Judicial Advocacy

Top Kentucky court strikes down law on medical review panels

Tanya Albert Henry , Contributing News Writer

Kentucky physicians will continue to face meritless lawsuits thanks to a recent commonwealth high court ruling.

The Supreme Court of Kentucky has struck down a 2017 state law that created a medical review panel, a group of experts who were to evaluate medical liability claims to ensure they had merit before a plaintiff filed a lawsuit against a health care provider.

The Litigation Center of the American Medical Association and State Medical Societies and the Kentucky Medical Association (KMA) filed an amicus brief that urged the Kentucky Supreme Court to keep the law intact after a patient seeking to file a claim challenged the law shortly after it was passed. The Litigation Center also helped offset the expenses the KMA incurred in the trial court.

KMA leaders said they were “extremely disappointed” in the ruling in Commonwealth of Kentucky v. Claycomb.

“Kentucky now remains one of the few states in the country with no meaningful tort reform, including medical liability reform, making our system more susceptible to higher costs and frivolous lawsuits,” the KMA said in a statement after the ruling.

Implementation of medical review panels dates back to 1975, when Indiana began using them to weed out frivolous lawsuits before physicians and the health care system had to spend money to defend meritless claims. More than a dozen states now have laws that require some form of a medical review panel that must give an OK before a medical liability lawsuit is filed, according to the National Conference of State Legislatures.

Seeing the need for tort reform, KMA leaders were among those who worked with legislative leaders and legal experts to help pass a law that was fair and could survive a constitutional challenge.

“Despite this work, the court has chosen to uphold the status quo that discourages physician recruitment, inhibits access to quality health care and increases patient costs, while also ensuring that the litigation process for those who have justifiable claims will remain long and complicated,” KMA leaders said.

How the high court saw it

In its unanimous ruling, justices from Kentucky’s highest court said that the Medical Review Panel Act (MRPA) delays access to the courts, violating Kentucky’s constitution.

Kentucky lawmakers established a system that would have prevented malpractice and malpractice-related claims against a health care provider from being filed in court until the complaint had been put before a medical review panel and that body gave its opinion on the merits.

If the panel didn’t give an opinion within nine months of being asked to give one, the law allowed the plaintiff to go forward with the lawsuit without the panel’s decision. Also, “claims validly agreed for submission to a binding arbitration procedure” would not have to go through the panel.

But the court said that language restricts an individual’s right to “remedy by due course of law, and right and justice administered without delay from and open court system.”

“It is as though no ‘course of law’ is taking place whatsoever,” the justices wrote in their opinion. “No ‘right and justice’ is being ‘administered’ at all. And not only have the courts become closed, in contravention of the mandate that they ‘shall be open,’ but seemingly every dispute-resolution process for malpractice claims has been closed, unless all parties agree to arbitrate or bypass the panel process.”

Could reworked law pass muster?

While all the justices agreed with that the 2017 law was unconstitutional, several judges disagreed with the reasoning in the majority opinion that “any delay to bringing a personal injury or wrongful death action is unconstitutional.”

Three justices concluded that they “were not so convinced that the framers intended the General Assembly to be so restricted from placing otherwise constitutionally sound processes for litigants to gain access to the courts.” They said they could not say “any measure the legislature may create to impose procedural steps prior to the bringing of an action … would always be unconstitutional.”