Reforms in Kentucky have been attempted many times, but without much success. Though the Bluegrass State managed to pass the Kentucky Medical Malpractice Act of 1976 in response to the medical malpractice crisis of the 1970s, most of its provisions were quickly ruled unconstitutional by the Kentucky Supreme Court. These provisions included a cap on noneconomic damages, creation of a patient compensation fund, a requirement that physicians carry insurance and creation of a joint underwriting association for physicians who had difficulty in obtaining policies at reasonable rates.
Unfortunately, the law ran up against the Kentucky Constitution, which has an ‚Äúopen courts‚ÄĚ provision. According to Section 14 of the Kentucky Constitution, ‚ÄúAll 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 debate.‚ÄĚ It further prohibits the legislature from limiting the amount to be recovered for injuries resulting in death, or for injuries to a person or property and to provide that ‚Äú[w]henever the death of a person shall result from an injury inflicted by negligence or wrongful act, then, in every such case, damages may be recovered for such death, from the corporations and persons so causing the same.‚ÄĚ In Section 54, the wording is even blunter, declaring ‚Äúthe General Assembly shall have no power to limit the amount to be recovered for injuries resulting in death, or for injuries to person or property.‚ÄĚ These ‚Äúopen court‚ÄĚ provisions clearly prohibit the General Assembly from creating a cap on noneconomic or punitive damages. Additionally, the creation of a joint underwriting association and requirement for physicians to carry insurance were ruled unconstitutional,¬†as an unjustified exercise of the state‚Äôs police power to mandate the purchase of medical malpractice insurance.
Since then, Kentucky has made a few more attempts at reform. In 1988, the Kentucky General Assembly passed House Bill 551, which was intended to modify Kentucky law with respect to punitive damages. Once again, this was found to violate Kentucky‚Äôs ‚Äúopen courts‚ÄĚ provision. In 2006, conservative legislatures attempted an amendment to the Kentucky Constitution so that caps on noneconomic and punitive damages could be imposed. However, they were unsuccessful in getting the measure on a ballot for voter approval.
Smaller reforms are still being attempted in Kentucky. In January 2016, a bill was introduced by Kentucky State Senator Ralph Alvarado to create a medical review panel system for use in medical malpractice litigation.¬†Sen. Alvarado‚Äôs bill was ultimately passed by the Legislature, signed into law by the governor and became effective in June of 2017. The new tort reform revised the commonwealth‚Äôs medical malpractice system by creating a system of three-physician panels to review medical negligence claims for merit prior to their proceeding to the court system. The law requires plaintiffs to submit medical professional liability claims to the commonwealth‚Äôs Cabinet for Health & Family, which assigns the claim to a three-physician advisory panel that reviews the case and determines whether it has merit or is frivolous before issuing a nonbinding opinion as to whether the case should proceed. Within nine months of the panel selection, it is expected to issue its opinion. If the claim proceeds to court, the trial judge would decide the admissibility of the panel‚Äôs conclusion.
Of course, the medical review panel requirement was challenged in court, and Circuit Judge Shepherd ruled the law was unconstitutional in October of 2017 because it makes it more difficult for people to file lawsuits. His order banned the commonwealth from enforcing the law. ‚ÄúThe effect of the medical review panel process is not the reduction of frivolous negligence claims, but rather, the erection of barriers to the court system,‚ÄĚ Shepherd‚Äôs order read. ‚ÄúThose that cannot afford the additional delays and costs should not be prevented from pursuing their constitutional right to a ‚Äėremedy by due course of law.‚Äô‚ÄĚ
In November of 2017, the Kentucky Appeals Court issued an order allowing the enforcement of the medical review panel tort reform while it reviews an appeal of Shepherd‚Äôs ruling. The Appeals Court order means that, for now, the medical review process continues. According to filed court documents, there were at least 89 pending medical liability lawsuits that are subject to the medical review panel process at the time of the appellate court order. The Kentucky Supreme Court has agreed to hear the case, with a likely decision to come in 2018.