Previous Medical Review Panel Law
In 2016 the Kentucky General Assembly passed Senate Bill 6 which created in chapter 216C of the Kentucky Revised Code, a requirement for a “Medical Review Panel” (“MRP”) on all medical related cases. At the time of its passage, many argued that the panel system was an unconstitutional infringement on the Kentucky “Jural Rights Doctrine” which constitutionally protects access to the court system and the right to a jury trial.
Under the new MRP system, before a complaint could be filed against a doctor, hospital, or nursing home, an MRP filing was required to be made with the state. Once filed, this triggered a process whereby an attorney would be assigned as the panel chair. The attorney would then propose two lists of experts – one list to the plaintiff first and one to the defendant. Each side would strike a name and swap lists. Once an expert from each list was selected, those experts would select a third expert. Together, these three experts constituted the panel.
The panel was required to review the medical record, depositions and other evidence and give an opinion on liability and causation.
The Medical Malpractice bar immediately sued to stop the panel system and won, having the entire law declared unconstitutional.
In the 2019 session, the plaintiffs’ bar, nursing homes, hospitals and doctors came together and agreed on a substitute bill designed to stop potentially frivolous lawsuits and reduce malpractice expenses. Under the new agreed upon law, plaintiffs will be required to file a “Certificate of Merit” with each complaint against a doctor, hospital or nursing home. The certificate requires the affiant to certify that:
“The claimant has reviewed the facts of the case and has consulted with at least one (1) expert qualified pursuant to the Kentucky Rules of Civil Procedure and the Kentucky Rules of Evidence who is qualified to give expert testimony as to the standard of care or negligence and who the claimant or his or her counsel reasonably believes is knowledgeable in the relevant issues involved in the particular action, and has concluded on the basis of review and consultation that there is reasonable basis to commence the action.”
The new law also provides for situations where either 1) there are no experts who can give an opinion due to conflicts (think pediatric neuro oncology – not many of them) or 2) where the statute of limitations does not allow enough time to get the opinion. In both cases, safeguards were put in place to prevent gamesmanship.
In sum, the new law accomplishes goals that everyone involved in civil justice agrees are laudable – providing the proper forum for full recourse to a person injured by the negligence of a doctor, hospital or nursing home but also making sure that there is a colorable basis for a finding of negligence before hauling everyone to court.
What’s Next for the Legislature?
This is the first step in common sense Civil Justice Reform that Kentucky is working on – in the next legislative session look for changes in the law to allow for physician apologies, the “Responsible Party Act” whereby you only sue the doctor or provider you believe is at fault and other measures that protect the seventh amendment while keeping costs low and the potential for real changes to business courts. Kentucky has an unfortunate and undeserved reputation as being a place where business have a tough time getting a fair day in court. These changes, agreed upon by all parties involved in the civil justice system, will put Kentucky back on top as a business friendly yet fair state.