On June 29, 2017, the landscape of healthcare litigation in Kentucky changed dramatically when Kentucky’s Medical Review Panel Act took effect. Three months in, healthcare litigation attorney Stephanie Wurdock discusses the current status of the “MRP Act” and its outlook for the future.
The Medical Review Panel Act Legislative Intent & History
Kentucky’s Medical Review Panel Act, which some tout as just the first step in tort reform, created a jurisdictional precursor to filing a medical malpractice civil action in court. Pursuant to the MRP Act, before a patient can sue for medical malpractice, the patient must submit the case to a medical review panel for review on the merits. For a more detailed explanation of the MRP Act, visit New Law Creates Medical Review Panels in Kentucky.
The MRP Act passed the Kentucky Senate with a 23-13 vote on January 5, 2017, and an amended version passed the House with a 51-45 vote on March 1. The MRP Act, which is codified at KRS Chapter 216C, was signed by the governor on March 16 and went into effect on June 29. The corresponding administrative regulations, 900 KAR 11:010E, were adopted on an emergency basis that same afternoon.
Medical Review Panels – Immediate Effects
As expected, a barrage of medical malpractice cases was filed throughout the Commonwealth on June 28. Some sources estimate that more than 100 cases were filed that day in an effort to “beat” enactment of the MRP Act.
In the three months since the MRP Act took effect, more than 70 “proposed complaints” have been filed with the Cabinet for Health and Family services. The first full panel was set on October 12, and several other actions are in the process of appointing panel members. Some attorneys have continued to file their cases with the court, challenging the MRP Act’s constitutionality.
Constitutional Challenge to the Medical Review Panel Act
Opponents of the MRP Act have long disputed its constitutionality, claiming that it violates Kentucky’s “jural rights” or “open courts” doctrine. A thorough explanation of the doctrine is set out in the June 29, 2017 constitutional challenge to the MRP Act, Claycomb v. CHFS, Franklin Circuit Court, Div. I, 17-CI-708. Filed by two Louisville plaintiff’s attorneys, Claycomb asks the court to “preliminarily and permanently enjoin [the Cabinet] from enforcing the MRP Act” and to declare the MRP Act “facially unconstitutional and invalid.”
The 35-page complaint claims that the MRP Act violates the Kentucky Constitution “in a myriad of ways,” and alleges that litigants will suffer “irreparable harms” if the MRP is permitted to proceed, including that litigants will be forced to incur additional filing fees and costs associated with the panel process; will suffer a delay of up to nine months in access to the circuit court; and run the risk of receiving a prejudicial adverse panel opinion that may be used against them in court.
The challenge has been thoroughly briefed, and the court heard oral arguments on August 24. An order is expected to issue at any time. If the court does issue an injunction, the 70+ pending MRP cases will be in limbo. And no matter who prevails at the trial court level, the losing party will most likely appeal the decision to the Kentucky Court of Appeals, with likely removal directly to the Supreme Court of Kentucky.
Medical Review Panels – Unanswered Questions
Even if the MRP Act does withstand constitutional scrutiny, it will need considerable refinement and clarification to address many unanswered questions, for example:
- Can a claimant amend his/her complaint either during the MRP process or at the trial court level? If amended at the trial court level, does the amendment nullify the panel’s opinion?
- Does the MRP Act apply to Claims Commission (i.e., Board of Claims) cases?
- Who pays the attorney chairperson and panelists’ fees if the opinion is that the defendants breached the standard of care, but didn’t cause an injury?
- What if the panel never reaches an opinion?
- Will the MRP process deter or encourage frivolous lawsuits?
- What does it mean to “practice within a Supreme Court district” for the purpose of qualifying as an attorney chairperson?
- Can an attorney chairperson rule on affirmative defenses such as sovereign immunity?
- Can a party move to dismiss the MRP action (and therefore all subsequent legal action) for a claimant’s failure to prosecute?
Healthcare litigation attorneys will also be faced with new strategic considerations, such as what type of attorney chairperson to appoint, what type of panelists to appoint, and how much evidence to present to the panel.
While the MRP Act will need some work and undoubtedly presents new challenges for healthcare litigators on both sides of the bar, the framework does exist to ease Kentucky’s healthcare litigation “crisis” by increasing the frequency of pre-trial settlements and shortening the time to trial. The leading question now is whether Kentucky’s appellate courts will give the MRP Act a chance to do so.
Check back for updates in the MRP Act’s constitutional challenge and for practice tips for litigating MRP Act claims.
Stephanie Wurdock is a healthcare litigation attorney who specializes in the defense of nursing homes and physicians. She serves as an MRP attorney chairperson and is currently presiding over the first MRP action to be filed. She has given multiple presentations and written multiple articles about Kentucky’s MRP Act, and she can be contacted at 859.255.8581 and firstname.lastname@example.org.
Disclaimer: This article does not, nor is it intended to, constitute legal advice.