KRS §216C.005

New Law Creates Medical Review Panels in Kentucky

On March 16, 2017, Kentucky Gov. Matt Bevin signed into law a new statute that requires medical malpractice plaintiffs to obtain an opinion from a medical review panel before their lawsuit can be filed in court. The Medical Review Panel Statute, KRS §216C.005, became effective June 29, 2017.

The Medical Review Panel Statute applies to all lawsuits arising out of health care or professional services that were, or should have been, provided by a health care provider to a patient. The bill defines the term “health care provider” to include individual providers, practice groups, hospitals, nursing homes and agencies, as well as the administrators, officers, directors, agents and employees of any health care practitioner or entity. The bill covers all causes of action arising out of the provision of medical care including negligence, wrongful death, informed consent, battery, breach of contract, and violation of a statute or regulation.

Pursuant to the Medical Review Panel Statute, a patient who wants to sue for medical malpractice must first submit his case to a “medical review panel” for review on the merits. The parties can forego the panel process, but only if all parties to the proposed action agree. Claims governed by a valid Alternative Dispute Resolution agreement are exempt from the requirements of the Statute.

To institute a medical malpractice action under the Statute, the patient must file a “proposed complaint” with the Commonwealth’s Cabinet for Health and Family Services. The parties must then appoint a three-person voting panel and an attorney chairperson. All health care providers who are licensed to practice in any state are eligible to serve on the panel. When possible, the chosen panelists should be licensed to practice in Kentucky, and in the same specialty as the defendants. However, that is not guaranteed. Chosen panelists may be dismissed upon a successful challenge, upon agreement of all parties, or for “good cause shown.” A panelist who fails to fulfill his duties may be removed and subjected to civil sanctions.

Once the panel is set, the patient has 60 days to present his evidence in either written or electronic form. The provider then has 45 days to submit rebuttal evidence. These deadlines may be extended in the event of “extenuating circumstances.” The panel may request additional materials from the parties, perform its own research, and “consult with medical authorities.” However, depositions may only be taken with the attorney chairperson’s approval.

Within 30 days of receiving the provider’s evidence, the panel must issue one of the following three “opinions” as to each of the providers: (1) the evidence supports the conclusion that the health care provider breached the applicable standard of care, and that breach was a substantial factor in producing a “negative outcome” for the patient; (2) the evidence supports a breach but not causation; or (3) the evidence does not support a breach. After the panel gives its opinion as to each defendant, it is dissolved and shall take no further action.

This opinion must be issued within nine months of the panel’s formation. Thus, allowing three months for the panel to be formed, the entire process is designed to take less than 15 months from start to finish. However, given the relatively short (and unrealistic) time frames given for the presentation of evidence, one could expect the process to take anywhere from one to two years.

Once the patient receives the panel’s opinion, he has 90 days to file a lawsuit—regardless of the opinion issued by the panel. If the matter proceeds in the circuit court, the opinion of the medical review panel is not conclusive, but it may be admissible into evidence as an expert opinion subject to cross-examination. The panelists may also be called by either party to testify as witnesses in the court matter.