By Robert A. Ott

On November 15, 2018, the Kentucky Supreme Court held that Kentucky’s Medical Review Panel Act (MRP) was unconstitutional. The MRP Act (KRS 216C.005 et seq.) was enacted into law on June 29, 2017, and established that all potential medical malpractice suits must first be presented to a three person medical review panel before the case could be filed in State court. Under the Act, after all the evidence had been submitted to the panel, the panel was to render one of three opinions: (1) that the defendant failed to act according to the applicable standard of care and that failure was a substantial cause of plaintiff’s injury; 2) that the defendant failed to act according to the applicable standard of care but that failure was not a substantial cause of plaintiff’s injury; or (3) the defendant did act according to the applicable standard of care. It was only after the panel rendered its decision (or after nine months if it had not rendered a decision) that the Plaintiff could file suit in State Court.

The Kentucky Supreme Court, in a unanimous decision as to the result, took issue with the Act and declared the Act unconstitutional. Commonwealth of Kentucky, Cabinet for health and family services, et al. v. Ezra Claycomb, a minor et. al. 2017-SC-000614-TG and 2017-SC-000615-TG.

The underlying case involved a newborn (Ezra Claycomb) born with severe brain damage allegedly caused by medical negligence. Initially, it was the trial court that struck down the MRP Act as unconstitutional, a decision which was immediately appealed to the Kentucky Court of Appeals. The trial court’s decision was stayed by the Kentucky Court of Appeals and the merits of the matter transferred to the Kentucky Supreme Court, which heard oral arguments in August 2018.

In holding the Act unconstitutional, the Kentucky Supreme Court focused its analysis on Section 14 of the Kentucky Constitution. Section 14 is entitled the “Right of judicial remedy for injury -- Speedy trial”. Section 14 states that “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 Court found that Section 14 not only applied to the Judicial branch but also to the Legislative branch, holding that the Legislative branch cannot enact legislation contrary to the rights guaranteed in Section 14, including a right to have justice without delay. The Court reasoned that, even though there are natural delays in judicial proceedings, the Act was unconstitutional because it created a mandatory delay. The Court found that due to the Act’s provisions, claimants were now unable to seek immediate redress through the Judiciary, which was unconstitutional.

In its ruling, the Kentucky Supreme Court held the entirety of the MRP Act was unconstitutional. As a result, it is expected that any cases currently part of the MRP process will be immediately filed in Kentucky State court. For a direct link to the opinion see: If you have any questions regarding this law or any other healthcare malpractice issue, please contact a member of our Medical Malpractice Defense Practice Group.

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