Medical tort-reform bill moves to House

By Ohio County Monitor Delaware, Kentucky, News Source

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  • March 28, 2018

FRANKFORT, Ky. — The Senate approved an omnibus medical tort-reform measure yesterday that would regulate everything from trial attorney fees, medical record copying charges and which malpractice lawsuits can advance in the courts.

Among its many provisions, Senate Bill 20 would require medical malpractice lawsuits to contain an affidavit of merit. That’s a document stating that at least one doctor agrees the claim has merit.

A medical review panel opinion in favor of a patient would fulfill the affidavit of merit requirement. Senate Bill 4 from 2017 created panels of experts to review claims of medical error or neglect. If the medical review panel finds in favor of the medical provider, however, the patient would still have to get an affidavit of merit to advance to court.

A second provision would impose contingency caps on attorney fees in medical malpractice cases. An amendment would set those caps at no more than 33 percent of any awarded damages.

“Some will argue this is an infringement on the free market,” Sen. Ralph Alvarado, R-Winchester, who introduced the legislation. “I feel it is a protection against predatory legal practices in Kentucky.”

A third provision is known as the “I’m sorry” clause. It would allow health care workers to express condolences or apologies to patients or families without fear of having those words used against them in a lawsuit.

A fourth would regulate fees for copying medical records. An amendment included an exemption from medical record copying fees for pro bono and Social Security disability cases.

Minority Floor Leader Sen. Ray S. Jones II, D-Pikeville, stood to oppose the bill. He said placing artificial caps on attorney fees would discourage quality lawyers from taking medical malpractice cases.

“It is a fundamental right in this country to contract with a legal representative of your choosing and to be able to negotiate a fee amount,” he said, adding that those agreements have to be in writing and reasonable under ethics rules governing lawyers. “It is shameful what is happening here.”

Jones said SB 20 would impede “free-market economics.”

Alvarado said SB 20 was modeled after Delaware where medical malpractice attorneys thrive under conditions SB 20 seeks to put in place in Kentucky.

“None of the concepts in this bill are new,” he said. “All the tenets in this bill exist in other states.”

SB 20 passed the Senate by a 20-16 vote. It now goes to the House for consideration.