Medical Review Panel Act Struck Down as Unconstitutional

Nov. 15, 2018 — The Supreme Court of Kentucky issued its much anticipated opinion in the Medical Review Panel Act constitutional challenge litigation. The opinion, drafted by Chief Justice Minton without dissent, declared the Medical Review Panel Act void and unconstitutional in its entirety.

On June 30, 2017, Governor Matt Bevin signed into law a tort reform measure known as the Medical Review Panel Act, codified at KRS 216C. The “MRP Act” required individuals who wanted to sue their healthcare providers for medical malpractice to submit their claims to a three-person panel prior to filing suit in court.

A constitutional challenge was filed the day the new law went into effect. The Franklin County Circuit Court declared the MRP Act unconstitutional and enjoined it from being carried out. An emergency order suspending that injunction was issued, and the decision was appealed to the Supreme Court of Kentucky. Today’s opinion affirms and upholds the injunction.

So what does this mean?

All pending medical review panels are dissolved effective immediately. Cases currently pending in front of a medical review panel can be filed in court, and cases that were filed in circuit court and stayed can be revived. Kentuckians who wish to sue for medical malpractice no longer have an obligation, or even the ability, to submit their claims to a medical review panel for review prior to filing suit.

Under the MRP Act (KRS 216C.040), filing of a “Proposed Complaint” tolled the applicable statute of limitations until 90 days after an opinion was rendered by the medical review panel. The question thus becomes – When does the SOL run for claims currently pending in the MRP that were not also filed in state court? The Supreme Court is silent on this topic in this opinion, but the question of how long plaintiffs have to file suit may have been answered by the Nov. 22, 2017 opinion of the Franklin Circuit Court, which was NOT appealed. The Franklin Circuit Court opinion, authored by Judge Phillip Shepherd, stated as follows:

Likewise, this Court notes that its final judgment determined that the Medical Review Panels were established in violation of Sections 2, 27, and 28 of the Kentucky Constitution, and thus have no jurisdiction to administratively adjudicate claims. KRS 413.270, the “savings statute,” provides that when a claim pending before an administrative agency is dismissed for lack of jurisdiction, the claimant has an additional ninety (90) days from the time that the dismissal is final to “commence a new action in the proper court.”

MRP action is “dismissed for lack of jurisdiction,” i.e., from the date the MRP Act is declared unconstitutional. The SCOKY opinion likely will not be “final” until early December 2018, at which time the 90-day savings statute would be triggered IF the savings statute does in fact apply.

For cases that were not filed concurrently in state court, an argument exists that the SOL was never tolled for these cases, meaning those claims are now time-barred. Kentucky’s 90-day “savings statute” (KRS 413.270) may not provide relief, as it requires suit to have been filed in a “court,” which is defined as “all courts, commissions, and boards which are judicial or quasi-judicial tribunals authorized by the Constitution or statutes of the Commonwealth of Kentucky or of the United States.”

Next, the opinion gives no guidance as to if and how attorney chairpersons and panelists are to be paid for services rendered. Authorization and procedure for payment was established by a now-unconstitutional piece of legislation. Therefore, one position would be that no payment is owed. However, litigants are encouraged to split the cost of the attorney chairperson and panelist fees. Laws of equity may also require payment.

Finally, as for the admissibility of MRP opinions already rendered, it is likely that MRP opinions issued prior to this morning’s decision will not be admissible in court. Of course, panelists who are willing to do so may be retained as consulting/testifying experts per the usual civil procedures.

What is the basis for the ruling?

The opinion holds that the MRP Act “delays access to the courts of the Commonwealth for the adjudication of common-law claims,” thus violating section 14 of the Kentucky Constitution. Section 14 acts as a limitation against all departments of government interfering with its guarantees of access to the courts. It is known as Kentucky’s “open courts” or “jural rights” doctrine.

The Court declared the MRP Act “an unacceptable deviation from the right of every individual in society to access a system of justice to redress wrongs.”

The General Assembly, through Chapter 216C, has created a mandatory delay affecting the ability of all medical-malpractice claimants to see any redress, unless all parties either “validly agree[] . . . to a binding arbitration procedure or agree to bypass the medical review panel process. Chapter 216C takes away the ability of medical-malpractice claimants to seek immediate redress in the forum of the claimant’s choosing. Chapter 216C contravenes one of the main purposes of Section 14 – to prohibit legislatively created delays in the ability of a claimant to seek immediate redress in the courts of the Commonwealth for common-law personal injury, i.e., to prevent the people from being “ordered . . . not to proceed with particular causes[] and [from] justice [being] delayed.

What makes the delay imposed by Chapter 216C unconstitutional is the General Assembly’s usurpation of a claimant’s freedom to access the adjudicatory method of his or her choosing at the time of his or her choosing. . . . [Under the MRP Act], [c]laimants may only seek immediate redress for their common-law personal-injury claims through arbitration or the courts if, and only if, the adverse parties agree to proceed through arbitration or the courts. This is an untenable restriction on the exercise of the individual’s right to receive ‘remedy by due course of law, and right and justice administered without . . . delay’ from an ‘open’ court system.

The mandatory imposition of a delay in seeking immediate redress for a common-law personal-injury claim in the adjudicatory forum of the claimant’s choosing cannot amount to ‘due course of law,’ because it is as though no ‘course of law’ is taking place whatsoever. . . .

The Court concluded that the MRP act is an “unacceptable deviation from ‘[t]he right of every individual in society to access a system of justice to redress wrongs” because it forecloses immediate access to the courts. (Importantly, however, the Court did clarify that proceeding through an alternative means of adjudication – whether through arbitration, mediation, administrative proceedings, or some other form of dispute resolution process – is not per se unconstitutional assuming certain conditions are met.)

Justices Hughes, VanMeter, and Venters concurred in the opinion. Justice Cunningham concurred in result only by separate opinion. Justice Keller concurred in result only by separate opinion, which was joined by Justices Cunningham and Wright.

This article will be updated as more information becomes available with respect to how parties should proceed.