Kentucky Rules Medical Malpractice Review Panels Unconstitutional

On Thursday, November 15, 2018, Kentucky’s highest court unanimously ruled that a 2017 state law, which required medical malpractice claims to be reviewed first by an expert advisory panel, is unconstitutional.

In June 2017, the Medical Review Panel Act, a tort reform measure designed to weed out dead-end medical malpractice cases and prevent possibly negligent doctors from leaving the state, was struck down by the Kentucky Supreme Court because it delayed citizen’s access to the courts.

The Medical Review Panel Act required claimants to submit their cases to a panel of doctors prior to filing a lawsuit against a health care provider. A patient could file a request for a review, and three doctors would be assigned to review it. One doctor would be chosen by the patient, one by the defendant medical professional, and the third would be picked by the other two doctors. Those doctors then had nine months to issue a nonbinding advisory opinion that could be admissible in court.

According to Franklin Circuit Court Judge Phillips Shepherd, the law violates the equal protection and special legislation guarantees under the Kentucky Commission because it hinders Kentucky’s residents’ access to the courts in violation of the state’s open courts doctrine and is not rationally related to lawmaker’s goals.  It also limits the claimant’s freedom to choose how and when to access the courts.

The delay that resulted from the Medical Review Panel Act is unconstitutional because it contradicts Section 14, which applies to all branches of the government. Section 14 prohibits legislatively created delays to allow claimants the ability to seek immediate action in the courts of the Commonwealth for common-law personal injury matters.

The decision to rule the panels as unconstitutional is a setback for state lawmakers’ ongoing efforts to establish tort reform measures that benefit health care providers, but is a step forward for individuals and families who suffer from instances of malpractice-related injury and seek trial by jury.

The changes do not stop with the review panels. In March 2018, a bill was approved that made hospital peer reviews inadmissible as evidence in medical malpractice lawsuits. Another bill was passed that required med mal plaintiffs to file complaints with an affidavit of merit, which is an export report vouching for their claim.

At Thomas Law Offices, this step forward means that roughly a dozen of the cases we are representing clients for will be allowed to proceed in Circuit Court. Tad Thomas, Founder, had this to say regarding the ruling:

“The Supreme Court saw that this law was merely a delay tactic that infringed on the rights of individuals who have been harmed in hospitals and nursing homes. The founding fathers of our nation knew that the best way to achieve justice was by a jury of one’s peers, not a rigged bureaucracy.”