Are Medical Malpractice Review Panels Unconstitutional?

Covington KY attorney Paul Dickman sitting at a deskA new law in Kentucky requires any claim of medical malpractice to go through a lengthy review by an impartial panel of healthcare professionals. The law gives the panel nine months to issue an opinion on whether the suit is frivolous. However, many are deeming it to be unconstitutional, as according to section 14 of the state’s constitution, every person has access to the courts “without … delay.”

Tonya Claycomb’s son Ezra was born with severe brain damage and cerebral palsy due to alleged medical negligence. She sought to recover for the cost of his treatment. However, she refused to go through the required panel review and instead fought to overturn the law itself.

Kentucky Ranks as One of the Most “Litigation-Friendly” States

Kentucky is one of the most “litigation-friendly” states in the country. The U.S. Chamber of Commerce for Legal Reform ranks Kentucky 43 out of 50 states concerning climates of liability. The ranking has been getting worse over the past few years. Gov. Matt Bevin and House and Senate Republicans as the first step towards minimizing frivolous lawsuits hailed the law. These lawsuits have significantly raised the cost of liability insurance and have been responsible for driving physicians out of the state.

Kentucky Remains at a Disadvantage for Attracting New Business

Seventeen other states including nearby West Virginia, Indiana, and Tennessee have pursued medical malpractice reforms in order to maintain a level playing field and better attract business investment and qualified providers. Kentucky has been at a disadvantage for the same. With providers shelling out less money on settlements and meritless claims, they are better able to invest in providing superior care for everyone.

The Supreme Court to Decide if Medical Malpractice Reform is Constitutional

After the first round in court, Claycomb came out victorious, with the law thrown out on 13 separate grounds. The Court of Appeals put the decision on hold. The Kentucky Supreme Court will review the process in question and decide whether it is constitutional or not. “This is a modern day version of the poll tax,” said Claycomb’s attorney, J. Guthrie True. “This has one purpose, and that is to obstruct the courthouse door.” However, Matthew Kuhn, an attorney for Kentucky’s governor, stated that the Constitution’s ban on delaying access to the courts does not apply to the legislature – only to the court system itself. He referenced other laws that place limitations on when people are allowed to file lawsuits. One law he pointed to is that of heirs wanting to sue the executor of an estate. In those cases, the heirs must wait at least six months after the appointment of the executor. He expressed that that law has never been challenged. He also pointed to the process as helpful because it gets both sides to begin discussions, increase the likelihood of settlements, and ensures that both sides have all necessary evidence prior to going in front of a judge.

What Does “Without Delay” Really Mean?

Some argue that Kuhn’s interpretation of the law reads things into the constitution that do not actually apply, with Justice Michelle Keller referencing Kuhn’s argument that “without delay” should be read as “without unreasonable delay.” He however argues that it would be applying the same standard of “unreasonable” as it does to other laws.

The Rational Basis Standard

True has expressed that the medical review panel law does not pass the “rational basis standard,” which demands that a law be “rationally related to a legitimate state interest.” Kuhn has argued that the state interest in question is encouraging more doctors to practice in Kentucky because of its current shortage. True says that Kuhn’s argument is faulty in that the state has more doctors per capita than Texas and Indiana, both of which have medical review panels.

The Supreme Court of Kentucky has not issued a ruling and is not under a deadline to do so.

Posted in: Uncategorized