Kentucky’s Medical Review Panel Act (codified at KRS 216C and 900 KAR 11:010E) went into effect nine months ago on June 29, 2017. One of the key provisions of the “MRP Act” is found in KRS 216C.190, which states that if the panel has not given its opinion within nine months after the filing of the proposed complaint, the plaintiff may commence the action in court.
The nine-month window for the MRP to act has already closed for the first MRP actions to be filed. So what’s happening?
First, there is some question as to when the nine months runs. On October 30, 2017, the Franklin County Circuit Court declared the MRP Act unconstitutional and issued a permanent injunction prohibiting the CHFS from enforcing the Act. The order did not state what was to become of pending MRP actions, but the universal understanding was that all actions were stayed as of that date. On November 9, 2017, the Kentucky Court of Appeals issued an order staying the Franklin Circuit Court’s injunction. That order is also silent as to its impact on the nine-month tolling period.
There are no court orders or other guidance saying whether the nine months was stalled during that ten-day window while the Act was deemed unconstitutional. Legal counsel for the Cabinet for Health and Family Services has declined to take a position on the issue as well. Thus, it remains unclear whether the panel in an MRP action has an additional 10 days to reach its opinion.
Second, the constitutionality of the MRP Act is still unknown. The constitutional challenge to the law was fully briefed in March 2018 but has not yet been set for oral argument. Oral arguments will likely take place in June, and a final opinion by the Kentucky Supreme Court is most likely to be released in early November. There is a chance an opinion could be issued in August or September, but that is not likely. Sturgill Turner’s healthcare attorneys expect the statute will be deemed unconstitutional.
Overall, implementation of the MRP Act process has not gone smoothly to date. With no real guidance to (or requirements of) Attorney Chairpersons and the Cabinet taking a relaxed position on how MRP cases should be administered, the procedure varies greatly from case to case. Some allow the parties to agree upon their panelists while others adhere strictly to the striking process set out by the statute. Some Attorney Chairpersons allow written discovery while others do not (the statute is silent on written discovery). Some are more flexible with the deadlines governing submission of evidence where others are not.
A hurdle to the process is also posed by the fact that few healthcare professionals in the Commonwealth know anything about the MRP Act, therefore most are reluctant to serve as panelists. This complicates and lengthens the process for appointing the panel and, in some cases, frustrations and delays have led the parties to waive the MRP process altogether.
The future of the MRP Act is unclear at this time. However, a few things are very clear:
- When selecting an Attorney Chairperson, it is important to choose an individual who regularly practices healthcare law and has personal experience navigating the MRP process either as a litigant or as an Attorney Chairperson (preferably both).
- Significant education is needed among Kentucky healthcare professionals to promote their willing participation in the MRP process.
- If the MRP Act survives the current constitutional challenge, significant updates to the statute and regulations will be necessary to promote consistency in how cases are administered by the Attorney Chairpersons.
Stay tuned for more updates about Kentucky’s Medical Review Panel Act. In the meantime, contact Sturgill Turner healthcare attorney and experienced MRP Attorney Chairperson, Stephanie M. Wurdock, Esq., with your questions about the MRP Act.