Judge strikes down new Kentucky law creating medical review panels

Dealing a major blow to efforts to curb supposedly frivolous malpractice claims, a judge has struck down a new Kentucky law creating medical review panels to screen such cases before they go to trial. 

In a ruling Monday, Franklin Circuit Judge Phillip Shepherd found the law passed this year by the Kentucky General Assembly is unconstitutional, because it restricts the right of people to plead their cases in court.

"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," Shepherd's order said. "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.' "

Shepherd's order bans the state from enforcing the law that requires a three-member panel of health professionals review medical malpractice claims before a lawsuit is filed.

Gov. Matt Bevin, a Republican, signed the bill into law, and his administration touts it as “the first step toward tort reform” on the website of the Cabinet for Health and Family Services, which administers it.

A Bevin spokeswoman said Monday the administration will challenge Shepherd's decision.

“We are confident medical review panels are constitutional and will be appealing the Franklin Circuit Court’s ruling immediately,” Amanda Stamper said.

But Senate Minority Leader Ray Jones, a Pikeville Democrat who had argued strongly against the law, said he expects Shepherd's ruling will stand.

"It is a clear barrier to access to the courts," Jones said. "It is an infringement on the constitutional right to a trial by jury."

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The law limiting medical malpractice lawsuits took effect June 29 and had been sought for years by nursing home officials, physicians, hospitals and others who claimed they are subject to frivolous lawsuits.

It was challenged immediately in court by a Lexington woman, Tonya Claycomb, claiming it was unconstitutional. Claycomb was seeking to file suit on behalf of her son, who suffered from cerebral palsy and brain damage she alleged was the result of medical malpractice.

Kentucky is one of about a dozen states to adopt a law for medical review panels, though some have been struck down in other states.

Supporters of the law include Sen. Ralph Alvarado, a Winchester Republican who is a physician and was the sponsor of Senate Bill 4, which established the law. He said it would provide welcome relief to the medical profession.

"Frivolous, nonsense lawsuits, they happen all the time," he said in a June interview with Courier Journal.

He did not immediately respond to a request for comment Monday.

Advocates and trial lawyers opposed the bill, saying it would unduly restrict peoples’ access to sue for horrific injuries and death at the hands of medical providers.

“Fundamentally unfair” is how Wanda Delaplane, a Lexington woman whose father died an agonizing death in a Frankfort nursing home from medical neglect, described the law.

Shepherd's order noted the process adds to costs for people. The law requires the side receiving the favorable opinion to pay the costs of the panel.

And it said the law doesn't require that a medical professional familiar with the medical practice in dispute must serve on the panel. It only requires that they be licensed health professionals.

"Thus a dermatologist or social worker might be called upon to render an opinion about malpractice allegations against a brain surgeon," Shepherd's order said.

And Shepherd said the law fails in its stated purpose, to reduce frivolous malpractice claims.

"It does not prohibit or even discourage the filing of frivolous suits," his order said. "Instead, it creates unnecessary obstacles for all medical malpractice claimants, regardless of the merits of their claims."

Under the law, anyone alleging harm by a medical provider such as a doctor, nurse, hospital or nursing home must first have the case screened by an outside panel of medical professionals before filing suit.

Panel members must render an opinion as to whether a breach of care occurred and whether it was a "substantial factor" in causing harm to the patient.

The panel can’t stop the person from filing a lawsuit, but its findings for or against the health provider may be admitted as evidence in court. Only after the panel has been established and issued a finding — which can take up to a year — can the case proceed to trial.

If the panel, once established, takes more than nine months to render a decision, the individual may proceed with a lawsuit. And if both sides agree, they can skip the medical review panel and go directly to court.

Though Republicans who control the state Senate supported the medical review law, they had been unable to push it through the General Assembly while Democrats, some of them trial lawyers, controlled the House. But that changed in 2016 when Republicans took over that chamber as well, and the measure passed this year.

Jones said the law is nothing more than a reward to business interests, masked as an effort to control excessive litigation.

"There’s never been a litigation crisis," Jones said. "It's fiction. This was simply a giveaway to big business, insurance companies, nursing homes, that have helped fund the Republican Party."

Contact reporter Deborah Yetter at 502-582-4228 or at dyetter@courier-journal.com.