Kentucky Supreme Court Rules Medical Review Panels Unconstitutional

The Kentucky Supreme Court in a 7-0 decision ruled medical review panels were unconstitutional in that they violated the “open courts” provision of the Kentucky Constitution. In the regular session of 2017, the General Assembly established medical review panels. A person that was injured due to the negligence of a health care provider was required to have the merits of the case evaluated by a panel of experts. The panel was required to render its decision within 9 months. The court noted that the medical panel’s opinion “may or may not have any evidentiary usefulness in a court of law.”

Section 14 of the Kentucky Constitution states: “All courts shall be open, and every person for an injury done him in his lands, goods, person or reputation, shall have remedy by due course of law and right and justice administered without sale, denial or delay.” One of the primary arguments by the Cabinet was that “delay” was constitutionally permissible so long as it was reasonable. The court was unconvinced on the reasonableness argument choosing to give the text its plain meaning instead.

The Court also acknowledged that a majority of states had found medical review panels to be constitutional. Yet, only Indiana, Maine and Montana had textually similar “open courts” provisions within their respective constitutions. After reviewing the decisions in those states, the court found the reasons to be unconvincing. The court found that there was no way to save the act ruled the statute unconstitutional in its entirety.

While the opinion was unanimous, three justices expressed reservations about the breadth of the majority’s ruling. Justice Cunningham thought the act should be invalidated as “special” legislation—an act that benefits a particular business or person. And Justices Keller, Cunningham, and Wright agreed that a shorter delay might meet Constitutional requirements.

The Court’s willingness to read the “open courts” provision as strictly as it did means that future efforts to impose any kind of restriction on a litigant would likely be invalidated under a similar rationale. The opinion reads almost like the Court is attempting to preempt future enactments by the General Assembly regarding civil suits. A shorter delay and broader application might have three votes. Interesting.