm that the physician has the ability to perform the privileges requested.

j. Hospitals should compare any information independently

obtained with the information provided by the applicant to ensure the applicant has completely and accurately completed their application.

In addition, it is advisable that hospitals or other health care facilities follow Joint Commission guidelines. Complying with Joint Commission guidelines has, in fact, been sufficient to support entry of summary judgment for a hospital.45 And when counseling health care facilities (or, again, when investigating a potential claim against a health care facility), it is imperative that attorneys become familiar with federal and state regulations, accreditation standards, and reimbursement requirements. Special considerations or circumstances will need to be addressed with clients. Telemedicine, for example, has been growing rapidly in all aspects of health care. For rural hospitals, telemedicine is critical technology that often serves as a lifeline to keep the facility's doors open.46 Current Centers for Medicare & Medicaid Services (CMS) guidelines allow facilities using telemedicine to rely on the credentialing decisions made by the distant-site telemedicine entity,47 but require that they monitor and report the telemedicine provider's performance. Health care is increasingly specialized and fragmented;48 therefore, as negligent credentialing percolates through Kentucky

45 Frigo v. Silver Cross Hosp., 2007 Ill. App. LEXIS 818, at *60, 2007 WL 2141822 (Ill. App. Jul. 26, 2007) (citing Coleman v. Bessmer Carraway Methodist Med. Ctr., 589 So.2d 703, 706 (Ala. 1991)). 46 See, e.g., https://mhealthintelligence.com/news/telemedicine-remote-care-may-forestall-rural-hospital-closure. 47 https://www.telehealthresourcecenter.org/toolbox-module/credentialing-and-privileging. 48 Over half of all physician visits in the U.S. are with specialists. Ateev Mehrotra, et al., "Dropping the Baton: Specialty Referrals in the United States," 89 Milbank Q. 39, 40 (2011). In fact, from 1999 to 2009, the probability that a patient would be referred to a specialist effectively doubled, rising from 4.83 percent to 9.29 percent. Michael L. Barnett, M.D., et al., "Trends in Physician

28

courts, more and more specific circumstances will need to be addressed via health care facilities' policies outlining credentialing or privileging.

2. Re-credentialing and monitoring physicians.

Initially credentialing a physician and permitting them to join the hospital's medical staff is only the first step. A hospital must re-credential the physician on a timely basis (every two years is most common) and should monitor the physician during his time at the hospital to ensure adequate skill and patient safety. The following are some guidelines for performing these tasks:

a. Do not be in a rush. Hospitals should allow sufficient time

to obtain the necessary information to perform a thorough review.

b. Review and take seriously any evidence of poor

performance evaluations. c. It is acceptable to monitor a particular surgeon via

standard review process i.e. regular committee meetings. d. Perform retrospective evaluations; review medical records

of patients after physician in question has provided care to determine if care was appropriate. Also, it is worthwhile to maintain constant communication with personnel who are directly involved with the physician.

e. External review – send medical records to outside entity to

review the appropriateness of medical care offered by the physician. This is especially appealing to rural hospitals that have a limited number of physicians qualified to review certain procedures.

f. Hospitals should actively track patient outcomes for certain

procedures or physicians.

In the end, the decision to re-credential a physician is reviewed under the same standard as initial credentialing and should be afforded the same level of seriousness and thoroughness.

B. Bifurcation

The Kentucky Supreme Court explicitly acknowledged bifurcation was best practice. As a result, parties should be vigilant of the procedural concerns that may arise. It is well-settled that the Court operates with

Referrals in the U.S., 1999-2009," 172 Arch. Intern. Med. 163, 165 (2012). Roughly one in three nonelderly patients are referred to a specialist each year. Mehrotra, supra, at 40.

29

wide discretion during the voir dire process.49 The trial court may inform the potential jurors that a second phase may occur depending on their determination in the first phase.50 The parties may question the potential jurors about topics related to the second phase where it will then determine hospital liability and damages.51 In other words, the parties can conduct a full and complete voir dire concerning both phases of the trial.52 The same jury will hear both phases of the bifurcated trial in this matter. At bottom, therefore, the trial court is equipped with sufficient discretion to conduct voir dire appropriately and provide parties with the full ability to determine any potential bias toward their respective positions. Allocation of fault in a bifurcated proceeding can be uncomplicated and may proceed as usual. At the close of the first phase, the jury may determine the physician's liability, but not allocate fault. If necessary, the jury will proceed to the second phase where it can then determine liability and damages. Fault may be allocated at the end of the second phase, no different than the conclusion of a unitary trial in which a jury is asked to allocate fault and calculate damages. Plaintiff's claim that allocation of fault would necessarily be based on only half of the evidence is inaccurate. In fact, bifurcating liability and damages in this fashion is fairly common among bifurcated trials.53

49 Mu’min v. Virginia, 500 U.S. 415, 427 (1991) ("[O]ur own cases have stressed the wide discretion granted to the trial court in conducting voir dire in the area of pretrial publicity and in other areas of inquiry that might tend to show juror bias."). 50 See, e.g., Mason v. Mitchell, 95 F.Supp.2d 744, 767 (N.D. Ohio 2000) ("[A]t the beginning of voir dire, [t]he trial court explained that the first phase of the trial would determine Petitioner’s guilt or innocence, and that the second phase of the trial, if necessary, would determine the penalty."). 51 See Ashcroft v. Tad Resources Intern., 972 S.W.2d 502, 506 (Mo. App. 1998) ("[A]lthough the trial is to be bifurcated, the parties are only presented with one opportunity to question potential jurors. . . . To hold otherwise [than permitting questions regarding bifurcated portion] would prevent a party from exercising his right to ascertain any bias or prejudice of potential jurors against the [bifurcated portion]."). 52 See, e.g., Estate of Burton v. Trover, 2011 Ky. App. Unpub. LEXIS at *11 (Ky. App. June 10, 2011) ("Burton should have been permitted to conduct a full and complete voir dire initially concerning both phases of the trial, given that one jury was to hear all causes of action."), reversed on other grounds by Trover v. Estate of Burton, 423 S.W.3d 165 (Ky. 2014); see also 22 CRR–NY 208.35(c) ("During the voir dire conducted prior to the liability phase of the trial, if the damage phase of the trial is to be conducted before the same jury, counsel may question the prospective jurors with respect to the issue of damages in the same manner as if the trail were not bifurcated."). 53 See, e.g., Witherbee v. Honeywell, Inc., 151 F.R.D. 27, 29-30 (N.D.N.Y. 1993); In re Bendectin Litig., 857 F.2d 290 (6th Cir. 1988) ("[M]any courts have upheld cases bifurcated between liability and damages because the evidence pertinent to the two issues is wholly unrelated, and as a logical matter, liability must first be resolved before the question of damages." (citing C. Wright, A. Miller & F. Elliott, Federal Practice & Procedure, §2390 at 296-97 (1971 & Supp. 1987)).

30

Defense attorneys can (and should) make a strong argument that all allegations of direct hospital liability should be bifurcated because they depend on the physician's underlying negligence for proof of proximate causation. Without receiving negligent medical care, a patient cannot claim that the hospital breached its duty to provide acceptable medical care or competent staff.

C. Statute of Limitations

Courts that have recognized negligent credentialing have struggled with determining both the applicable statute of limitations and when the statute of limitations begins to run. It is well-known in Kentucky that any action against a hospital or physician for negligence or malpractice must be brought within one year after the cause of action accrues.54 And under the "discovery rule," a cause of action accrues "on the date of the discovery of the injury, or from the date it should, in the exercise of ordinary care and diligence, have been discovered."55 No doubt a negligent credentialing claim must be brought within one year of accrual, but when does the claim accrue? In Adams, the Kentucky Supreme Court made clear that negligent credentialing claims' time limits operate independently of the underlying medical malpractice: "This distinction is important because it underscores the fact that Jones's claim against Spring View did not necessarily accrue at the same time as her claim against Dr. Bailey. . . . This argument is flawed because it conflates the facts which might have given rise to Jones's claim against Dr. Bailey with those that would have given rise to her claim against Spring View."56 In other words, when a plaintiff has "actual or constructive knowledge of the injury which triggers the running of the statute of limitations" for her medical malpractice claim, she may not have knowledge of her negligent credentialing claim. Unfortunately, Adams provides no guidance other than to indicate that the discovery rule applies.57 Theoretically, a plaintiff could file a negligent credentialing claim, say, five years after discovering

54 KRS 413.140(1)(e). 55 Adams, 536 S.W.3d at 692 (citing Wiseman v. Alliant Hosp., Inc., 37 S.W.3d 709, 712 (Ky. 2000)). 56 Id. at 693 (emphasis added); see also Norgard v. Brush Wellman, Inc., 766 N.E.2d 977 (Ohio 2002) (acknowledging negligent credentialing and medical malpractice are distinct claims – therefore, "discovery of the injury and its immediate cause may have been sufficient to trigger the statute of limitations on the malpractice claim, they were not sufficient to trigger the statute of limitations on the negligent credentialing claim"). 57 See also Browning v. Burt, 613 N.E.2d 993 (Ohio 1993) (holding statute of limitations triggered when plaintiff "knows or should have discovered that he or she was injured as a result of the hospital’s negligent credentialing procedures or practices").

31

the injury; in other words, a negligent credentialing claim could work to revive an otherwise stale malpractice claim.58 Because the negligent credentialing claim is derivative, the plaintiff would still have to prove the underlying malpractice, but there would be no actionable malpractice claim.59 Or a negligent credentialing claim could be filed years after a medical malpractice claim. If such a scenario sounds incredible, it should not. In fact, in Frigo v. Silver Cross Hosp.,60 the Illinois Court of Appeals allowed a plaintiff to file a negligent credentialing claim five years after filing his complaint because the negligent credentialing claim related back to the original complaint. In the end, Adams and other negligent credentialing cases raise the question: what facts would raise suspicion of a possible negligent credentialing claim such that the statute of limitations would be triggered? After all, the credentialing process is intentionally secretive (supported by public policy); so, it would be difficult for a plaintiff to determine anything about credentialing problems.61

D. Expert Challenges

A negligent credentialing claim "involves a specialized standard of care," therefore requiring expert testimony "to establish liability because procedures ordinarily used by a hospital to evaluate staff privileges are not within the realm of a juror's ordinary experience."62 The necessary qualifications of such an expert are wide-ranging because trial courts are given such wide discretion in this context. But, suffice it to say that

58 On a side note, would such a late-filed negligent credentialing claim – clearly a "malpractice-related" claim under Kentucky’s MRP Act – have to go before a medical-review panel even though the malpractice claim would have already completed the panel process and be pending in circuit court? 59 In addition to forcing a physician through burdensome litigation over a years-old incident, tardy negligent credentialing claims may lead to hospitals seeking common-law indemnity from the physician because the physician was arguably the primary cause of the plaintiff’s injury. See Fireman’s Fund Ins. Co. v. Bennett, 635 S.W.2d 482, 485 (Ky. App. 1981). 60 2007 Ill. App. LEXIS 818, 2007 WL 2141822 (Ill. App. Jul. 26, 2007). Incidentally, Frigo also contains a detailed analysis of a negligent credentialing claim’s elements and necessary proof. 61 Remember, one of the cases involved in Adams involved a plaintiff who was told by her doctor that multiple patients had complications from her doctor and that was insufficient to raise questions about the doctor’s continued credentialing at the hospital. 62 Rose v. Garland Cmty. Hosp., 168 S.W.3d 352, 356 (Tex. App. 2005); see also Frigo v. Silver Cross Hosp., 2007 Ill. App. LEXIS 818, 2007 WL 2141822 (Ill. App. Jul. 26, 2007) ("Expert testimony as to the applicable standard of care and what may constitute a violation of that standard has also been held to be required in negligent credentialing.") (citing Welsh v. Bulger, 698 A.2d 581, 585 (Penn. 1997); Neff v. Johnson Mem. Hosp., 889 A.2d 921, 928-29 (Conn. App. 2006)).

32

individuals with experience in hospital administration or perhaps physicians with extensive experience participating on a credentialing committee would be likely choices. Negligent credentialing claims present fertile ground for challenging whether a designated "expert" is truly an expert, perhaps more so than traditional medical malpractice claims.

"Medical experts are not necessarily credentialing experts. In fact, a credentialing expert need not be a physician but may be a witness who is familiar with the standard of care for credentialing because of training and experience."63 In Columbia/JFK Med. Ctr., Ltd. v. Sangounchitte, the Florida Court of Appeals held that an expert who had a MBA in hospital and health care administration and former experience as a hospital COO, was qualified despite the fact that he had not worked in a hospital for 23 years, not consulted on credentialing in five years, and had no experience with hospital administration in Florida.64 The court focused on the fact that Florida hospitals were governed by the Joint Commission's standards, "as are hospitals all over the country;" so, it was not important the expert had no Florida experience.65 For defendants, it is important simply to demand that plaintiffs obtain and present expert testimony regarding the hospital's alleged breach of its duty to credential quality physicians. The Sangounchitte case notwithstanding, it is likewise important for both parties to understand the credentialing process and recognize that an expert at, say, Johns Hopkins in Baltimore, while impressive, may not be qualified on the standard of care for a rural Kentucky hospital. The "acting in the same or similar circumstances" component of the objective standard of care may prove important with negligent credentialing claims. Finally, as of the time of this writing, the constitutionality of medical-review panels is pending before the Kentucky Supreme Court. Under the MRP Act, after the parties submit their case to the medical-review panel, the panel will issue an opinion, which will then be reviewed for admissibility under KRE 702. The act does not, however, have any requirements regarding the relationship between the panel-members' experience and a plaintiff's actual allegations. In other words, a surgeon could be reviewing a lawsuit challenging care provided by a health care provider specializing in another area. Defendants may, therefore, have strong grounds on which to challenge the admissibility of a panel opinion on a hospital's direct liability, i.e. negligent credentialing, because the panel was unqualified to offer such an opinion.

63 Rose, 168 S.W.3d at 356. 64 977 So. 2d 639, 640-41 (Fla. App. 2008). 65 Id.

33

E. Causation

Causation is both an important defense tool and a key element for plaintiffs in negligent credentialing scenarios. Physician negligence is required. As the Supreme Court pointed out in Adams, "[i]f the plaintiff does not prevail in the malpractice action against the physician, a subsequent trial against the hospital is neither necessary nor warranted."66 For practitioners, the Supreme Court will likely never be as clear as it was in Adams. Going forward, hospital defense counsel must focus on the physician's medical care more than in the past; after all, a negligent credentialing claim "is illusory absent negligent medical treatment."67

F. Discovery/Evidentiary Issues

1. Discovery will likely expand, making medical malpractice actions

even more expensive and time-consuming.

Negligent credentialing claims will broaden permissible discovery and create various admissibility issues. As mentioned previously, bifurcation is necessary because a physician's past will now be laid bare before the jury in an attempt to prove that a health care facility was negligent in permitting the physician to be a part of its medical staff. It would be virtually impossible for a physician to receive a fair trial if that evidence were permitted in a single proceeding alongside the physician's medical care that allegedly caused a plaintiff's injury. Discovery in medical malpractice cases has become burdensome and expensive for all parties, but it will only expand with the introduction of negligent credentialing. Where hospitals could

66 Adams, 536 S.W.3d at 697. 67 Rose, 168 S.W.3d at 359; see also Schelling v. Humphrey, 916 N.E.2d 1029, 1037 (Ohio 2009) ("If the fact-finder determines that negligence of the doctor was not the proximate cause of the plaintiff’s injury, then a hospital’s grant of staff privileges to a doctor is not the cause of the plaintiff’s injury."); Ladner v. Northside Hosp., Inc., 723 S.E.2d 450, 455 (Ga. App. 2012) (holding that even if the hospital was negligent in credentialing the doctor, where there was no evidence of medical negligence, the plaintiff cannot establish a causal connection between the credentialing process and the plaintiff’s postoperative complications and death); Martinez v. Park, 959 N.E.2d 259, 271 (Ind. App. 2011) ("[T]o succeed on a negligent credentialing claim, the plaintiff must show that the physician to whom the hospital allegedly negligently extended privileges breached the applicable standard of care in treating the plaintiff and proximately caused her injuries."); Trichel v. Caire, 427 So. 2d 1227, 1233 (La. App. 1983) (holding that where there was no negligence on the part of the doctor, "the hospital’s granting of such privileges to [the doctor] did not cause [the plaintiff’s] complications"); Oehler v. Humana Inc., 775 P.2d 1271, 1272 (Nev. 1989) (holding that plaintiff’s complaint against the hospital stated a cause of action for negligent supervision of a nonemployee physician where it alleged that the physician provided medical care with the hospital’s knowledge, aid and assistance, both the physician’s care and the hospital’s supervision were negligent, and such negligence proximately caused the plaintiff’s injuries); Hiroms v. Scheffey, 76 S.W.3d 486, 489 (Tex. App. 2002) ("If the physician is not negligent, there is no negligent credentialing claim against the hospital.")

34

previously argue that policies, bylaws, credentialing files, etc. were not relevant, such challenges become much more difficult in the face of negligent credentialing. The result is that medical malpractice actions will become even more expensive and time consuming than they already were. In addition, discovery under the MRP Act's condensed timelines will be difficult because of this expanded scope. Practically speaking, attorneys can challenge such expanded discovery as unduly burdensome or not proportional to the needs of the case (if in federal court), but those arguments are unlikely to be consistently successful.

2. Kentucky may revisit a peer-review privilege, but such a privilege

may be a double-edged sword in the negligent credentialing context.

It is imperative that peer review discussions be candid and the participants believe them to be secret. Kentucky does have a peer-review privilege statute,68 but it has been interpreted as constitutionally inapplicable to medical malpractice suits.69 Instead, the statutory privilege only applies in suits against peer-review entities.70 Kentucky had until very recently failed to pass a statute clearly protecting peer-review discussions, including credentialing matters, unlike other states (literally all of them). In the 2018 Regular Session, the General Assembly passed House Bill 4, which amended KRS 311.377(2) to read as follows (additions in italics):

At all times in performing a designated professional review function, the proceedings, records, opinions, conclusions, and recommendations of any committee, board, commission, medical staff, professional standards review organization, or other entity, as referred to in subsection (1) of this section shall be confidential and privileged and shall not be subject to discovery, subpoena, or introduction into evidence, in any civil action in any court, including but not limited to medical malpractice actions, actions arising out of review of credentials or retrospective review and evaluation as referred to in subsection (1) of this section, and actions by an applicant for or grantee of staff

68 KRS 311.377. 69 Sisters of Charity Health Systems, Inc. v. Raikes, 984 S.W.2d 464, 469-70 (Ky. 1998); McGuffey v. Hall, 557 S.W.2d 401 (Ky. 1977). 70 Raikes, 984 S.W.2d at 470.

35

privileges as referred to in subsection (1) of this section . . . .71

Governor Bevin signed the bill into law on March 9, but it does not take effect until July 15, 2018. This is a sizable shift in Kentucky law because, as mentioned above, Kentucky's peer-review privilege had previously been interpreted as unconstitutional when applied to medical malpractice actions. Now KRS 311.377 explicitly states it applies to medical malpractice actions, including those arising out of credentialing decisions. Challenges to this law should be expected because the reasoning in Raikes applies regardless of what language the General Assembly uses: potential plaintiffs' "right to bring suit for their underlying medical malpractice claims is protected by Section 14 of the Kentucky Constitution . . . [and] significant degradation of [discovery] rights could deny litigants, in an action protected by Section 14, due course of law as provided by that section."72 What is clear is that courts will take a narrow approach to the privilege's scope. An absolute privilege for peer review material would, of course, be a significant litigation tool for health care defendants; but, as Raikes indicates, courts will weigh that potential advantage against plaintiffs' constitutional rights. And the jural rights doctrine underlies this analysis; after all, Adams emphasized that negligent credentialing was based on general negligence principles, within the scope of jural rights.73 In addition, the federal government enacted the Health Care Quality Improvement Act (HCQIA) as a peer-review privilege.74 The HCQIA requires hospitals and its professional review committee meet certain standards when making credentialing decisions. A hospital is presumed to have met those standards unless the plaintiff rebuts the presumption by a preponderance of the evidence.75 An argument can be made, therefore, that the HCQIA preempts a negligent credentialing claim as long as the hospital meets all the standards set forth in the Act: if "a professional review body meets all the standards specified in [the Act] . . . the professional review body . . . shall not be liable in damages under any law of the United States or of any State with respect to the action."76 Courts in other states have rejected this

71 HB 4 (2018) (available at http://www.lrc.ky.gov/record/18RS/HB4.htm). 72 Raikes, 984 S.W.3d at 469. 73 See Ky. Const. §§14, 54, and 241; Perkins v. Northeastern Log Homes, 808 S.W.2d 809, 815-17 (Ky. 1991). 74 42 U.S.C §11101. 75 42 U.S.C. §11112(a)(4). 76 42 U.S.C. §11111(a)(1).

36

argument, but it has yet to be reviewed by Kentucky courts. It was argued in Adams briefing, but the Court did not reach the argument. Beyond the privilege protection afforded to peer-review documents, the HCQIA may provide grounds for summary judgment.77 In any event, an absolute peer-review privilege and the developments in this area are litigation tools that defense attorneys should be keenly aware of and readily deploy. A dose of caution is, however, appropriate: an absolute privilege in the credentialing context may, however, be a double-edged sword. In order to defend itself fully, the hospital may be forced to waive any applicable privilege. Some courts have refused to recognize a waiver in such circumstances, viewing the confidentiality of the peer review process as more important than an individual hospital's attempt to defend against allegations of negligence.78 But the consequence of such a ruling is somewhat odd. A plaintiff cannot obtain access to peer-review documents, but, at the same time, a hospital which may have had a justifiable reason for credentialing a physician despite their perhaps less-than-stellar background cannot use peer-review evidence to defend itself. At bottom, the scope and applicability of any privilege in the credentialing context are developments to which attorneys should pay close attention.

77 See Kauntz v. HCA-Healthone, LLC, 174 P.3d 813, 818 (Colo. Ct. App. 2007). 78 See Ayash v. Dana-Farber Cancer Inst., 822 N.E.2d 667, 692 n.28 (Mass. 2005). ("In our view, applying waiver principles to peer review communications would significantly undermine the effectiveness of the statute.").

37

38

ATTACHMENTS

Form MRP-028 June 2017

CABINET FOR HEALTH AND FAMILY SERVICES

Medical Review Panel Branch 275 East Main Street, 5W-A(MRP)

Frankfort, KY 40621

Parties' Agreement to Waive the Medical Review Panel Process We, the undersigned parties, agree that the claim described in the attached complaint being filed with the applicable court is not to be presented to a medical review panel. This waiver indicates our agreement as authorized by KRS 216C.030. A copy of this agreement will be filed with the Cabinet for Health and Family Services, Medical Review Panel Branch, 275 East Main Street, 5W-A(MRP), Frankfort, KY 40621. A copy will also be attached to the complaint filed with the court in which the action is commenced.

(Immediately below the signature line, please type the name of the person signing and that person's relationship to this claim, including if that person is the claimant, defendant, or counsel for the claimant or defendant.)

Date

Date

Date

Date

39

40

Form MRP-027 June 2017

CABINET FOR HEALTH AND FAMILY SERVICES Medical Review Panel Branch

275 East Main Street, 5W-A(MRP) Frankfort, KY 40621

Notification of Settlement or Withdrawal

We, the undersigned parties, have agreed to settle or withdraw the complaint pending before a medical review panel, filed by _________________________ (Claimant) against ____________________ (Defendant). The assigned case number is MRP____-__________.

By signing this form, we affirm that settlement or withdrawal was reached prior to receipt of the medical review panel's opinion pursuant to KRS 216C.180 and 216C.230. We understand that this settlement or withdrawal will withdraw the complaint and conclude the medical review panel assigned to this complaint, that the applicable statute of limitations will no longer be tolled pursuant to KRS 216C.040, and that payment of the medical review panel's fees and expenses will be made as agreed to and stated on this form or, if the payment agreement is not stated on this form, as established in 900 KAR 11:010, Section 10(4)(b)2. On the following lines, please provide a brief description of the agreement between the parties regarding payment of the medical review panel's fees and expenses.

Filing Instructions: If the settlement or withdrawal occurs before the chairperson is selected, the claimant

and defendant shall file this form with the Cabinet for Health and Family Services, Medical Review Panel Branch, 275 East Main Street, 5W-A(MRP), Frankfort, KY 40621. (There will not be any additional fees or expenses due if settlement or withdrawal occurs before the chairperson is selected.)

If the settlement or withdrawal occurs after the chairperson is selected and before the

opinion is issued by the medical review panel, the claimant and defendant shall file this form with the chairperson. (The fees and expenses are governed by KRS 216C.220.)

41

Form MRP-027 June 2017 (Immediately below the signature line, please type the name of the person signing and that person's relationship to this claim, including if that person is the claimant, defendant, or counsel for the claimant or defendant.)

Date

Date

Date

Date

42

Form MRP-002 June 2017

COMMONWEALTH OF KENTUCKY CABINET FOR HEALTH AND FAMILY SERVICES

MEDICAL REVIEW PANEL BRANCH

Proposed Complaint

Part I. Party Identification. Claimant’s Contact Information Claimant’s Attorney, if

retained

Name:

Address:

Phone:

Email: If Additional Claimant: Second Claimant Second Claimant’s Attorney,

if retained

Name:

Address:

Phone:

Email:

TO BE COMPLETED BY MRP ADMINISTRATOR: Case No. MRP- -

43

Form MRP-002 June 2017

Defendant's Contact Information First Defendant Second Defendant

Name:

Address:

Phone: Email, if Known:

Third Defendant Fourth Defendant

Name:

Address:

Phone: Email, if Known:

If additional parties, please identify them on a separate piece of paper and attach. Part II. Identification of the Claimant:

The claimant is the individual who received or should have received health care from a health care provider, in accordance with the definition of "patient" established by KRS 216C.010(7). The patient's date of birth is .

The claimant is a person pursuing a derivative claim, in accordance with

the definition of "patient" established by KRS 216C.010(7). If this line is checked, please identify the individual who received or should have received health care from a health care provider, including that person's name and date of birth, and the reason that the claimant is pursuing this claim on that person's behalf:

44

Form MRP-002 June 2017

Part III. Complaint Description. Please provide a description of the malpractice and malpractice-related claims against each health care provider named as a defendant. This description shall include the nature of the patient's injury, the appropriate standard of care with which each defendant was expected to comply, the actions each defendant took or failed to take that caused the defendant's failure to comply with the appropriate standard of care, and how this failure caused or contributed to the claimant's injury. (Please use additional sheets of paper if necessary.)

Part IV. Date of the Alleged Occurrence of Malpractice. The alleged occurrence of malpractice occurred on the following date or during the following range of dates: WHEREFORE, the Claimant or Claimants respectfully request that a Medical Review Panel review this matter in accordance with KRS Chapter 216C and 900 KAR 11:010 and render its opinion on Form MRP-011, Panel's Final Report and Opinion, as expeditiously as possible, within the nine (9) month timeframe established by KRS 216C.020(1)(b) or 216C.020(2)(b). Respectfully submitted,

Signature of Claimant or Claimant's Counsel Date

Enclose the filing fee of $125 plus $12 for each named defendant, by check or money order, payable to Kentucky State Treasurer, as required by KRS 216C.040(3) and 900 KAR 11:010, Section 2(2).

45

46

Form MRP-007 June 2017

CABINET FOR HEALTH AND FAMILY SERVICES Medical Review Panel Branch

275 East Main Street, 5W-A(MRP) Frankfort, KY 40621

Cabinet Letter to Party re Strike of Chairperson

{Date}

Re: MRP Case Number - -

Dear {Attorney's Name}:

The Cabinet hereby notifies the {Claimant/Defendant} that the {Defendant/Claimant}, by counsel, strikes the name of {name}. You now have five (5) days to notify the Cabinet of your strike. You may do so either by an e-mail sent to mrp@ky.gov or by mail sent to Cabinet for Health and Family Services, Medical Review Panel Branch, 275 East Main Street, 5W-A(MRP), Frankfort, KY 40621.

Please be sure to reference the MRP Case Number in your email or correspondence.

Sincerely,

{name}

47

48

Form MRP-001 June 2017

CABINET FOR HEALTH AND FAMILY SERVICES Medical Review Panel Branch

275 East Main Street, 5W-A(MRP) Frankfort, KY 40621

Application to Serve as Chairperson of a Medical Review Panel In accordance with KRS 216C.070(2) and (8), I am applying to serve as the chairperson of a medical review panel and would like my name placed on the list of attorneys maintained by the Cabinet for Health and Family Services, Medical Review Panel Branch, pursuant to KRS 216C.070(8). I have reviewed KRS Chapter 216C and 900 KAR 11:010 and am aware of the duties and requirements of this position. By signing this form, I certify that: (1) I am licensed to practice law in the Commonwealth of Kentucky; and (2) My practice is located in the following Kentucky Supreme Court district:__________. I understand that my name shall remain on the list of attorneys required by KRS 216C.070(8) until I notify the cabinet that my application is withdrawn or until the cabinet receives notification that I am no longer licensed to practice law in Kentucky. My professional contact information is as follows: Name KBA License Number

Street Address of Practice City, State, Zip

Email Address Preferred Telephone Number

Signature Date

49

50

Form MRP-009 June 2017

CABINET FOR HEALTH AND FAMILY SERVICES Medical Review Panel Branch

275 East Main Street, 5W-A(MRP) Frankfort, KY 40621

Cabinet Letter to Chairperson re Selection to Serve

{Date}

Re: MRP Case Number - -

Dear {Attorney's Name}:

This letter is to inform you that you have been selected to serve as chairperson of the Medical Review Panel for the above cause.

KRS 216C.070(7) requires that you acknowledge this appointment within fifteen (15) days or serve an affidavit upon the Cabinet for Health and Family Services pursuant to KRS 216C.070(7)(b) and 216C.120(2) that sets out the facts showing that service would constitute an unreasonable burden or undue hardship. The acknowledgement or affidavit may be emailed to mrp@ky.gov, with the assigned MRP Case Number included in both the email's subject line and body. Alternatively, the acknowledgement or affidavit may be mailed to Cabinet for Health and Family Services, Medical Review Panel Branch, 275 East Main Street, 5W-A(MRP), Frankfort, KY 40621.

If you have questions about the panel procedure, please contact {name/position} at {phone number}. Medical review panels are governed by KRS Chapter 216C and 900 KAR 11:010. An inquiry about the medical review panel process may be submitted via e-mail to mrp@ky.gov.

Please note that sample letters are available at http://mrp.ky.gov for your use in communicating with the parties as required by KRS Chapter 216C and 900 KAR 11:010.

Sincerely,

{name}

cc: {Claimant}

{Defendant}

51

52

Form MRP-012 June 2017

Chairperson Letter to Parties re Panel Striking Lists {Date}

Re: MRP Case Number - -

Dear Parties:

The following is the striking panel of {specialty} for the first list of potential panelists:

1. {name, address}

2. {name, address}

3. {name, address}

The following is the striking panel of {specialty} for the second list of potential panelists:

1. {name, address}

2. {name, address}

3. {name, address}

In accordance with KRS 216C.090(2), the claimant shall please proceed to strike one (1) name from each list within {number} days of this correspondence. The defendant shall then strike one name from each list within {number} days of notification of the claimant's strikes. KRS 216C.090(3) establishes the process if a party does not strike a name within the time provided.

As provided by KRS 216C.090(4), if there are multiple claimants or defendants, only one (1) panel member shall be selected by the claimants, collectively, and one (1) by the defendants, collectively.

Sincerely,

{name}

53

54

Form MRP-014 June 2017

Chairperson Letter to Panel Members re Selection to Serve {Date}

Re: MRP Case Number - -

Dear {Providers' Names}:

You have been selected as the initial members of the Medical Review Panel that is being formed to review the enclosed Proposed Complaint pursuant to KRS Chapter 216C and 900 KAR 11:010. I have been chosen by the parties to be the Panel Chairperson.

Under KRS 216C.090(2) and (3), it is your responsibility as panel members to jointly select a health care provider who is from the profession and specialty field, if any, of one (1) or more of the defendants, to serve as the third panel member. This selection must be made by {date}. You are informed that all health care providers in the Commonwealth of Kentucky, whether in the teaching profession or otherwise, who hold a valid, active license to practice in their profession, shall be available for selection as members of the medical review panel, as provided by KRS 216C.080. Upon your selection of a health care provider to serve as the third panel member, one of you should notify me of the nominee's name, area of practice, and address. Once the third member has been selected, I will notify the parties. If there are no objections, the panel will be formed and the matter will proceed. If there is an objection, it may be necessary to select another health care provider. Therefore, it might save time for you to come up with the names of three or four persons to whom you would agree, and to indicate an order of preference.

Due to a potential conflict or earlier consideration by the parties in this case, the following health care providers should not be nominated for service on this particular panel: {names}.

For informational purposes only, I am enclosing a copy of the Proposed Complaint filed in this case. Once the panel selection has been completed, the panel will consider evidence submitted by the parties concerning this matter. At the appropriate time, the panel may convene at a time and place agreeable to all of the members to review the evidence and discuss the panel's decision.

KRS 216C.220 provides that each panel member is to be paid a statutory stipend of up to $350.00, plus reasonable travel expenses. To the extent the parties need your involvement as a witness after the opinion is rendered, KRS 216C.200(2) requires the party calling you as a witness to provide reasonable compensation for your appearance. Additionally, KRS 216C.210 provides absolute immunity for civil liability for all

55

Form MRP-014 June 2017 communications, findings, opinions, and conclusions made in the course and scope of duties prescribed for you as a member of this medical review panel.

If either of you have any type of personal or business relationship with any of the parties or their attorneys, you should disclose that to me at this time as required by KRS 216C.100(1). For your information, the Claimant is represented by {name, office}, and the Defendant is represented by {name, office}. Additionally, if you are requesting relief from serving on this medical review panel for good cause, KRS 216C.120(3) requires that you serve an affidavit upon me as chairperson that sets out the facts showing that service would constitute an unreasonable burden or undue hardship. If applicable, please provide that affidavit as soon as practical.

From this point forward, you should also not discuss the case with any of the parties, their agents, attorneys, or insurance representatives, in order to comply with KRS 216C.170(1). Please advise as to the best way to contact you or if there is any change in address information before the panel convenes. Your assistance and cooperation in this matter will be greatly appreciated. Please let me know as soon as you have selected a third panel member or if you have any questions. Sincerely, {name}

56

Form MRP-015 June 2017

Chairperson Letter to Third Panel Member Re Selection to Serve {Date}

Re: MRP Case Number - -

Dear {Provider's Name}:

You have been selected to serve as a member of a medical review panel in the above malpractice action. I am the non-voting attorney panel chairperson. The two other panel members are {name and profession} and {name and profession}.

Enclosed is a copy of the Proposed Complaint filed in this case. You are informed that all health care providers in the Commonwealth of Kentucky, whether in the teaching profession or otherwise, who hold a valid, active license to practice in their profession, shall be available for selection as members of the medical review panel, as provided by KRS 216C.080. KRS 216C.220 provides that each panel member is to be paid a statutory stipend of up to $350.00, plus reasonable travel expenses. To the extent the parties need your involvement as a witness after the opinion is rendered, KRS 216C.200(2) requires the party calling you as a witness to provide reasonable compensation for your appearance. Additionally, KRS 216C.210 provides absolute immunity for civil liability for all communications, findings, opinions, and conclusions made in the course and scope of duties prescribed for you as a member of this medical review panel.

If you have any type of personal or business relationship with any of the parties or their attorneys, you should disclose that to me at this time as required by KRS 216C.100(1). For your information, the Claimant is represented by {name, office} and the Defendant is represented by {name, office}. Additionally, if you are requesting relief from serving on this medical review panel for good cause, KRS 216C.120(3) requires that you serve an affidavit upon me as chairperson that sets out the facts showing that service would constitute an unreasonable burden or undue hardship.

From this point forward, you should also not discuss the case with any of the parties, their agents, attorneys, or insurance representatives, in order to comply with KRS 216C.170(1).

Please advise as to the best way to contact you or if there is any change in address information before the panel convenes. Your assistance and cooperation in this matter will be greatly appreciated. Please let me know if you have any questions.

Sincerely,

{name}

57

58

Form MRP-020 June 2017

CABINET FOR HEALTH AND FAMILY SERVICES Medical Review Panel Branch

275 East Main Street, 5W-A(MRP) Frankfort, KY 40621

ADMINISTRATIVE SUBPOENA

MRP Case Number -____ -____ The Cabinet for Health and Family Services, Medical Review Panel Branch, Chairperson __________________________ to: Name: __________________________________________________________ Address: __________________________________________________________

__________________________________________________________ __________________________________________________________

You are commanded to appear before: _______________________________________ You are to appear at: _____________________________________________________ _____________________________________________________________________ On the ____ day of, ___________________, 20_____ At ________ a.m. / p.m., Eastern / Central. You are commanded to produce and permit inspection and copying of the following documents or objects (or to permit inspection of premises): ______________________ ______________________________________________________________________ on the ______ day of _______________, 20_____ at ___________________________ at _____ a.m. / p.m., Eastern / Central at the following address ______________________________________________________________________ ______________________________________________________________________

Signature of Issuing Panel Chairperson Date

Signature of Requestor Date

59

Form MRP-020 June 2017

PROOF OF SERVICE This subpoena was served by delivery of a true copy to: this day of , 20 by ,

60

Form MRP-018 June 2017

Chairperson Letter to Panel re Evidence {Date} Re: MRP Case Number - - Dear Panel Members: The following materials are enclosed for your review:

1. Submission of Evidence on behalf of the Claimant; and 2. Submission of Evidence on behalf of the Defendant.

These submissions represent the written evidence tendered by the parties. You should carefully review each submission. After you have reviewed the submissions, we will need to convene the panel for purpose of discussing the evidence and arriving at a decision. The panel's decision is due within thirty (30) days of receipt of the defendant's evidence, in accordance with KRS 216C.180(2), which makes the deadline for reaching agreement _______________. I would appreciate your letting me know your earliest availability in order to convene this panel. Please provide three or four dates when you could commit to meeting. Additionally, please find enclosed for completion and return:

1. Fom1 MRP-021, Oath for Panel Members; 2. The W-9 required by the Internal Revenue Service; and 3. Form MRP-024, Time and Expense Report for Panel Members.

The Oath for Panel Members shall be returned to me via email at {insert email address} or mail at {insert mailing address} at your earliest convenience. The Form MRP-009 is due when the panel's report is submitted or within three (3) business days of notification of a settlement. It is critical that we be able to contact each other in the most efficient manner. My e-mail address is {email}. My office number is {phone number}. My cell phone number is {cell number}. Please advise as to the preferable way to contact you. Please do not hesitate to call if you have any questions. Thank you for your willingness to serve on this panel. Sincerely, {name}

61

62

Form MRP-022 June 2017

CABINET FOR HEALTH AND FAMILY SERVICES Medical Review Panel Branch

275 East Main Street, 5W-A(MRP) Frankfort, KY 40621

Panel Member's Opinion

MRP Case Number: MRP -____ - _____ In accordance with KRS 216C.180, Medical Review Panel Member: ________________ submits this opinion as to Defendant: _______________________________________ (Check ONE box)

The evidence supports the conclusion that the specifically identified defendant failed to comply with the appropriate standard of care as charged in the complaint, and the conduct was a substantial factor in producing a negative outcome for the patient.

The evidence supports the conclusion that the specifically identified

defendant failed to comply with the appropriate standard of care as charged in the complaint, but the conduct was not a substantial factor in producing a negative outcome for the patient.

The evidence does not support the conclusion that the specifically

identified defendant failed to meet the applicable standard of care as charged in the complaint.

By signing below, I certify I was a member of the panel and the above opinion reflects my final opinion. Signature of Panel Member Date

One copy of this form shall be completed by each panel member for each defendant. The completed forms shall be submitted to the panel chairperson.

63

64

Form MRP-023 June 2017

CABINET FOR HEALTH AND FAMILY SERVICES Medical Review Panel Branch

275 East Main Street, 5W-A(MRP) Frankfort, KY 40621

Chairperson's Report of Panel's Final Opinion

MRP Case Number: MRP -____-____ In accordance with KRS 216C.180, the Medical Review Panel created to consider the above-styled case has reached its opinion, in accordance with KRS 216C.180, and submits this report. The signature of the chairperson on this form concludes the medical review panel for MRP Case Number MRP -____-______ as to Defendant _______________________. The panel's majority decision as to Defendant _______________________________ is: (Check ONE box)

The evidence supports the conclusion that the specifically identified defendant failed to comply with the appropriate standard of care as charged in the complaint and the conduct was a substantial factor in producing a negative outcome for the patient.

The evidence supports the conclusion that the specifically identified

defendant failed to comply with the appropriate standard of care as charged in the complaint, but the conduct was not a substantial factor in producing a negative outcome for the patient.

The evidence does not support the conclusion that the specifically

identified defendant failed to meet the applicable standard of care as charged in the complaint.

The time and expense reports of the chairperson and panel members are attached to this form.

Signature of Chairperson Date

The chairperson shall provide a copy of this form, the supporting Form MRP-022 submitted by each panel member, and the time and expense reports to each party, to each medical review panel member, and to the Cabinet for Health and Family Services, Medical Review Panel Branch, as required by KRS 216C.230.

65

66