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Kentucky Supreme Court Declares Medical Review Panels Unconstitutional

Nov 16th, 2018

Kentucky Supreme Court Declares

Medical Review Panels Unconstitutional


            In a recent unanimous decision, the Kentucky Supreme Court held that the General Assembly’s most recent tort-reform attempt, Medical Review Panels, is unconstitutional. The Opinion can be found here: http://opinions.kycourts.net/sc/2017-SC-000614-TG.pdf.


            The Medical Review Panel Act, passed in 2017, required all malpractice or malpractice-related claims against healthcare providers and entities to go through a review process before going to court. The review process involved a panel of three physicians and an attorney chairperson, who would review the case and offer an opinion on whether the standard of care had been breached. If the panel had not issued an opinion within 9 months from the date of the MRP complaint, the plaintiff was then allowed to go to court. In other words, the MRP process created a de facto 9-month delay for malpractice plaintiffs.


            Chief Justice Minton, writing for the Court, held that such a legislatively mandated delay on a citizen’s access to Kentucky’s courts violated Section 14 of the Kentucky Constitution. That Section provides that all state courts will be open for citizen’s redress of injuries "without . . . delay.” According to the Court, a plaintiff must have access to the adjudicatory process of their choosing, not the General Assembly’s. And that access must be immediate: "Access to the adjudicatory method of their chocice for immediate redress of common-law personal-injury claims is a constitutional right that all claimants have, unless they choose to give it up; the government cannot take it away.” Op. at p. 20.


            It’s important to point out that the Court’s opinion only applies to common-law claims. If the General Assembly creates a cause of action, it can likewise create a system of redress—e.g. workers’ compensation. And the Court was quick to point out that arbitration or other alternative dispute-resolution processes do not violate Section 14, as long as the plaintiff has the ability to choose immediately which process they prefer.


            This decision places Kentucky in the minority of states and in a relatively archaic tort climate. The majority did not ignore this, instead highlighting the differences between Kentucky’s and other states’ constitutions and the flaws in sister states’ reasoning. In the end, it was a sweeping defeat for the General Assembly.


            Practically speaking, this is likely the death knell for any future legislative tort reform. It is difficult to imagine a tort-reform scheme that would not violate Section 14 as interpreted in the Court’s Claycomb opinion. For tort reform to move forward in any way, a constitutional amendment will be required.


            This opinion’s wake leaves many unanswered questions, but what is clear is that medical-malpractice litigation will soon go back to "normal.” The Court’s opinion will be final on December 5, at the earliest.


            Thompson Miller & Simpson is a seasoned litigation and appellate firm, focusing primarily on healthcare litigation, product liability, and professional licensure defense. If you have any questions, please contact the firm at (502) 585–9900.


            Joey Wright is an associate at TMS and worked on Supreme Court amicus briefing in the Claycomb case. He can be reached at (502) 357–1946 or jwright@tmslawplc.com.