Monday, November 19, 2018
On Thursday, the Kentucky Supreme Court ruled that the medical malpractice panel law, passed in 2017, was unconstitutional. The law required medical malpractice claimants to go through a panel procedure (review by health care professionals) prior to obtaining a jury trial. The process consumes nine months and the outcome is admissible, but not binding, at the subsequent trial. In reporting on the reason the court held the law unconstitutional, J.D. Supra stated:
In holding the Act unconstitutional, the Kentucky Supreme Court focused its analysis on Section 14 of the Kentucky Constitution. Section 14 is entitled the “Right of judicial remedy for injury -- Speedy trial”. Section 14 states that “All courts shall be open, and every person for an injury done him in his lands, goods, person or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.” The Court found that Section 14 not only applied to the Judicial branch but also to the Legislative branch, holding that the Legislative branch cannot enact legislation contrary to the rights guaranteed in Section 14, including a right to have justice without delay. The Court reasoned that, even though there are natural delays in judicial proceedings, the Act was unconstitutional because it created a mandatory delay. The Court found that due to the Act’s provisions, claimants were now unable to seek immediate redress through the Judiciary, which was unconstitutional.
The entire J.D. Supra article is here.
I won't opine on the constitutionality of the law, but I will say that as a matter of policy the delay is a bad idea. Med mal cases are too slow already. This was my reaction in 2015 when Kentucky was considering an earlier version of the law:
The bill is a bad idea because it adds more delay and transaction costs to an already lengthy and expensive process, without resolving anything. Studies conclude the average med mal claim lasts about 5 years from event to resolution, with more money being used to run the system than to compensate victims. Review panels increase the time to resolution by adding another layer of procedure. They also increase transaction costs as lawyers and experts for both sides try to convince an additional decision maker of the merits of their case.
To the extent reducing frivolous claims is the goal, a certificate of merit requirement would be preferable: it is quicker and less expensive. Moreover, reducing the length and adversarialism of the process should be the focus. Review panels were in place in Virginia when I practiced. Most plaintiff's lawyers simply didn't participate. The result was admissible at trial, but so was the information that the plaintiff was not involved in the panel's decision. The claim was delayed, but at least it was not also more expensive.