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High court strikes down law requiring review of medmal cases before going to court

By ADAM BEAM
Associated Press

FRANKFORT, Ky. (AP) — In a pair of mixed rulings for Kentucky Republicans, the state Supreme Court on Thursday struck down a law requiring a panel of doctors to review medical malpractice cases before they go to court while upholding the state’s law banning mandatory union dues for most employees.

Republicans celebrated when Gov. Matt Bevin signed both laws, made possible only after the GOP won control of the state House of Representatives in 2016 for the first time in nearly 100 years. Bevin has credited the union dues law, known as right-to-work, with boosting record levels of business investment in Kentucky. But the medical review panel law has been criticized for clogging the state’s court system.

The medical review law gives a panel of doctors nine months to review medical malpractice lawsuits and issue an opinion about whether they are frivolous. A review of court records in August of this year by the Louisville Courier Journal found that in the first year the law was in effect, 11 percent of the 531 malpractice lawsuits filed had been assigned to a panel. Of those, findings had been issued in 3 percent.

The state legislature passed the law in 2017. Tonya Claycomb sued on behalf of her child, Ezra, who was born with severe brain damage and cerebral palsy she says was caused by medical malpractice. She argued the bill delayed her access to the courts, citing section 14 of the Kentucky Constitution. It says all courts shall be open and every person will have access “without … delay.”

Lawyers for Gov. Bevin argued the law is helpful because it gets the two sides talking before a lawsuit is filed, which could lead to an agreement to settle the case outside of court. They also pointed out the state has other laws that limit access to the courts, including requiring heirs to wait at least six months before suing the executor of an estate.

The court ruled the law is unconstitutional because it delays access to the courts, arguing that right is “possibly the most important” of rights guaranteed in state constitutions but absent from the U.S. Constitution.

Kentucky’s right-to-work law has been in place since January 2017, when Republican lawmakers passed it in the first five days of that year’s legislative session. Labor unions loudly protested, shouting in the halls of the Capitol as lawmakers passed the bill in a rare Saturday session.

Federal law requires most labor unions to represent all workers in a bargaining unit, even if some workers did not join the union. Most union contracts require all workers to pay a fee to support the union as it seeks to enforce the contract. But at least 28 states have passed laws exempting workers from those fees.

Of all those state laws, none of them have ever been struck down in court. But labor unions in Kentucky argued the state Constitution was different because of its ban on special legislation, which only affects a specific group of people. Most of the court disagreed, saying the law affects all employers and employees, with a few exceptions for workers either covered or exempted by federal law.

“In this area of economic legislation, the legislature and the executive branch make the policy, not the courts,” Justice Laurance VanMeter wrote for the majority.

The decisions were part of a trio of rulings from the court Thursday. The court did not issue a highly anticipated ruling on the legality of a law passed earlier this year that made changes to the state’s troubled pension system. The court is not scheduled to issue rulings again until Dec. 13.

The court did schedule arguments in a case challenging the validity of a Constitutional amendment voters approved on Nov. 6. The amendment would guarantee the rights of crime victims, including the right to be notified of and present for most court proceedings. Last month, a state judge ruled the question on the ballot was too vague and ordered state officials not to certify the election results. The Supreme Court agreed to hear the case in February.

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