The 2018 Winter Olympics in Pyeongchang, Korea are one year away. But, in Kentucky we should start practicing our curling now.
The Olympic sport of curling is an old Scottish game that dates to the 16th century. The game has been described as a combination of bowling and shuffleboard on ice. In curling, one member of the team bowls a 42-pound polished granite stone towards a target of four concentric circles called the "House". As the player releases the stone, there is a slight twist of the wrist that puts a spin on the stone and a curl to the path it will follow - hence the name "curling." As the stone moves across the ice towards the "House," other members of the team use special brooms to sweep the surface of the ice in front of the moving stone. Sweeping creates friction, melting the ice and forming a thin layer of water that allows the stone to maintain speed and change direction. The goal of the game is to get your stone into the House.
The Kentucky legislative session is about to begin and it is time to get out our brooms. The elections this past fall have defined our House. It is now 64 Republicans deep and 36 Democrats wide. The stone that the Kentucky Medical Association is about to bowl is a beauty: it is called "Tort Reform." Prior to the 2016 elections the House was controlled by the Democrats, and it proved impossible to get the tort stone positioned in the House.
When one hears the term "Tort Reform," medical malpractice reform comes to the physician's mind. But "Tort Law" involves much more than medical malpractice. Tort is a civil wrongdoing, by intent or negligence, that unfairly causes someone harm. While it may be appropriate to compensate the harmed, there are many things about the tort laws in Kentucky that adversely affect the business and health care environments, to the detriment of our citizens. States have come to be known as business-friendly or unfriendly based in part on their tort laws. A friendly state gets more businesses, jobs and physicians, creating a better quality of life and better access to health care. Kentucky is not known to be a friendly state in these matters.
Changing the tort laws in Kentucky will require a constitutional amendment.
Over half of the states in our country have enacted tort reform, many changing their constitutions to do so. Two of our neighbors, Indiana and Tennessee, have done so and now are more attractive locations for businesses and doctors. A major component of any meaningful tort reform is "capping" non-economic damages. And there are other innovative reforms that could improve the health care delivery climate in our state. Specially designed health courts could provide a fair and expeditious system for resolving medical liability claims using qualified experts as consultants. Liability safe-harbors have been proposed by the AMA for physicians who practice evidence-based medicine. And there are others.
The curl put on our stone must have our patients' interest foremost in mind. Our anticipated opponents, the trial lawyers, will roll stones to force our stone out of the House. They will try to "brush us up" as greedy doctors and hospitals who want to limit fair compensation to the injured. Our curl should be that there are unintended consequences of Kentucky's tort law that adversely affect our citizens: Doctors practice defensive medicine, ordering more tests and driving up the cost of health care in a state struggling to provide health care to its citizens; expensive malpractice insurance premiums, especially for obstetrics and surgery, limit the number of physicians in these disciplines and creates problems with access to care, especially in rural areas.
Fear of litigation may lead physicians and hospitals to avoid disclosure of near-miss safety events and thereby miss opportunities to improve health care outcomes; and others.
In the Olympic games the length of the curling court, known as a sheet, is 145 feet and the game typically takes about two hours to play. The game we will be playing in Kentucky will take longer.
Changes to the state's constitution can only be made during even numbered years because the change needs to be placed on the ballot for our citizens to vote. The next opportunity is November 2018. However, we need to get our stone in motion now because there is a lot of sweeping to do. Our citizens, senators, representatives and governor need to be educated and convinced that reform is needed.
The captain of the curling team is called the "skip." Our skip is the KMA. The KMA is providing information so we can be consistent with our message and sweeping strategy. We will all need to use our brooms if this is to be successful. If you are not yet a member of GLMS and KMA, now is a good time to become one. It is important that our legislators and governor know that we are all on the team when it comes to tort reform. Educating the public will require an expensive media campaign - now is the time to give to the Kentucky Physicians Political Action Committee. Now is the time to get to know your representative and senator. Happy curling!