Judge rules new law on medical review panels unconstitutional

10/31/2017 12:15 PM

A judge has struck down the state’s recently enacted law authorizing medical review panels, saying the statute is unconstitutional and presents “an expensive and unnecessary obstacle” for those seeking relief in medical malpractice lawsuits.

Franklin Circuit Judge Phillip Shepherd issued the ruling Monday in a lawsuit filed in June by Tonya Claycomb, a mother who says her newborn son suffers from severe brain damage and cerebral palsy due to malpractice.

The General Assembly enacted medical review panels during this year’s legislative session, which Gov. Matt Bevin signed into law, in order to weed out frivolous malpractice lawsuits, but Shepherd said in his 28-page ruling that the new statue also makes it more expensive to pursue such cases, which can take months before review panels reach their conclusions.

Whichever side is successful in the review process must pay the panel’s chairperson $250 per day, not to exceed $2,000, and $350 for other members involved in the decision, plus expenses for panelists called as expert witnesses in trial, according to Shepherd’s order.

“Those who can afford the lengthy and expensive process may file complaints in state court, even if their claims are meritless,” Shepherd wrote. “Those with meritorious claims, on the other hand, may find themselves unable to afford the extra delay and expense of the panel process; these claimants are deterred from seeking relief in a court of law.

“Accordingly, while this process may prevent the filing of a small number of frivolous claims, it is much more likely to deter the filing of meritorious suits and impose a significant administrative cost on these claimants.”

Requiring a claimant to first go through a medical review panel also “obstructs access to the courts in violation of Kentucky’s open courts doctrine” as well as jural rights in the state Constitution, Shepherd wrote in his ruling.

“The effect of the medical review panel process is not the reduction of frivolous negligence claims, but rather, the erection of barriers to the court system,” he added. “These barriers prevent the filing of claims, meritorious or not, by imposing significant delays and costs. Those that cannot afford the additional delays and costs should not be prevented from pursuing their constitutional right to a ‘remedy by due course of law.’”

Amanda Stamper, Bevin’s communications director, said the Governor’s Office is “confident medical review panels are constitutional and will be appealing the Franklin Circuit Court’s ruling immediately.”

The Kentucky Medical Association also expressed its displeasure in Shepherd’s ruling, saying in a statement that the organization “is committed to defending the constitutionality of the medical review panel law and is very hopeful that the court system will agree with the legislature.”

“While KMA certainly hoped for a different outcome at this stage of the court process, it should be stressed that opinions and appeals at more than one level were always contemplated and expected,” the group said.

Shepherd further noted that panelists aren’t required to have legal experience or backgrounds in the medical disputes at issue, which means that “a dermatologist or social worker might be called upon to render an opinion about malpractice allegations against a brain surgeon.”

He also wrote that requiring decisions of medical review panels to be accepted as admissible evidence usurps the judicial branch’s constitutional authority to craft procedural rules.

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