Kentucky Medical Malpractice Review Panels Ruled Unconstitutional

By Christopher J. Robinette and Dani Wachtel | February 4, 2019

The Kentucky Supreme Court struck down Kentucky’s Medical Review Panels Act in December, which was enacted by the General Assembly in 2017, returning the process of reviewing medical malpractice claims back to the state courts for the foreseeable future and creating uncertainty about the future of medical review panels.

The state’s Review Panels Act required medical malpractice claimants to submit their case to a panel of three health care providers and one non-voting attorney as a condition precedent to filing a complaint in state court. Although the panel was directed to issue findings within 30 days of receiving the defendant’s submission of evidence, a claimant could have been stuck waiting at the courthouse gates for up to nine months before proceeding without having obtained the panel’s opinion. In August, it was reported that the state’s Medical Malpractice Review Panel was backlogged by hundreds of claims.

Claimants could only bypass this procedure after having secured the signed consent of all named defendants to either submit to binding arbitration or waive the panel process altogether. In a subsequent trial, the panel’s opinion was admissible as expert opinion evidence, but it was not dispositive.

The constitutional challenge to the new law came in early 2018 from Ezra Claycomb, who suffers from severe brain damage and cerebral palsy allegedly caused by medical malpractice. Before the Review Panels Act, he could have immediately filed suit in state court.

The Kentucky Supreme Court struck down the law in its entirety after finding that it unconstitutionally delayed a claimant’s access to the courts for the adjudication of their common-law personal injury claims. The court held the act contravened one of the “main purposes” of Section 14 of Kentucky’s Constitution, known as the open-courts provision, saying every person has access to the courts “without… delay.”

In striking down the Revew Panels Act, the court reasoned because “immediate access” to the courts is a “positive right…,” the law requiring a medical malpractice claimant to submit their case to panel review in order to file in state court was usurping their “freedom to access.”

The law created a “mandatory delay,” such that justice was administered neither expeditiously nor at all.

The court said requiring a claimant to secure the signed consent of all parties agreeing to binding arbitration or bypass the panel process put the claimant at the “mercy of the other parties involved” and seemingly foreclosed “every dispute-resolution process” available. The court noted although not all legislatively created delays are “per se unconstitutional,” where the judicial body ordains a remedy in certain areas, such as personal injury law, state legislators are not entitled to pass legislation that operationally shuts the courthouse doors. Three concurring justices opined they would have preferred a less sweeping condemnation of delay.

As a result, the Medical Review Panel page on the Commonwealth of Kentucky’s website now says it is no longer accepting Medical Review Panel filings, and it “anticipate[s] a high volume of inquiries regarding pending cases.”

Claimants who have not yet filed claims may now do so directly in state court. Presumably, patients who filed a claim in the medical panel review system will now be able to refile them in state court. Given the breadth of the court’s decision, it seems unlikely the General Assembly will be able to fashion another panel law that would withstand constitutional scrutiny.

The law’s sponsor, however, is considering an amendment to the state constitution to establish medical review panels.

We urge the sponsor not to proceed, and we urge other states not to enact malpractice panel laws. Mandatory panels add more delay and transaction costs to an already lengthy and expensive process, without resolving anything.

Studies conclude the average medical malpractice claim lasts about five years from event to resolution, with more money being spent to run the system than to compensate victims. Review panels increase the time to resolution by adding another layer of procedure and increase transaction costs as lawyers and experts for both sides try to convince an additional decision maker of the merits of their case.

Unlike many who oppose a particular tort reform, we believe reform is necessary. The tort system’s uncertainty, delay and transaction costs hurt both claimants and defendants. When designing a reform, however, it should address the actual problems with the system. Medical malpractice review panels only exacerbate them.

About Christopher J. Robinette

Christopher J. Robinette is professor of law at Widener University Commonwealth Law School in Harrisburg, Pa., and editor of “TortsProf Blog,” a member of the Law Professor Blogs Network. He specializes in writing in the areas of tort law and theory. He can be reached by e-mail at or by phone at 717-541-3993.

About Dani Wachtel

Dani Wachtel is a second-year student at Widener University Commonwealth Law School. She can be reached at:

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