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Kentucky Supreme Court strikes down medical review panels, upholds ‘right-to-work’ law

Attorney General Andy Beshear (left) addressing the Kentucky Supreme Court in a 2017 hearing. | Photo by Joe Sonka

The Kentucky Supreme Court Thursday issued opinions striking down the law creating medical review panels for medical malpractice lawsuits in the state and upholding the so-called “right-to-work” law that prohibits requiring employees to pay union dues.

The court, however, did not release its much-anticipated ruling on whether the controversial public pension bill passed by the state legislature this year is constitutional. That law is currently blocked from going into effect, as Franklin Circuit Judge Phillip Shepherd sided with Attorney General Andy Beshear and unions for teachers and police officers by ruling that the bill was passed in a manner that violated the constitution and state law.

The Supreme Court unanimously affirmed Judge Shepherd’s opinion on the medical review panel bill, though three different opinions were written by the justices. The bill, passed in 2017, mandated that medical review panels issue opinions on the merits of a medical malpractice complaint before that claimant can file such a lawsuit.

As Shepherd had ruled, the court affirmed that the bill was unconstitutional because it would delay citizens’ access to the courts of the state for the adjudication of common-law claims.

The opinion striking down the medical review panel law was immediately criticized by Greater Louisville Inc. and the Kentucky Medical Association (KMA), both of which supported the bill.

“Greater Louisville Inc. has long advocated for legislative solutions that will help address the Commonwealth’s costly medical liability climate, which studies have shown to be one of the top 10 worst in the country,” Sarah Davasher-Wisdom, GLI’s chief operating officer, said in an emailed statement. “We will continue to pursue additional legal reforms that will grow our health and aging care business sectors and attract top talent.”

The KMA issued a statement indicating that the organization of physicians was “extremely disappointed” in the opinion, adding that Kentucky “now remains one of the few states in the country with no meaningful tort reform, including medical liability reform, making our system more susceptible to higher costs and frivolous lawsuits.”

The lawsuit challenging the medical review panel law was brought forth by the parent of a child with severe brain damage and cerebral palsy who alleged that this was caused by medical malpractice but was not allowed to immediately file her medical malpractice lawsuit in circuit court.

Thursday, the Supreme Court in a split 4-3 decision affirmed the 2017 ruling of Franklin Circuit Judge Thomas Wingate, which found the 2017 right-to-work law constitutional. The main opinion was written by Justice Laurance VanMeter. Justices Michelle Keller, Bill Cunningham and Samuel Wright dissented, arguing that the bill was passed in violation of the constitution related to special and emergency legislation.

The court also announced that it will grant a motion to hear the case involving “Marsy’s Law,” the constitutional amendment creating a crime victim bill of rights. The legislation was passed in this year’s session of the Kentucky General Assembly and approved by voters in a statewide referendum last week but is currently blocked from being enforced due to a ruling by Judge Wingate last month that its description on the ballot for voters was too vague.

The court will hear oral arguments in the Marsy’s Law case on Feb. 8.

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