On Thursday, the Kentucky Supreme Court will hear oral argument in a case that could impact the complaint process against licensed professionals. At issue in Maggard v. Kinney is whether the “judicial statements privilege” applies to complaints filed with Kentucky’s professional licensing boards, and specifically whether the privilege absolves the person making a complaint from liability for false statements.
About 25% of jobs nationwide require a professional license. This includes about 300,000 Kentuckians. In Kentucky, licensing boards regulate professions as varied as barbers, real estate agents, doctors, accountants, engineers, physical therapists, landscape architects, and dozens more.
In Maggard, an OB/GYN sued another OB/GYN practicing in the same town for defamation, abuse of process, and other related claims for allegedly making false statements in an effort to undermine the competing doctor’s practice. The OB/GYN who was sued had filed complaints with the Kentucky Board of Medical Licensure against the competing OB/GYN and encouraged his patients to file malpractice lawsuits against her. The trial court ruled that the judicial statements privilege was inapplicable to the KBML proceeding, but the Court of Appeals disagreed and reversed.
Two issues are now before the Supreme Court. First, the court must decide whether it even has jurisdiction to hear the case. Normally, an appeal may only be filed after a case is completely finished at the trial court. There is, however, an exception for decisions involving immunity, the thought being that a party who is immune from suit should not be required to go through the time and expense of defending it. The Supreme Court must decide whether to extend its caselaw regarding immediate appeals to the judicial statements privilege. The court must also decide whether a party seeking to appeal an immunity or judicial statements privilege decision must do so within 30 days of the order denying it.
Second, the court must decide whether the judicial statements privilege applies to complaints before administrative agencies that regulate professional licensing. The Supreme Court previously applied the privilege to Kentucky Bar Association proceedings against lawyers, but that decision may be limited to the special relationship between lawyers and the courts. The court’s decision may impact the frequency of future complaints as a decision denying the privilege could chill future complainants from bringing issues to a board’s attention.
A decision will likely be issued this summer.