Medical Review Panels Unconstitutional in Kentucky, Constitutional in Indiana

Legislators in Indiana and Kentucky have enacted laws mandating medical review panels in cases where individuals allege they have been harmed by a healthcare provider’s negligence, commonly known as medical malpractice. Under legal challenge, Indiana found the legislation constitutional, whereas Kentucky did not.

Long ago, prior to enacting this legislation, Indiana’s and Kentucky’s founders provided as part of their Constitutions that their courts should be “open” and justice administered freely and “without delay.”

Article I, Section 12 of the Indiana Constitution provides:

All courts shall be open; and every man, for injury done to him in his person, property, or reputation, shall have remedy by due course of law. Justice shall be administered freely, and without purchase; completely and without denial; speedily, and without delay.

Similarly, Article I, Section 14 of the Kentucky Constitution provides:

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.

In 1980 the Indiana Supreme Court upheld the constitutionality of the Indiana Medical Malpractice Act and its medical review panel requirements in the case of Johnson v. St. Vincent Hospital. In 2018 the Kentucky Supreme Court found its own law, which was substantially similar to Indiana’s law, unconstitutional in Kentucky v. Claycomb.

In Johnston the Indiana Supreme Court found that the constitutionally guaranteed “without delay” should be qualified when it comes to healthcare providers, because healthcare providers occupy a special place in our society according to the legislature. The Indiana Supreme Court noted then that “we do not sit to judge the wisdom or rightness of its underlying policies” when “dealing with the constitutionality of a statute of our state.” The Court observed the law’s aim to “preserve health care services for the community,” the “threatened loss to the community of health care services,” physicians purportedly being “totally unable to purchase insurance coverage,” surgeries being cancelled in rural areas, emergency services being discontinued at some hospitals, and healthcare providers “[becoming] fearful of the exposure to malpractice claims.”

In focusing on Indiana’s constitutional guarantee that individuals have a remedy for injury, the Indiana Supreme Court started with a discussion of a pronouncement by the Supreme Court of the United States that a person has no common law right to any rule of the common law. Presumably the Indiana Supreme Court was establishing with this discussion that the legislature, as opposed to the Court, has the right to decide the importance of an individual’s right when it comes to the common law right to a remedy in spite of the explicit guarantee contained in Indiana’s Constitution.

In marked contrast, the Supreme Court of Kentucky observed that while there is no federal common law right to seek redress for harm, there most certainly is a State right if a State chooses to guarantee one, noting “the law governing rights, duties, and liabilities between individuals with respect to the protection of ‘person, property, or reputation’ was deemed to be committed or reserved to the states.”

After noting that an individual’s right to seek redress is not absolute, the Indiana Supreme Court noted that there are already delays associated with legal process in court. Therefore, the further restrictions placed upon individuals to go through medical review panels before being allowed to proceed in court was “not so restrictive as to violate the right to access to courts guaranteed by Art. I, § 12 of our Constitution.”

The Kentucky Supreme Court saw it differently in Claycomb. The Court started its opinion with the importance and significance of the Kentucky Bill of Rights, noting “Of all the rights guaranteed by state constitutions but absent from the federal Bill of Rights, the guarantee of a right of access to the courts to obtain a remedy for injury is possibly the most important.” The Court noted the medical review panel process was “a mandatory process to delay certain medical-malpractice claimants’ ability to access immediately the courts of the Commonwealth.”

With these two observations, the Court turned its focus solely to the right of redress guaranteed by the Kentucky Constitution. The Court noted that the guarantee applies to both the judiciary and the legislative branch of government and that to characterize the guarantee as only applying to the judiciary and not the legislature

is to ignore the common understanding of the original framers and the original meaning of the words they employed—all branches of government can oppress the people and such oppression must be guarded against.

Of importance to the Kentucky Supreme Court’s decision was Kentucky’s explicit constitutional guarantee and over-arching principle regarding legislation found in Section 28 of Kentucky’s Bill of Rights (originally Section 26):

To guard against transgressions of the high powers which we have delegated, WE DECLARE, that everything in this article is excepted out of the general powers of government, and shall forever remain inviolate; and that all laws contrary thereto, or contrary to this Constitution, shall be void.

Interestingly, Indiana does not have the same explicit constitutional provision even if the Indiana framers were providing individual citizens with a “Bill of Rights.”

Ultimately, the Indiana Supreme Court implicitly decided that “without delay” means without unreasonable delay and that submitting claims to a medical review panel “is one reasonable means of dealing with the threatened loss to the community of health care services in this situation,” even if it adds further delay and prevents an individual from filing a lawsuit against a medical provider for many months, if not years.

Presumably, then, in Indiana it is theoretically possible that the construction industry, manufacturing industry, automotive industry, trucking industry, financial industry, and insurance industry could lobby the legislature to pass legislation allowing review panels for many other types of claims. Under the reasoning of the Indiana Supreme Court in Johnston, such a law should pass constitutional muster, so long as the law’s proponents could provide evidence that further restrictions on a Hoosier’s right to seek a remedy would be reasonable based upon the impact to the community and those industries of having to defend themselves against lawsuits.

With the strong pronouncement by the Kentucky Supreme Court in Claycomb, Kentucky citizens should be assured that their Court will strike down legislation that places any roadblock in the way of an individual wanting to seek immediate redress in court “without delay,” regardless of the inherent delays that may already be associated with seeking redress in courts.