Tuesday, December 18, 2018

Kentucky Supreme Court Holds Med Mal Review Panel Law is Unconstitutional; while Puerto Rico enacts a similar law

On November 15, 2018, the Kentucky Supreme Court held that Kentucky’s Medical Review Panel Act was unconstitutional. The Act established that all potential medical malpractice suits must first be presented to a three person medical review panel before the case could be filed in State court and that only after the panel rendered its decision (or after nine months if it had not rendered a decision) that the Plaintiff could file suit in State Court.  The case is called Commonwealth of Kentucky v Claycomb and you can read it here.

The TortsProf Blog has a comment here in which, without opining on the constitutionality of the act, Prof. Chris Robinette argues the bill is (or was) a bad idea.

JD Supra has a story about the decision here

Meanwhile, in Puerto Rico, the governor signed a law creating panels composed of 3 people--including a health expert, a public advocate, and a lawyer or former judge--to review medical malpractice claims.  Claimants, with an exclusion for the indigent, will be required to post a bond-like payment with the panel.  If the panel finds evidence of malpractice, the money will be returned.

This is a horrible idea and really bad news for the victims of medical malpractice in Puerto Rico.  It will not only delay their claims, it will make it very difficult for them to find legal representation and to get access to justice. 

Even though time and time again, studies have shown that the reasons for doctors leaving a jurisdiction of practice are rarely related to exposure to liability, the legislature and the governor argued the bill is meant to stem the exodus of doctors from Puerto Rico.  What they fail to recognize is that there is a general exodus from Puerto Rico largely caused by a long economic crisis which was made worse by the devastation caused by recent hurricanes. 

I agree with Prof. Robinette that there are better ways to handle the concern over frivolous claims.

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