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UPDATE: Kentucky Court of Appeals allows Medical Review Panels to proceed
November 9 — The Kentucky Court of Appeals issued an order to stay the ruling by the Circuit Court that held the Medical Review Panel Act to be unconstitutional. In its order, the Court of Appeals noted the “fatal effect of limitations statutes on the claims of persons who, in obedience to the Act, failed to timely file a lawsuit in court.”
As a result of this decision, the 89 cases pending before the Cabinet will proceed, and all prospective malpractice cases must go through the medical review panel process before being filed in court.
Read the full order here and check back for additional updates as they happen.
Plaintiff in MRP Act challenge seeks to preserve tolling provisions
On November 6, the plaintiff/appellee in the MRP Act constitutional challenge filed a motion to modify the Franklin Circuit Court’s 10/30/17 order, which enjoins the Cabinet for Health and Family Services from enforcing the MRP Act.
The motion asks the court to amend its order to enjoin, until the constitutional challenge is resolved on appeal, only those provisions of the MRP Act that govern chairperson/panel selection, operation, consideration of evidence, and rendition of opinions. If modified as requested, the 85 claimants who have pending MRP actions would be permitted to rely upon the MRP Act’s tolling provisions. Claimants could also continue filing MRP actions if they chose to do so. The motion is set to be heard by the Franklin Circuit Court at 9:00 a.m. EST on November 15, 2017.
Today, in conjunction with the order to modify, the plaintiff/appellee filed a response to the Cabinet’s Motion for Interlocutory Relief, alleging that it was improperly and prematurely filed in the Court of Appeals.
The Cabinet is expected to file a motion requesting an expedited review/determination of the issue.
Cabinet for Health and Family Services files motion asking that Medical Review Panels be permitted to continue work while appeal is pending.
On November 1, The Cabinet for Health and Family Services filed a Motion for Interlocutory Relief Pending Appeal Pursuant to CR 65.08, in which it asks the Kentucky Court of Appeals to stay the Franklin Circuit Court’s judgment permanently enjoining the Cabinet from enforcing the MRP Act. The motion states the following bases for its request:
1. The Commonwealth will suffer irreparable injury if the circuit court’s judgment is not stayed pending appeal.
The Cabinet argues that absent a stay, the injunction “jeopardizes the timeliness of the claims that are currently pending before the medical review panels. It states that “those who have claims pending before the review panels cannot rely on the tolling provisions, which means that they might find themselves unable to pursue their claims altogether.” The Cabinet also argues that those who have been appointed to medical review panels (both the attorney chairpersons and the panelists) are harmed because there is no longer any authority for them to be paid. Finally, the Cabinet accuses the injunction of creating “havoc and confusion that can only be avoided by a stay pending appeal.”
2. The equities weigh in favor of a stay.
The Cabinet refers to the irreparable harm described above and states that “no actual harm [is] caused to anyone if [the] process prescribed by SB 4 is allowed to continue during the pendency of this appeal.” In support of its opinion, the Cabinet notes that the circuit allowed the panel process to continue throughout the briefing process at the trial court level even though such relief was requested by the plaintiff.
3. There is a substantial question on the merits.
The Cabinet questions whether the circuit court correctly applied the rational basis standard, the separation-of-powers doctrine, and the jural-rights doctrine.
The Cabinet concludes: “Even if SB4 is ultimately found unconstitutional . . . a stay will do relatively little harm to anyone. In contrast, if SB 4 is ultimately found to be constitutional, the refusal to grant a stay will have resulted in irreparable harm to the Commonwealth.”
According to an affidavit from the Executive Advisor to the Secretary of the Cabinet for Health and Family Services, 85 cases had been filed under the MRP Act prior to it being deemed unconstitutional. Of those cases, 29 have progressed to the point of a panel chairperson being selected, and in 6 cases the full medical review panel has been selected.
Four additional cases were filed after the Act was ruled unconstitutional. At least one of those cases is believed to have a statute of limitations that expired the date it was served upon the Cabinet.
In the aftermath of the Franklin Circuit Court’s opinion, the Cabinet has received numerous phone calls seeking guidance about how to proceed. Currently, all emails to the MRP administrator receive the following automatic response:
“The Medical Review Panel Branch WILL NOT BE taking any further action under the MRP Act until such time as we hear from the Court of Appeals on a Motion filed requesting the Court to stay the permanent injunction entered by the Franklin Circuit Court, Div. I, entered Monday, October 30, 2017.”
The Cabinet for Health and Family Services was notified late Monday afternoon of the order finding the Medical Review Panel Act unconstitutional, and permanently enjoining the Cabinet and its employees from enforcing or administering the MRP Act.
The Cabinet DOES NOT provide legal advice. You should contact an attorney for legal advice concerning your case.
At this time, all MRP actions are stayed. We will continue to update this page as more information becomes available.