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TMS files Amicus Curiae brief on behalf of the KAHCF

Jan 24th, 2018

TMS files Amicus Curiae brief on behalf of the Kentucky Association of Health Care Facilities supporting Kentucky’s Medical Review Panel Act.

On January 23, 2018, attorneys for Thompson Miller & Simpson PLC filed an Amicus Curiae (friend of the court) brief in support of Kentucky’s recently enacted Medical Review Panel’s Act ("MRP Act”), found at KRS Chapter 216C. TMS’ brief, filed on behalf of the Kentucky Association of Health Care Facilities ("KAHCF”), supports the constitutionality of the MRP Act and details independent analysis which show high medical malpractice costs for Kentucky’s long-term care facilities. The case is styled Commonwealth of Kentucky, Cabinet for Health and Family Services v. Claycomb, Ky. Sup. Ct., 2017-SC-000614-TG; 2017-SC-000615.

The MPR Act requires litigants to file proposed complaints with the Kentucky Cabinet for Health and Family Services ("CHFS”) prior to filing in Circuit Court. CHFS appoints a panel, which is overseen by an attorney-chairperson and consists of three health care professionals.  The parties are given an opportunity to engage in a discovery process overseen by the panel with appeal rights to the Circuit Court. After reviewing the evidence, the panel makes a recommendation whether the provider has violated the standard of care and if so whether that violation was a substantial factor in the patient’s negative outcome. Regardless of the panel’s decision, the plaintiff may proceed to the appropriate court.  

TMS’ client, KAHCF, was active in advocating for the passage of the MRP Act during the 2017 Kentucky General Assembly’s Regular Session.  KAHCF is the non-profit trade association that represents over 200 proprietary and nonproprietary nursing facilities and personal care homes across the Commonwealth.  These facilities are licensed under KRS Chapter 216B, and thus fall under the definition of "Health care provider” in the MRP Act.

Last summer, when the law was challenged in Franklin Circuit Court, TMS filed a joint amicus curiae brief on behalf of KAHCF, along with counsel for the Kentucky Hospital Association, the Kentucky Medical Association, and others.  The Franklin Circuit Court found the MRP Act unconstitutional and issued an injunction against CHFS, prohibiting the MRP Act’s enforcement.  CHFS appealed and successfully argued for a stay of the injunction pending the outcome of the case.  The case was quickly transferred to the Kentucky Supreme Court, which issued an expedited briefing schedule. The Court is expected to rule later this year.

Mitchel T. Denham, B. Todd Thompson, and Joey Wright wrote the amicus brief. TMS represents numerous health care providers before medical review panels, state courts, and federal courts.