Eliminating Your Right to Jury Trial for Medical Malpractice

Published on Jun 22, 2017 at 6:53 pm in Medical Malpractice.

Imagine if you will a situation that happens every day in this country.  You or a loved one are admitted to the hospital for surgery.  Not necessarily a complex or complicated surgery that requires extensive recovery time, but even an outpatient procedure like an appendectomy.  The anesthesiologist has you count backwards from 10 and the next thing you know you’re waking up in a recovery room and soon after being escorted to the car to head home.  But, as your anesthesia wears off and the pain medication starts to fade you notice a sharp pain in your stomach.  Feeling around the painful area you can feel that there seems to be something there that shouldn’t be. 

In fact, upon inspection, you find that the surgeon has left a pair of scissors inside your stomach and sewed you up with the sharp, pointy, metal object pressing against other delicate internal organs.  Suddenly you realize you are in a dangerous, life threatening situation. The wrong movement, a small bump to the stomach, or even the loving embrace of your child or spouse could cause the scissors left inside you to cut through your intestines, gall bladder, or any other organ and potentially kill you.  Sadly, while this scenario may seem outrageous, it literally happens every single day in this country.

In 1999, the Institute of Medicine published the famous “To Err Is Human” report, which dropped a bombshell on the medical community by reporting that up to 98,000 people a year die because of mistakes in hospitals.  More recently, a study published in the Journal of Patient Safety that looked at data from 2008 to 2011 found that between 210,000 and 440,000 patients each year who go to the hospital for care suffer some type of preventable harm that contributes to their death.  That means medical errors are the third-leading cause of death in America, just behind heart disease and cancer.  Ladies and Gentlemen, you have higher statistical probability of dying any time you go to the emergency room, for any reason, as you do losing your luggage when you fly on a commercial airline.

Because of these mind-blowing numbers, it would stand to reason that our lawmakers would be doing all they can to curb this threat to their constituents and improve the system.  Unfortunately, the Kentucky General Assembly and Governor Matt Bevin have decided to instead protect the hospitals, nursing homes, and doctors contributing to this epidemic by passing legislation that will prevent people from suing the medical providers who have hurt, maimed, and killed patients.  Simply put: while no one was paying attention, the Kentucky General Assembly and Governor Matt Bevin have eviscerated your 7th Amendment rights.

The 7th Amendment to the United States Constitution is part of the bedrock of the United States legal system.  In short, it states that in law suits where the amount in controversy exceeds $20, a person is guaranteed a right to have a trial by jury.  Such an amendment is essential to protecting not only the liberty, but the very lives of those who have been hurt through no fault of their own.  In Kentucky, that protection has now been all but eradicated.

In 2017, new Kentucky legislation was passed mandating that no medical malpractice lawsuit can be filed against a health care provider (hospitals, nursing homes, doctors, etc.)  unless the injured patient files a proposed complaint with a medical review panel and said panel issues an opinion as to the merits of the complaint.  These review panels will begin on June 29th and what this means for you is that no matter how egregious the injury perpetrated on you or your loved ones by a medical professional, you will not be able to have the wrongdoer compensate you for the costs of correcting the mistake they made, the costs of caring for someone left unable to care for themselves because of the mistake they made, or even to recover for the wrongful death caused by the mistake they made. 

In short, you will be forced to convince a panel of the very people who injured you or your loved one that they should allow you to file a complaint against them.  As anyone can tell you, when given the option, people will find any reason or excuse as to why they should not face consequences for the actions.

I don’t write this to bash doctors, hospitals, or nursing homes.  My father is a doctor and I have great respect for the medical community.  The fact is, most doctors do their jobs diligently and provide a necessary, high quality service to their patients and the community at large.  But as we all know, there are people in every field that fail to meet the standards required.  It is those doctors, hospitals, and nursing homes that fail to reach the standards expected of medical providers that we must protect the innocent from.  Unfortunately, Kentucky’s new legislation will cut off access to the courts for those who have been wronged and will simply allow medical negligence to go unchecked and unaccounted for.  Considering medical negligence is the third leading cause of death in the United States, I for one find that terrifying.


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