Kentucky Medical Review Panel Requirement is Unconstitutional

The Kentucky State Supreme Court unanimously reversed a law implemented in 2017 that required claims of medical malpractice to first pass a medical review panel. The panels were to verify that the claim had merit before entering the court system. The 7-0 ruling in the case of Commonwealth of KY v. Claycomb is strongly opposed by the state's professional medical associations and the governor. Governor Matt Bevin says that the ruling makes it “nearly impossible to initiate meaningful tort reform.” The high court deemed that the process was unconstitutional because it prevented citizens from directly accessing the court system.

Court Access

The Medical Review Panel Act (MRPA) was designed to reduce the number of meritless claims against providers. Many opponents found the process created an unfair period of delay. If the panel did not issue a ruling within a nine-month period after filing, then the plaintiff was able to proceed with their claim. A binding arbitration process was an alternative to obtaining panel approval in bringing a claim.

Barriers and Delays

The court emphasized that plaintiffs should have access to “justice administered without delay.” They felt the courts were increasingly becoming “closed.” Several of the judges felt that “any delay” in bringing a claim to pursue damages through civil actions was essentially unconstitutional.

Potential Repercussions

Critics of the decision say that it will make attempts at recruiting physicians to the state more difficult and increase the overall costs of medical care. The court explained that the review panel procedure was a barrier to the courts and not an effective means of reducing frivolous claims. In addition to the delays of time, the panel process brought about added costs.

Review Panel Facts

• The concept was first developed in 1975 when Indiana implemented panels.
• Currently, about 12 states use some variation of this process.
• In Ohio, an affidavit must be signed by a physician who believes that the claim has merit.
• In other states like Maine and Montana, a “reasonableness standard” is employed in justifying the delays created by the process.
• Since Kentucky's system was implemented, roughly 11% of over 500 claims were sent to a panel and only 3% of them made a ruling.

Who Are the Medical Panelists?

The panels were composed of medical professionals that had a current license—in Kentucky, when possible. These professionals were supposed to be working in the same profession or specialty as the defendant. Either party was able to propose that professionals from related professions or specialties be considered.

Kentucky Malpractice Law Overview

The state uses a pure comparative fault system in allocating negligence in these actions. In actions where multiple parties have contributed some degree of fault, a jury allocates the negligence proportionally among them. When calculating damages, the parties are then responsible for their percentage of fault in the matter. If a plaintiff were found to have contributed 20% of fault, then any award they receive is simply reduced by that percentage. The state places no limitations (caps) on the amount of damages that can be awarded.