Medical Review Panels’ Constitutionality Argued in KY Supreme Court

On August 8, 2018, the Kentucky Supreme Court heard arguments in the closely watched case of Claycomb et al. v. The Commonwealth of Kentucky, Cabinet for Health & Family Servs., 2017-SC-614 and 2017-SC-615, concerning the constitutionality of the new Medical Review Panel (MRP) provisions of state law found in KRS Chapter 216C. The oral argument calendar with links to the briefs, as well as amicus briefs, can be found here.

Medical review panel legislation is an issue that has been percolating in Kentucky for many years and was finally passed and signed into law by the Governor on March 16, 2017. The law’s effective date was June 30, 2017, and drew immediate challenges to its constitutionality, including the Claycomb case which has been considered by the legal community to be the flagship test for the new law.

The case was filed in Franklin Circuit Court and that Court ruled the MRP statute unconstitutional on several different grounds. The Kentucky Court of Appeals subsequently lifted an injunction imposed by the Franklin Circuit Court on enforcement of the MRP statute while the underlying merits of the case itself was transferred to the Kentucky Supreme Court.

The oral arguments at the Supreme Court demonstrated that the Court is keenly interested in the constitutionality of the statutory scheme (or lack thereof) but is also mindful of the practical implications of the law. The Court covered several topics with each side of the case and was active in its questioning of the parties.

Among the issues covered were (1) why or why not a delay in permitting Plaintiffs to file an action in Circuit Court was or was not a violation of Section 14 of the Kentucky Constitution (open courts); (2) whether or not there was a rational connection between the stated purposes of the law (to reduce frivolous malpractice suits, attract more doctors to Kentucky, and reduce malpractice premiums) and the operation of the law; (3) whether or not the legislation violated Section 59 and 60 of the Kentucky Constitution (prohibition against special legislation); (4) whether or not the law violated the separation of powers by requiring the trial court to admit the panel’s finding; (5) whether or not the law violated equal protection provisions of the Kentucky Constitution; and, (6) practical questions involving application of the law.

The arguments presented for the parties were polar-opposite on most issues.

One of the more interesting arguments concerned the “delay” of 9 months before a Plaintiff may file his or her case in Circuit Court while the MRP process is ongoing. It has been maintained by Plaintiffs throughout the current litigation that this 9-month period is a violation of Section 14 of the Kentucky Constitution which states:

“All courts shall be open, and every person for an injury done 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.”

The State’s position was that Section 14 of the Kentucky Constitution was applicable only to the Judicial Branch, pointing to a case decided in 1861, Johnson v. Higgins, 60 Ky. 566, 570-71, 1862 WL 4825 (1861), where the Court stated:

“The terms and import of this provision [now Section 14 of the Constitution] show that it relates altogether to the judicial department of the government, which is to administer justice “by due course of law,” and not to the legislative department, by which such “due course” may be prescribed.

Accordingly, the State argued that the 9-month time that a Plaintiff must wait to file in circuit court was not a constitutional violation. Additionally, it was posited that even if Section 14 of the Kentucky Constitution did apply as argued by the Plaintiffs, the delay was not unreasonable and the law itself was reasonable and rationally related to its stated purposes.

Some of the other matters touched on of interest to practitioners are questions such as:

  1. If the law is upheld and a panel’s opinion is to be introduced at the circuit court, how is it cross-examined if it does not represent the opinion of a person but rather a panel?
  2. What happens if a panel continues to operate and reaches a decision after the case has proceeded in circuit court to verdict (which is theoretically possible under the provisions of the statute). And, what if the panel reaches a different conclusion from the jury?
  3. The MRP statute only allows for 3 panel members. What happens if there are more than 3 specialties involved in a panel case?
  4. How will cases that are premised on res ipsa, which, arguably, require no experts, be handled?
  5. Will Defendants be forced to go through a MRP process when there is a clear failure to comply with the statute of limitations? The MRP statutes confer no explicit power to the panel chair to dismiss such cases nor any mechanism to bring those cases to the circuit court’s attention prior to the expiration of the 9 months.

Very spirited and first-rate arguments at the Kentucky Supreme Court! Whatever the Court decides, there are many interested folks waiting for the edict.

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