Senate Bill 4, enacted by the 2017 legislature and signed into law by Gov. Matt Bevin, created Medical Review Panels (MRP) in Kentucky as a jurisdictional precursor to filing a medical malpractice civil action in court
The legislation authorizing MRPs is KRS 216C et seq. and takes effect June 29, 2017.
As in other states with MRPs, a potential plaintiff in Kentucky alleging malpractice against a health care provider or institution must first bring a proposed complaint to the state Medical Review Panels Branch of the Cabinet for Health and Family Services before a claim is brought to a Kentucky court.
Within 10 days of receiving a proposed complaint, the Cabinet will serve a copy of the proposed complaint on all health care providers named as defendants. By statute, the term health care provider includes hospitals, nursing homes, ambulatory services, abortion clinics, physicians, dietitians and nutritionists, paramedics and emergency service providers, radiologists, chiropractors, dentists, registered nurses, pharmacists, psychologists, optometrists, physical therapists, medical laboratories, speech pathologists and social workers.
After the defendants receive notice, all parties may agree in writing to waive the MRP requirement and proceed to court. However, if at least one party to the action does not agree to waive the MRP, the process moves forward.
An MRP is led by a nonvoting attorney chairperson who is in charge of managing the MRP. The parties have 20 days to agree on a chairperson. If the parties are unable to agree within 20 days, a party can ask the Cabinet to draw five names at random from a list of participating attorneys practicing in the Supreme Court district where the alleged malpractice occurred. The party making this request must pay a $25 fee.
Beginning with the plaintiff, each party takes turns striking an attorney from the list until only one name remains. The remaining attorney becomes the chairperson of the MRP unless that person objects to serving within 15 days. The selected chairperson must demonstrate good cause for why he or she is unable to serve before being released from service.
The selected chairperson must create two lists with three natural person healthcare providers or panelists on each list for a total of six potential panelists. The chairperson must take reasonable care to select potential panelists who are licensed in Kentucky and practice in the same field of medicine as the defendants, if possible. The chairperson must send both lists to all parties within five days of the his or her appointment. The plaintiff then strikes one name from each list and the defendant strikes one name from each list. In the event of multiple plaintiffs defendants, the side with multiple parties must exercise its strikes collectively. The two remaining names become panelists and must agree on a third panelist to serve. Any panelist selected may be excused for good cause or if there is a conflict of interest.
At the end of the selection process, each party has 10 days to object to the composition of the panel. The chairperson will sustain or overrule objections.
Once the panel is finalized, the plaintiff has 60 days to submit evidence in support of the claim after which the defendant has 45 days to submit evidence.
No party may take the deposition of a witness without prior authorization from the chairperson, but the chairperson shall not unreasonably deny a party's request to take a deposition.
At any point after it is formed, the MRP has the authority to subpoena records, call hearings and consult with other medical professionals. If the MRP engages in any evidence gathering itself, the parties have a right to review this evidence. At all times during the evidence gathering stage the Circuit Court that ordinarily would have jurisdiction over the matter has limited jurisdiction to compel or limit the evidence submitted.
For example, the Circuit Court could quash a subpoena duces tecum if the request is overly broad or compel the disclosure of documents being withheld.
After all the evidence has been submitted to the MRP it must render one of three opinions:
(1) that the defendant failed to act according to the applicable standard of care and that failure was a substantial cause of plaintiff’s injury;
(2) that the defendant failed to act according to the applicable standard of care but that failure was not a substantial cause of plaintiff’s injury; or
(3) the defendant did act according to the applicable standard of care.
The chairperson has the authority to extend any of the standard time periods for submission upon a motion seeking an extension for good cause. However, regardless of deadlines and all other time limitations, a final opinion must be rendered within nine months of the filing of the proposed complaint or a plaintiff may proceed with filing a civil complaint in a court of competent jurisdiction.
If the plaintiff chooses to file a civil complaint, either party may move the trial court to admit the MRP opinion as evidence in the same manner a party would move to admit the testimony of an expert witness.
The chairperson and panelists on the MRP are entitled to fees (with limitation) for their work, excluding travel expenses. The party obtaining a favorable ruling is responsible for paying these fees.
No matter the outcome of the opinion, the plaintiff still has a right to pursue a medical malpractice claim in a court of competent jurisdiction after the final MRP opinion is rendered.
Filing a Proposed Complaint
Contact the Cabinet for Health and Family Services Medical Review Panel Branch by
email or call (502) 564-7042.