In response to skyrocketing medical malpractice insurance premiums in the 1970s and 80s, states began enacting a variety of “tort reform” laws that treat medical malpractice differently from all other torts. Examples of such laws include shortened statutes of limitations, caps on noneconomic damages and/or attorney’s fees, affidavit of merit requirements, etc. “Seventeen jurisdictions – Alaska, Delaware, Hawaii, Idaho, Indiana, Kansas, Louisiana, Maine, Massachusetts, Montana, Nebraska, New Hampshire, New Mexico, Utah, Virginia, the Virgin Islands and Wyoming – have requirements that medical liability or malpractice cases be heard by a screening panel before trial.” http://www.ncsl.org/research/financial-services-and-commerce/medical-liability-malpractice-adr-and-screening-panels-statutes.aspx. That list, which was current as of 2014, does not include Kentucky, which enacted its Medical Review Panel Act in 2017. The Kentucky Supreme Court recently struck down that law on state constitutional grounds – specifically, the open-courts provision of the Kentucky Constitution’s Bill of Rights. The case is Commonwealth of Kentucky et al. v. Ezra Claycomb et al., https://law.justia.com/cases/kentucky/supreme-court/2018/2017-sc-000614-tg.html. The opening paragraphs of the opinion summarize the case perfectly:
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. Kentucky’s version of this guarantee, referred to in our jurisprudence as the open-courts provision, appears in the Bill of Rights, Section 14, of the Kentucky Constitution, which states: “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 just administered without sale, denial or delay.”
The Kentucky General Assembly in its 2017 regular session enacted…the Medical Review Panel Act, establishing a mandatory process to delay certain medical malpractice claimants’ ability to access immediately the courts of the Commonwealth by creating medical-review panels and requiring a panel’s opinion about the merits of the claimant’s proposed complaint against health-care providers before the claimant may file suit….We hold that because the [Panel] Act delays access to the courts of the Commonwealth for the adjudication of common-law claims, [it] violates Section 14 of the Kentucky Constitution.
This is a lengthy, learned, beautifully written opinion, well worth reading. The court traces the history of the open-courts provision back to Magna Carta, and the opinion quotes and analyzes relevant paragraphs from Coke, Blackstone, and other eminent authorities.
According to a source whose accuracy I cannot vouch for, “almost forty state constitutions include articles stating an explicit right of access to justice/access to the courts.” http://www.dmiblog.com/archives/2006/07/your_state_constitutional_righ.html. The plaintiffs’ bar in the states listed above would be well advised to check their state constitutions for the existence of an open-courts provision and, if there is one, to consider whether their state’s version of the med mal panel law could be successfully challenged as violative of that provision.
