Politics & Government

Lawsuit challenges new law aimed at limiting medical malpractice lawsuits

State Sen. Ralph Alvarado, R-Winchester
State Sen. Ralph Alvarado, R-Winchester

A new state law aimed at limiting medical practice lawsuits in Kentucky is unconstitutional, a Kentucky woman claims in a lawsuit filed last week.

The law, which the state legislature approved this year and Gov. Matt Bevin signed, requires that claims filed against doctors, hospitals, nursing homes, their executives and other health care providers must first be evaluated by panels composed of three medical providers before they could proceed in court. The panels’ opinions could be entered as evidence in any subsequent litigation.

The law took effect June 29, the same day Tonya Claycomb of Breckinridge County filed her lawsuit in Franklin Circuit Court.

The 38-page suit claims the law “discriminates against a class of litigants who, based on nothing more than legislative whim, must delay any judicial remedy while other litigants can pursue their rights in court immediately.” It asks the court to “preliminarily and permanently” stop the state from enforcing the new law and to award the plaintiffs unspecified “reasonable costs.”

Claycomb is the mother of Ezra Claycomb, who was born in Jefferson County in 2014 and suffered severe birth-related injuries, including brain damage with resulting cerebral palsy.

The new law denies Claycomb her right to file a lawsuit in Jefferson Circuit Court asserting a claim of medical malpractice and seeking damages, she claims in the suit against the Kentucky Cabinet for Health and Family Services.

In response to the lawsuit, cabinet spokesman Doug Hogan said Thursday the law is constitutional.

“This new law is the first step toward meaningful tort reform that will drive down medical costs for Kentucky families,” Hogan said. “It is constitutional and includes safeguards to ensure due process for all parties involved.”

The suit also was served to Attorney General Andy Beshear, whose office generally represents the state in litigation. Beshear spokesman Terry Sebastian said the office had not yet received and reviewed the complaint.

State Sen. Ralph Alvarado, a Winchester Republican who sponsored the bill, said he is not surprised a lawsuit has been filed challenging the bill.

Alvarado, who is a doctor, said he has not yet read the lawsuit but suspects that the Kentucky Justice Association, which promotes trial lawyers, is behind it.

“That would be incorrect,” said Frankfort attorney J. Guthrie True, who is representing Claycomb with the help of Paul A. Casi II of Louisville.

Asked who is behind the lawsuit, True responded: “The Claycombs.”

“There might be other plaintiffs to join,” he said. “A number of people are going to be in this situation.”

The lawsuit states that Tonya Claycomb has agreed to pay for the litigation.

The plaintiffs will suffer irreparable harm, monetary loss and a delay in access to circuit court of at least nine months from the date the proposed complaint is filed, the suit said.

Under the law, the review panels would have to hand down their opinions in nine months or else the suit could proceed in court; plaintiffs and defendants would jointly pick a lawyer from the region to serve as the panel’s non-voting chairman; and the panels’ opinion would not automatically be admitted into court as evidence. Instead, the trial judge would be asked to decide.

Similar proposals have been opposed for years by trial lawyers and patient advocates. It did not win legislative approval until Republicans took over the House in January, giving the GOP control of both legislative chambers and the governor’s office.

The lawsuit said at least seven states have removed medical review panels and five others have found them unconstitutional.

Jack Brammer: (502) 227-1198, @BGPolitics

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