Generally speaking, it is not easy to successfully bring forth a medical malpractice lawsuit in the United States, as evidenced by the consistent downward trend in the number of paid claims in the last two decades. This might be by design. Unlike other types of personal injury claims, medical malpractice typically carries its own set of procedural requirements and has a greater (and often mandated) need for expert review and/or testimony. For example, in New York, Rule 3012-a of the New York Civil Practice Law and Rules requires that all medical (as well as pediatric and dental) malpractice complaints be accompanied by a certificate of merit stating that the plaintiff’s attorney has consulted with at least one physician and has concluded that there is a reasonable basis for the commencement of the action (23 other states have similar certification mandates). Arguably, such requirements protect the judicial system from being clogged with meritless cases while allowing more viable claims to be efficiently litigated.
Another form of such “checks and balances” in medical malpractice is medical review panels. Though different throughout each jurisdiction, the overall purpose of a medical review panel is to review a potential cause of action and determine whether the claim is viable. The decision of the panel, which is composed of independent medical professional experts, is not binding and does not prevent a plaintiff from commencing a suit in most states. However, the panel’s findings can be admissible in court and present obvious evidentiary consequences. Proponents of medical review panels argue that they decrease the incentive for plaintiffs to file frivolous claims while providing a safety net for healthcare professionals and businesses. Critics, however, maintain that these panels are unconstitutional and prevent a litigant from his or her day in court.
Medical Review Panels: How Do They Work?
The general idea of alternative dispute resolution in medical malpractice cases is not new. 27 states, as well as the District of Columbia, Puerto Rico, and Guam, have statutory provisions providing for alternative dispute resolution, such as arbitration, mediation, or settlement conferences. Some states, like California, allow patients and medical professionals to enter into arbitration contracts that remove the option for trial. Other states, like Maryland, can order the parties to engage in alternative dispute resolution and in some cases, mandate arbitration.
Seventeen jurisdictions have taken alternative dispute resolution a step further by requiring that cases be heard by a screening panel before trial. These jurisdictions, which include Alaska, Delaware, Hawaii, Idaho, Indiana, Kansas, Louisiana, Maine, Massachusetts, Montana, Nebraska, New Hampshire, New Mexico, Utah, Virginia, Wyoming, and the Virgin Islands, each have their own procedure for medical review panels. But typically, a plaintiff begins by submitting a request for the case to be reviewed by a panel. The panel, which consists of medical experts in the particular field that is the subject of the suit, is formed. In certain jurisdictions, like Louisiana, the panel is overseen by an attorney chairperson who is responsible for setting evidentiary deadlines and instructing the panel members on the law. Once the panel is convened, the parties can submit evidence, such as medical records, expert reports and affidavits, and witness depositions. Over the course of the review, which varies greatly depending upon the jurisdiction and the backlog of the panel, the panel decides whether the claim is meritorious and whether the medical provider breached the requisite standard of care. The plaintiff then has a certain amount of time from the panel’s opinion to commence a lawsuit.
Some argue that the review panels move too slowly. For example, the average time it takes for a panel to reach a decision in Indiana is 4years. This time lag can be attributed to backlog of cases. Kentucky’s medical review panel, for instance, has issued findings in only 3% of its cases, with only 11% of the 531 pending claims having been assigned to the panel. Opponents argue that such a backlog is emblematic of the greater, overall issue of expediency and fairness in the medical review panel process.
Are Medical Review Panels Constitutional?
Interestingly, a lawsuit challenging the constitutionality of Kentucky’s recently created medical review panels may have large-scale implications for the future of these panels as a whole. In 2017, Kentucky passed legislation that required medical malpractice lawsuits to be reviewed by a panel prior to commencement. As per the statute, the panel has 9 months to issue an opinion as to whether the lawsuit is frivolous. Soon thereafter, the law was challenged by the parents of Ezra Claycomb, a young boy born with severe brain damage and cerebral palsy. Seeking to file a medical malpractice suit against the family’s physician, the Claycomb family filed a lawsuit challenging the law mandating the use of a medical review panel. The family’s attorney argued that the law created an unreasonable delay and does not pass the “rational basis standard” which requires the law to be “rationally related to a legitimate state interest.” As the Claycomb’s attorney stated, the law “has one purpose, and that is to obstruct the courthouse door.”
In October 2017, Franklin Circuit Judge Phillip Shepard struck down the law, holding that, “The 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…Those that cannot afford the additional delays and costs should not be prevented from pursuing their constitutional right to a ‘remedy by due course of law.'” The state had appealed Judge Shepard’s ruling and this past month, arguments were heard before the Kentucky Supreme Court. Until a final order is rendered, the Kentucky Appeals Court will allow enforcement of the review panels.
Whether medical review panels unconstitutionally deny access to the courts is not just an issue for Kentucky. Depending upon the Kentucky Supreme Court ruling, it is likely that plaintiffs for other states will follow suit.