In its opinion filed on November 15, 2018, the Supreme Court of Kentucky (“Kentucky Supreme Court”) held that the Kentucky Medical Review Panel Act that was enacted in 2017 “delays access to the courts of the Commonwealth for the adjudication of common-law claims. Chapter 216C violates Section 14 of the Kentucky Constitution.”
Medical Review Panel Act
The Kentucky Medical Review Panel Act provides, in part: “All malpractice and malpractice-related claims against a health care provider, other than claims validly agreed for submission to a binding arbitration procedure, shall be reviewed by a medical review panel. Such an action may not be commenced in a court in Kentucky before: (a) The claimant’s proposed complaint has been presented to a medical review panel established under this chapter; and (b) An opinion is given by the panel. If the panel has not given its opinion within nine (9) months after the filing of the proposed complaint, the plaintiff may commence the action in court.” KRS 216C.020(l).
The medical review panel does not engage in any adjudication of a Kentucky medical malpractice claimant’s claim. Rather, the entire purpose and function of the panel is to generate an opinion about the merits of the claim, an opinion that may or may not have any evidentiary usefulness in a court of law. Chapter 216C does allow the parties to bypass medical review panel review, but only if all parties involved in the action agree.
Kentucky’s Bill of Rights, Section 14, of the Kentucky Constitution states: “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 Kentucky Supreme Court stated: “Based upon the plain text of Section 14, its history, and our longstanding precedent interpreting its reach, we hold that Section 14 acts as a restraint on the power of all departments of state government.”
The Kentucky Supreme Court stated that its duty is to presume that the statutes it address are constitutional, and the violation of the Constitution must be clear, complete and unmistakable in order to find the law unconstitutional.
The Kentucky Supreme Court stated that Section 14 protects “[t]he right of every individual in society to access a system of justice to redress wrongs,” and such protection “is basic and fundamental to our common law heritage.” The right to a remedy protected in Section 14 applies to actions for death and personal injuries, among other types of actions, and medical-malpractice claims fall under this category of claims.
The Kentucky Supreme Coufrt stated: “The General Assembly, through Chapter 216C, has created a mandatory delay affecting the ability of all medical-malpractice claimants to seek any redress, unless all parties either “validly agree … to a binding arbitration procedure” or agree to bypass the medical review panel process. Chapter 216C takes away the ability of medical-malpractice claimants to seek immediate redress in the forum of the claimant’s choosing. Chapter 216C contravenes one of the main purposes of Section 14—to prohibit legislatively created delays in the ability of a claimant to seek immediate redress in the courts of the Commonwealth for common-law personal injury, i.e., to prevent the people from being “ordered . . . not to proceed with particular causes and [from] justice [being] delayed.””
The Kentucky Supreme Court held: “Section 14 provides for courts to be “open.” Section 14 affords “every person for an injury done him in his . . . person . . . remedy by due course of law, and right and justice administered without. . . delay.” Forcing a medical malpractice claimant seeking immediate redress for an alleged common-law personal-injury to be at the mercy of the other parties involved when attempting to bypass the panel process cannot satisfy Section 14’s mandate that “[a]ll courts … be open” and every Kentuckian “shall have remedy by due course of law, and right and justice administered without . . . delay.”
“What makes the delay imposed by Chapter 216C unconstitutional is the General Assembly’s usurpation of a claimant’s freedom to access the adjudicatory method of his or her choosing at the time of his or her choosing. Chapter 216C is in contravention of Section 14 because no adjudication whatsoever takes place of a medical-malpractice claimant’s claim unless a valid agreement has been made to arbitrate or bypass the panel process. Claimants may only seek immediate redress for their common-law personal-injury claims through arbitration or the courts if, and only if, the adverse parties agree to proceed through arbitration or the courts. This is an untenable restriction on the exercise of the individual’s right to receive “remedy by due course of law, and right and justice administered without. . . delay” from an “open” court system. The mandatory imposition of a delay in seeking immediate redress for a common-law personal-injury claim in the adjudicatory forum of the claimant’s choosing cannot amount to “due course of law,” because it is as though no “course of law” is taking place whatsoever. No “right and justice” is being “administered” at all. And, not only have the courts become closed, in contravention of the mandate that they “shall be open,” but seemingly every dispute-resolution process for malpractice claims has been closed, unless all parties agree to arbitrate or bypass the panel process.”
The Kentucky Supreme Court held: “The entirety of Chapter 216C violates Section 14, and there is “no set of circumstances . . . under which the Act would be valid.’’ Therefore, we must declare the entire Act void as unconstitutional.”
Source Commonwealth of Kentucy v. Claycomb, 2017-SC-000614-TG, 2017-SC-000615-TG.
If you or a family member may be the victim of medical malpractice in Kentucky or in another U.S. state, you should promptly consult with a Kentucky medical malpractice lawyer or a medical malpractice lawyer in your state who may investigate your medical malpractice claim for you and represent you or your family member in a medical malpractice case, if appropriate.
Click here to visit our website to be connected with medical malpractice attorneys in your state, or call us toll-free in the United States at 800-295-3959.
Turn to us when you don’t know where to turn.