Posted August 9, 2018 12:53 PM

Law requiring medical review panels for med-mal suits challenged

By Adam Beam
Associated Press writer

FRANKFORT, Ky. — After Ezra Claycomb was born with severe brain damage and cerebral palsy, his mother considered filing a medical-malpractice lawsuit. But in 2017, Kentucky’s Republican-controlled legislature passed a law requiring all such lawsuits first be reviewed by a panel of doctors.

The law gave the panel nine months to issue an opinion on whether the lawsuit is frivolous — yet Section 14 of the Kentucky Constitution says every person has access to the courts “without ... delay.”

Ezra’s parents sued to block the new law, making Kentucky the latest state to have its medical review panels challenged in court.

A circuit judge agreed the law was unconstitutional. But Republican Gov. Matt Bevin appealed that decision to the state Supreme Court, which heard arguments Wednesday.

“This is a modern day version of the poll tax,” said attorney J. Guthrie True, who represents the Claycombs in a lawsuit he says has class-action status to represent all patients. “This has one purpose, and that is to obstruct the courthouse door.”

Matthew Kuhn, an attorney for the governor, said the state constitution’s ban on delaying access to the courts only applies to the court system itself. It does not apply to the legislature, which he says has the power to impose rules on the court system.

He noted Kentucky has other laws that limit when people can file lawsuits. For example, heirs wanting to sue the executor of an estate must wait at least six months after the executor has been appointed before they can do so. Kuhn said that law has never been challenged.

Kuhn said the medical review process is helpful because it gets the two sides talking before a lawsuit is filed, which could jumpstart settlement discussions.

It also makes sure both sides have all the evidence collected before they go to a judge.

“I think delay is the wrong word here,” Kuhn told the court. “The medical review panel process, if you are going to use it, is going to speed up.”

According to the National Conference of State Legislatures, 17 states and the Virgin Islands require that medical liability or malpractice cases be heard by a screening panel before trial.

Kentucky’s medical review panels have been in place for a year. Since then, 531 lawsuits have been filed, 11 percent have been assigned to a medical review panel and findings have been issued in 3 percent, according to a review of court records by the (Louisville) Courier-Journal.

Kuhn did not mention those statistics in court Wednesday, but he said any hiccups with the law should be addressed by the legislature, not the courts.

Justice Lisabeth Hughes seemed surprised to hear Kuhn argue that the state constitution’s ban on delaying access to the courts does not apply to the state legislature, asking: “Isn’t it directed at the people?” Justice Michelle Keller was interested in Kuhn’s argument that “without delay” should be read as “without unreasonable delay.”

“It’s interesting to me that you all want us to read language into the constitution,” she said. Kuhn said he does not want the court to “read into” the constitution, but apply the same standard it does to other laws.

True argued that the medical review panel law doesn’t pass the “rational basis standard,” which requires a law to be “rationally related to a legitimate state interest.” But Kuhn said the legislature passed the law because Kentucky has a doctor shortage and wants to encourage more doctors to practice in Kentucky.

True said that argument is faulty, because Kentucky has more doctors per capita than Indiana and Texas, both states that have medical review panels.

Several justices noted the court gives the legislature great discretion in passing laws with Hughes saying “we are not some super-legislature.”

“I don’t think you are a super-legislature, but you are not unhinged from the facts,” True said.

The court did not issue a decision Wednesday. There is no deadline for them to issue a ruling.

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