Last week the General Assembly passed Senate Bill 4, a measure that will greatly change the medical malpractice landscape in Kentucky, and Governor Matt Bevin is expected to sign it into law soon. The bill creates new entities known as “medical review panels” (hereinafter “MRPs”). Their purpose is to review any proposed medical malpractice claim, and render an opinion as to whether malpractice occurred, before a plaintiff brings their claim to a Kentucky court.
Supporters claim the legislation will weed out frivolous medical malpractice cases and help lower malpractice insurance rates for healthcare providers. Critics claim the legislation is an unconstitutional limitation on a citizen’s right to a jury trial and might run afoul of the “jural rights doctrine.” Both sides wholly expect the legislation will be challenged as unconstitutional, but they disagree as to the potential outcome of that challenge. This post is not intended to support or criticize the new law as a matter of policy, but to explain in great detail the new steps and challenges that must be considered in pursuing a medical malpractice claim in Kentucky.
Previously, a potential plaintiff in a medical malpractice claim only needed to file a complaint in a court of competent jurisdiction. Now a potential plaintiff must first bring a “proposed complaint” to the Cabinet of Health and Human services and pay a fee that will be determined by the Cabinet. Within ten days of receiving the proposed complaint, the Cabinet must serve a copy of the proposed complaint on all healthcare providers named as defendants. “Healthcare providers” is an expansively defined term, which includes hospitals, nursing homes, ambulatory services, abortion clinics, physicians, dietitians and nutritionists, paramedics and emergency service providers, radiologists, chiropractors, dentists, registered nurses, pharmacists, psychologists, optometrists, physical therapists, medical laboratories, speech pathologists, and social workers.
After the defendants receive notice, all of the parties may agree to waive the MRP requirement so long as the agreement is in writing. If at least one party to the action does not agree to waive the MRP, then the process moves forward. The MRP is led by an attorney chairperson. The chairperson does not have the ability to vote, but is in charge of managing the MRP. After all defendants are served with the proposed complaint, the parties are offered 20 days to reach an agreement as to who will serve as chairperson. If the parties are unable to agree within 20 days, a party can move the Cabinet to draw five names at random from a list of participating attorneys practicing in the Supreme Court district where the alleged malpractice occurred. The party making this request must pay a $25 fee. Beginning with the plaintiff, each party alternates striking an attorney from the list until only one name remains. The remaining attorney becomes the chairperson of the MRP unless that person objects to serving within 15 days. The selected chairperson must demonstrate good cause for why they are unable to serve before being released from service.
Once the chairperson is finally selected, they must craft two lists with three “natural person healthcare providers” (hereinafter “panelists”) on each list for a total of six potential panelists. The chairperson must take reasonable care to select potential panelists that are licensed in Kentucky and practice in the same field of medicine as the defendants if possible. The parties may suggest names of potential panelists, but the chairperson is not required to use those suggestions. The chairperson must send both lists to all the parties within five days of the chairperson’s appointment. The plaintiff will then strike one name from each list and the defendant will strike one name from each list. In the event there are multiple plaintiffs or multiple defendants, the side with multiple parties must exercise their strikes collectively. The two remaining names will become panelists and those two panelists must agree on a third panelist to serve. Any panelist that is selected may be excused for good cause or if there is a conflict of interest.
At the end of the selection process, each party has ten days to object to the composition of the panel. The chairperson will sustain or overrule the objection. Once the panel is finalized, the plaintiff has 60 days to submit all nonprivileged evidence. After the plaintiff has concluded submitting evidence, the defendant has 45 days to submit all nonprivileged evidence. No party may take the deposition of a witness without prior authorization from the chairperson, but the chairperson shall not unreasonably deny a party's request to take a deposition. At any point after it is formed, the MRP has the authority to subpoena records, call hearings, and consult with other medical professionals. If the MRP engages in any evidence gathering itself, the parties have a right to review this evidence. At all times during the evidence gathering stage the Circuit Court that would ordinarily have jurisdiction over the matter has limited jurisdiction to compel or limit the evidence submitted. For example, the Circuit Court could quash a subpoena duces tecum if the request is overly broad, or could compel the disclosure of documents being withheld.
After all the evidence has been submitted to the MRP it must render one of three opinions: that the defendant failed to act according to the applicable standard of care and that failure was a substantial cause of plaintiff’s injury; that the defendant failed to act according to the applicable standard of care but that failure was NOT a substantial cause of plaintiff’s injury; or the defendant did act according to the applicable standard of care. The chairperson and panelists on the MRP are entitled to fees for their work which should not exceed a total of $3,050, excluding travel expenses. Whichever party obtains a favorable ruling is responsible for paying these fees. No matter the outcome of the opinion, the plaintiff still has a right to pursue a medical malpractice claim in a court of competent jurisdiction after the final MRP opinion is rendered.
The chairperson has the authority to extend any of the above time periods for submission upon a motion seeking an extension for good cause. However, regardless of deadlines and all other time limitations, a final opinion must be rendered within nine months of the filing of the proposed complaint or a plaintiff may proceed with filing a civil complaint in a court of competent jurisdiction. If the plaintiff chooses to file a civil complaint, either party may move the trial court to admit the MRP opinion as evidence in the same manner a party would move to admit the testimony of an expert witness. Although media reports surrounding the passage of SB 4 suggested the trial court has discretion in admitting the opinion, those reports are inaccurate. “Upon motion, the trial court shall admit the panel’s opinion into evidence as an expert opinion, subject to cross-examination, upon a written finding that the evidence would assist the trier of fact and otherwise comply with the Kentucky Rules of Evidence.”
It is highly doubtful that any trial judge will determine the opinion will not aid the trier of fact, considering it is the expert opinion of three experts, and the MRP opinion should qualify under Daubert. Even though the opinion is “subject to cross-examination,” a written opinion cannot answer questions in open court. As a point of practice, the party seeking to admit the opinion may wish to subpoena a panelist and make them available to testify in order to avoid a hearsay objection, unless the report is considered a hearsay exception under KRE 803(8). The party which subpoenas a panelist is responsible for compensating the panelist for time spent testifying. There are other points of practice that may become an issue. For example, how does a plaintiff amend a proposed complaint after new evidence comes to light? Can a plaintiff add new defendants under the proposed complaint, and if so, what rights do the new defendants have in the panel selection process after the panel has been selected? Does the nine month clock restart if the proposed complaint is amended? Can a defendant strike the civil complaint if it differs from the proposed complaint?
In conclusion, the medical malpractice practice area is primed for a tectonic shift in Kentucky. It is unclear what types of constitutional challenges will be raised (although a challenge based on the jural rights doctrine is inevitable). It is also unclear if the panels will be available until a constitutional challenge is settled, and what effect the introduction of these panels will have on malpractice insurance rates in Kentucky.
The attorneys at Barsotti & Manley, PLLC, strive to inform our fellow Kentuckians of major shifts in Kentucky law. We serve Anderson, Boyle, Casey, Jessamine, Lincoln, Mercer, Washington, and Woodford Counties; including the cities of Danville, Harrodsburg, Lawrenceburg, Liberty, Nicholasville, Springfield, Stanford, and Versailles.