Mid-Atlantic Health Law TOPICS

When Tonya Claycomb’s son was born with severe brain damage in a Louisville, Kentucky hospital, Ms. Claycomb immediately filed a medical negligence lawsuit against those she believed responsible for her son’s condition. However, a Kentucky law stood in her way.

Under Kentucky’s Medical Review Panel (MRP) Act, prior to filing a medical negligence lawsuit in state court, there is a requirement to submit the claim and supporting evidence to a three-person medical review panel. The panel then has to opine on whether or not some medical negligence has occurred causing injury.  Only after the panel renders its opinion, or fails to do anything for nine months, can a lawsuit be filed in a Kentucky state court.

A.  The Case

Unwilling to wait, Claycomb sued in state court seeking to overturn the MRP Act as unconstitutional, arguing that it impeded her right to a speedy civil trial, and violated the equal protection and due process clauses (Section 14) of the Kentucky Constitution.

In November 2018, the Kentucky Supreme Court in Kentucky v. Claycomb, unanimously concluded that the Kentucky MRP Act was unconstitutional. Specifically, the court found that people were unable to seek immediate redress through the judiciary, and consequently the notion of “justice without delay” was being impeded.

The court reasoned that, even though there are natural delays in judicial proceedings, the Act was unconstitutional because it created a mandatory delay, and the legislative branch of the Kentucky government could not enact legislation to contravene the civil rights guaranteed in Section 14 of the Kentucky Constitution, including the right to a speedy trial.

While the Kentucky Supreme Court’s decision was unanimous, several of the Kentucky justices disagreed with some of the reasoning in the majority opinion that “any delay to bringing a personal injury or wrongful death action is unconstitutional.” For example, they reasoned that they could not say, “any measure the legislature may create to impose procedural steps prior to the bringing of an action…would always be unconstitutional.”

B.  Why Is Kentucky v. Claycomb Significant?

Historically, more than thirty states have at one time or another enacted medical review panel laws similar to Kentucky’s. However, due to repeals and invalidation, only sixteen states still have such laws currently in use. The general trend in the United States seems to be moving away from medical review panels.

Proponents of medical review panels argue that without them, frivolous and meritless litigation will ensue, clogging up state courts. Conversely, opponents of these panels argue that they are typically unconstitutional as they impede access to the courts, and that they over complicate and add to the costs of the litigation process for justified claims.

C. What About Maryland?

Maryland does not utilize medical review panels. Instead, Maryland relies on a “Certificate of Merit” system. Under this system, a person must first obtain a certificate of merit by a qualified medical expert that shows the claim has facts that would support a legal judgment. The certificate must typically contain a medical opinion that a health care provider breached the standard of care and caused an injury. The certificate of merit is then filed with the Maryland Health Care Alternative Dispute Resolution Office.

While a person can actually file a medical malpractice claim in Maryland before obtaining and filing this certificate of merit, failure to comply with the requirement within ninety days of the commencement of lawsuit, will result in the lawsuit’s dismissal with prejudice. As such, it is routinely standard procedure in Maryland to obtain and file certificates of merit contemporaneously with the commencement of litigation. 

Maryland law also requires that claims against medical professionals in Maryland must  be filed with the state’s Health Care Alternative Dispute Resolution Office for arbitration proceedings. However, unlike the Kentucky MRP Act, people filing suit in Maryland can unilaterally waive out of these arbitration proceedings, provided that they file their certificate of merit.

Proponents of Maryland’s certification system argue that the certification requirement is reasonable. That is, the cost to a claimant to obtain a certificate of merit is nominal, and the system discourages unnecessary lawsuits, as physicians will generally not affirm a frivolous matter as having merit.

Conversely, opponents of the certification requirement argue that the requirement places an undue burden on people, who might not always have all of the resources available to them to prove their claim at the outset. For example, a person may not have access to all available medical records at the outset of an investigation. Similarly, testimony of the doctors and nurses who were present at the time of the injury might be unavailable before a discovery process is commenced in litigation.

Notwithstanding the pros and cons of Maryland’s certification system, it is unlikely that Kentucky v. Claycomb will result in the unwinding of Maryland’s current requirements.

Justin P. Katz
410-576-4102 • jkatz@gfrlaw.com