Kentucky Supreme Court Ruling Protects Malpractice Victims' Right to Trial

 Posted on December 11,2018 in Medical Malpractice

By Lindsay Proskey 

Tort reform legislation requiring Kentuckians to submit medical malpractice claims to a review panel of three physicians before they can file lawsuits was recently struck down by the Kentucky Supreme Court for violating the state constitution. 

Tort reform efforts aim to reduce the ability of victims to bring tort litigation or to reduce damages they can receive. Kentucky state Sen. Ralph Alvarado (a practicing physician and lawmaker) has sponsored several pieces of legislation, including the Medical Review Panel Act, to deter plaintiffs from suing healthcare professionals.  

Proponents touted the Medical Review Panel Act as a step toward decreasing what they considered to be frivolous medical malpractice claims that have allegedly increased liability insurance and driven physicians from the “plaintiff-friendly” state. Before a plaintiff could even file a lawsuit, the Act required them to submit all medical malpractice claims to a panel of three healthcare professionals, who would review the merits and make non-binding recommendations to the court. However, the panelists could come from any field – a panel of three social workers could decide whether a surgeon was negligent, while three surgeons could review a case involving a social worker.

Tonya Claycomb challenged the Act, arguing that she could not immediately file a medical malpractice lawsuit against a Louisville hospital for allegedly causing her newborn child Ezra’s severe brain damage and cerebral palsy. Tonya wanted to recover the costs of treating Ezra’s catastrophic injuries but refused to wait out the nine-month claim review process, suing instead to overturn the state law. She won in the Franklin Circuit Court last October when Judge Phillip Shepard said that the law was “strong on speculation but short on rationality,” and found 13 separate constitutional violations.

The parties argued before the Kentucky Supreme Court, and on November 15, 2018, the court struck down the Act for unconstitutionally delaying access to the courts and infringing upon state constitutional rights. The justices said that the Act’s nine-month review period created a “mandatory delay” in violation of the constitution’s “open courts provision,” since the claimant could not access the courts or exercise any legal rights during claim review. The court explained that the “mandatory delay” could not amount to “due process of law,” because it was as though “no course of law” was taking place at all. The opinion’s lengthy discussion about the Kentucky constitution and the English common law indicates that lawmakers may face tough challenges in creating tort reform legislation that passes constitutional muster.

 “The effect of the medical review panel process is not the reduction of frivolous negligence claims, but rather the erection of barriers to the court system,” wrote Judge Phillip Shepherd.

“The delays aren’t fair to the citizens of Kentucky, many of whom may have been catastrophically injured or killed by negligence and whose families may need resolution of their claim in order to survive,” said Louisville attorney Hans Poppe.

Constitutional law expert Robert Peck of the Center for Constitutional Litigation, P.C. stated, “I think those who oppose tort reform in Kentucky can read this decision as a good sign that the court will take the arguments about constitutionality very seriously.” 

Earlier this year, the state Senate passed an Alvarado-sponsored bill that would essentially require all medical malpractice complaints to receive an expert’s endorsement through an “affidavit of merit.” The legislation also caps the contingency fees owed to plaintiffs’ attorneys at 33 percent in medical malpractice lawsuits. 

Alvarado will likely also consider legislation seeking to cap noneconomic damages, such as pain and suffering, mirroring past reform efforts in several states. For example, the Illinois Supreme Court overturned medical malpractice reform legislation[1] in 2010, finding that the legislators encroached upon the function of the judiciary by enacting damage-reducing legislation. In Georgia, the state supreme court struck down legislation limiting noneconomic damages for unconstitutionally infringing upon the claimant’s right to a jury trial, which includes the right to all damages awarded by the jury[2].  

Following the Kentucky Supreme Court’s decision, state lawmakers will face challenges clearing the court’s strict interpretation of the state constitution. “Kentucky has a jural rights provision in their constitution which shuts down much of the tort reform that has been enacted in other states,” Peck said. “[The Kentucky Supreme Court has] taken that provision very seriously, and it goes beyond the right to a trial by jury. It’s different from [the MRP Act], but I don’t see how caps can survive the jural rights provision.” 

Alvarado said that Kentuckians could also amend these constitutional provisions via voter referendum. But Peck commented that several states have made similar attempts and failed miserably, like Oregon in 1999 and Texas, where the vote passed by less than 1 percent.  “Both sides in Texas spent a great deal of money on the issue and it barely passed,” said Peck. 

In the wake of this decision, people with medical malpractice claims can now file in court, where existing laws already hold attorneys liable for “frivolous litigation.” 

[1] LeBron v. Gottlieb Mem. Hosp., 930 N.E.2d 895 (Ill. 2010).

[2] Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt, 691 S.E.2d 218, 220 (Ga. 2010).