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Is the Medical Review Panel Act Unconstitutional?


In August, the Kentucky Supreme Court heard oral arguments regarding the constitutionality of the Medical Review Panel Act (MRP Act). The Franklin Circuit Court’s October 2017 ruling stuck down the MRP Act as unconstitutional in Claycomb v. Commonwealth of Kentucky, Cabinet for Health and Family Services. The legal issues were important enough for the Supreme Court to take the case from the Court of Appeals and review it immediately.

Brett Oppenheimer has been monitoring the progress of the MRP Act. With a Supreme Court ruling around the corner, this blog will take you on a deep dive regarding the provisions of the MRP Act and the reasoning the Franklin Circuit Court found it to be unconstitutional.

What Is the MRP Act?

The MRP Act was enacted to combat the perceived threat to the health industry from frivolous medical malpractice lawsuits.

Under the MRP Act, a medical malpractice complaint must be reviewed by a panel consisting of one attorney and 3 health care providers. The plaintiff must submit all evidence to the panel within 60 days of its formation. The defendant then has 45 days to submit their evidence.

The lawsuit is on hold until the panel reaches a decision. However, the panel must render its decision within 9 months. Even if the panel issues a late decision, the trial court must admit the decision as an expert opinion.

The party receiving a favorable decision must pay the panel. The chairperson is paid $250 per day, but not more than $2,000, plus reasonable travel expenses. Other panel members are paid $350 each, plus travel expenses. Panel members called as a witness in the lawsuit are paid further compensation.

Kentucky’s Equal Protection Clause

The Kentucky Constitution prohibits laws that deprive citizens equal protection of the law. The MRP Act does not involve a suspect, or quasi-suspect classification. Accordingly, a law regulating medical malpractice claims violates the Kentucky Constitution’s equal protection clause if it is not rationally related to a legitimate state purpose.

The Franklin Circuit Court held that the MRP Act was not rationally related to increasing the number of physicians in Kentucky by reducing the number of frivolous medical malpractice lawsuits.

The court reasoned that the act doesn’t reduce frivolous malpractice lawsuits as much as it discourages legitimate ones:

“[The MRP Act] discourages the pursuit of some meritorious claims while allowing other frivolous claims to proceed. That is the very definition of arbitrary and capricious.”

The court saw the MRP Act as imposing a major financial burden on the plaintiff, possibly deterring legitimate claims. It also questioned if frivolous lawsuits truly scared off physicians. The court recognized that the legislature’s findings suggested Kentucky had more physicians per capita than other states.

Kentucky’s Special Legislation Prohibition

The Kentucky Constitution prohibits any law “which favors a special interest to the detriment of the rest of society.” The Franklin Circuit Court likewise held the MRP Act violated this constitutional provision by protecting “the economic interests of the health care industry at the expense of consumers, with no demonstrable benefit to the public at large.”

Separation of Powers

The Kentucky Constitution gives its branches of government distinct powers, and that “[no branch] shall exercise any power belonging to either of the others …” The Constitution grants its Supreme Court “power to prescribe … rules of practice and procedure for the Court of Justice.”

The Franklin Circuit Court viewed MRP Act’s requirement for admitting a panel’s decision as an expert opinion to be an attempt to circumvent Kentucky’s Rules of Evidence on expert opinion evidence – a power reserved for the judiciary.

Open Courts Doctrines

The Kentucky Constitution protects jury trials and access to the legal system for all persons, and prohibits laws that restrict the right to recover under common law personal injury or death cases.

However, the Franklin Circuit Court held that the MRP Act created unconstitutional barriers to medical malpractice claims, which is a common law cause of action. Significantly, the act requires plaintiffs to wait several months for a panel to deliberate. Even if the plaintiff receives a favorable decision, they must pay the panel up to $3,050 in fees. As a result, all medical malpractice claims, regardless of merit, become more protracted and expensive.

How Could the MRP Act Pass Constitutional Muster?

The Supreme Court could uphold the MRP Act if it found that the Franklin Court misapplied Kentucky law. The argument here is that the equal protection clause has a lower standard than what the Franklin Circuit Court imposed. If using medical review panels to reduce frivolous lawsuits conceptually makes sense, the court should not question what factors the legislature relied on to reach its decision. Otherwise, the court would be impermissibly weighing in on the political process – a function reserved for the legislature.

Zealous Medical Malpractice Advocacy in Kentucky

The provisions in the MRP Act would have a significant impact on whether or not you can recover damages for your medical malpractice claim. That’s why you need a Louisville medical malpractice attorney who stays current on the law. Brett H. Oppenheimer, PLLC, is closely monitoring Kentucky law for updates in this area. Regardless of the outcome, he will continue to fiercely advocate for your rights.

For a free consultation, call Brett H. Oppenheimer at (502) 242-8877.

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