Court Enjoins KY Medical Examination Review Panels That Block Right to Jury Trial

Medical Malpractice
Tort Reform Legislation

By Lynn Shapiro, Staff Writer

Kentucky plaintiffs prevailed over medical and business interests this week in a case of money and power versus the civil rights of U.S. citizens wishing to exercise their 7th Amendment right to a jury trial.

The victory was handed down by Franklin Circuit Judge Phillip Shepherd, who reversed a law requiring Kentucky patients who were allegedly harmed by a medical provider, such as a doctor, nurse, hospital or nursing home, to have their cases pre-screened by an outside panel of medical professionals before qualifying for litigation.

Judge Shepherd declared this pre-screening process a travesty of justice.

Brain Damaged Baby

The law that went into effect on June 29th was quickly challenged by a Lexington, Ky., woman, Tonya Claycomb.

She attempted to file suit on behalf of her newborn son, a cerebral palsy victim. Claycomb alleges the brain damage resulted from a doctor’s malfeasance.

Jack Brammer, writing for BG Politics, says Claycomb alleged in her suit against the Kentucky Cabinet for Health and Family Services that the medical examination panel law prevented her from filing a lawsuit in Jefferson Circuit Court, seeking life-long compensation for her severely-impaired son.

A Dermatologist Opining on Brain Surgery

Under the oligarchic law, the medical examiner committee members - comprised of three health professionals - didn’t have to practice in the disputed specialty. They simply had to be licensed health professionals.

“Thus a dermatologist or social worker might be called upon to render an opinion about malpractice allegations against a brain surgeon,” Judge Shepherd said.

“The law fails to reduce malpractice claims. It does not prohibit or even discourage the filing of frivolous suits.

“Instead it creates unnecessary obstacles for all medical malpractice claimants, regardless of the merits of their claims.

“These barriers prevent the filing of claims, meritorious or not, by imposing significant delays and costs,” Judge Shepherd declared.

Legislators Tried to Hamstring Plaintiffs

The Kentucky State legislature had approved the law and Republican Gov. Matt Bevin signed it earlier this year.

Republican State Sen. Ralph Alvarado, a Winchester physician, sponsored the legislation to hamstring medical malpractice lawsuits.

Gov. Bevin said the legislation was “the first step toward tort reform” on the website of the Cabinet for Health and Family Services, the agency that administered the law.

His administration has promised to appeal Judge Shepherd’s ruling. 

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