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Kentucky Supreme Court Rejects Medical Malpractice Approval Panel

MedMal

There has an effort in our country to limit the number of medical malpractice lawsuits against doctors. This is not only true in Florida, which had damage caps in place for years, but it is also true of other states.

In Florida, this is, in part, achieved by requiring the plaintiff provide an expert witness to testify on their behalf and say that the standard of medical care provided to the patient did indeed rise to the level of malpractice. Kentucky, however, required every malpractice plaintiff submit their complaint to a panel for review. This panel would decide whether or not the case had enough merit to go before a jury.

The law, passed in 2017, was struck down by the Kentucky Supreme Court for denying injury plaintiffs access to the court.

Getting Rid of Frivolous Lawsuits 

The mantra of those who support legislation targeted at medical malpractice plaintiffs has always been getting rid of “frivolous” lawsuits. While they’ve never needed to show evidence that these frivolous lawsuits are a burden to the system or, for that matter, even exist, they often insist that something must be done about them.

 

The law, entitled SB 4, was an attempt to do just that. Ostensibly, it makes a certain kind of sense. A review panel takes a look at the merits of the plaintiff’s case and determines whether or not the case may proceed to trial. However, in this case, it was a panel of medical professionals who were assigned the duty of determining which lawsuits can proceed and which were denied.

Patient advocate groups and trial lawyers, of course, believed the new legislation made the process wholly unfair. For one thing, lawyers were expected to try the case twice delaying recovery for their clients and, for another, the process was being overseen by medical professionals, who may have a perceived bias against medical malpractice cases.

In a rare unanimous decision, the Kentucky Supreme Court justices agreed that the law was unconstitutional, though not all for the same reasons. The problem with the law is that the Kentucky Constitution gives every Kentucky resident the right to have open access to the courts if they are injured by another party. Indeed, the very verbiage of the Constitution was used in the Justices’ opinions when striking down the law.

Altering the Constitution 

Since open access to the courts is a Constitutional Right under Kentucky’s Bill of Rights and the U.S. Constitution, legislators will look to amend the Kentucky Constitution in order to reinstate the legislation. This will not be an easy. Effectively, it means altering Kentucky’s Bill of Rights to remove rights from Kentucky residents.

Under the law, the plaintiff had to file a claim with Cabinet for Health and Family Services for review. But with over 500 cases filed while the law was still in effect, a massive backlog impeded a number of plaintiffs from accessing the courts in a timely manner.

Tampa Medical Malpractice Attorneys 

The Tampa legal team at Masterson, Hoag & Smith, P.A. has successfully pursued hundreds of cases for those injured by medical negligence. Please feel free to give us a call or contact us for a free case evaluation.

Resources:

courier-journal.com/story/news/2018/11/15/kentucky-supreme-court-strikes-down-medical-review-panels/2005104002/

courier-journal.com/story/news/2017/06/27/medical-malpractice-cases-face-new-hurdle-june-29/412736001/

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