Many states have instituted laws that require medical malpractice victims to go before a review panel before filing a lawsuit. The intention is to weed out frivolous lawsuits, but these panels are controversial. In some states they have been struck down and found unconstitutional. In Kentucky, a judge struck down a medical review panel law in 2017, but the governor’s administration appealed that decision and sent it to the Kentucky Supreme Court. The state’s highest court just struck down the law once and for all.
The 2017 Medical Review Panel Law
The original law was sponsored by republican Senator Ralph Alvarado. He is a physician and brought he bill before the state’s legislature in a move to institute tort reform. The law was supported by most legislators and passed and was signed into law by Governor Matt Begin last year.
Supporters of the law hoped that it would minimize the number of medical malpractice lawsuits that actually go through to the court system. This was supposed to be a measure to reduce health care costs and address the issue of doctor shortages in the state.
The law when instituted required that any malpractice claims filed against medical professionals, hospitals, and other health care facilities first go before a panel for review. The panel was to be made up of three medical professionals and their opinions were to be allowed to be used as evidence in subsequent trials or settlements. The panel could not stop a lawsuit from being filed, but it was a necessary step before filing, and the panel had nine months to review a case.
The State Supreme Court’s Opinion
The law was struck down by the Kentucky State Supreme Court with all seven justices in agreement. This came after Franklin Circuit Judge Phillip Shepherd already struck down the law in October of last year. He stated that the requirement of the review panel only protects economic interests of defendants and that this would come at the expense of patients and consumers. Three of the justices agreed with the result but signed different opinions.
The Supreme Court agreed and declared that the law violated Kentucky’s constitution. At issue, according to the ruling written by Chief Justice John Minton, was that the law delayed access to the court system. With a nine-month allowance on the review of cases by the panel, the process could have significantly delayed a patient’s access to seeking justice through the courts.
According to the Kentucky constitution: “All courts shall be open and every persona for an injury done to him in his lands, goods, person, or reputation shall have remedy by due course of law and right and justice administered without sale, denial, or delay.”
Moves to Amend the Constitution
Patient advocacy groups were happy with the result, but those who put the bill forward and supported it were disappointed. Sen. Alvarado is considering options now to attempt to amend the constitution for tort reform. This would allow voters to decide if there should be a medical review panel in place. Critics of the ruling believe that the state needs more tort reform and that it is one of few states that have meaningful measures in place to reduce frivolous malpractice suits.
For now patients who have been victims of medical malpractice have clear access to the court system and are able to work with their lawyers to file and move claims forward. If you have been harmed by a medical caregiver, contact a malpractice lawyer who specializes in these cases and can help you decide what to do next.