Category Archives: Kentucky

September 2019 Newsletter

Longer statutes of limitation could invite in lawsuit abuse A challenge to Kentucky’s longstanding statute of limitations on medical liability lawsuit filings could open the door for additional litigation – and medical lawsuit abuse. A case is currently pending before the Supreme Court of Kentucky, seeking permission for a lawsuit to continue outside the statute of limitations under a narrow doctrine intended to apply in situations where continuous care is provided after an instance of negligence. In this case, the plaintiff is challenging that the statute of limitations should be waived anytime a patient is receiving follow up care from any health care provider at the same institution. Ruling in support of expanding that window would have negative repercussions. The Litigation Center of the American Medical Association and State Medical Societies, along with the Kentucky Medical Association, filed an amicus brief with the court. The brief detailed the effect overturning current law would have in permitting patients with lifelong conditions such as diabetes or asthma who receive continuous follow up care to be able to file lawsuits indefinitely. “Such a result would destroy the predictability and certainty essential to the ‘peace and welfare of society’ that the General Assembly sought…

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Don’t create unintended loopholes for medical liability cases

SOURCE: AMA A Kentucky law that, in most cases, gives patients one year to file a medical liability lawsuit does the job it was designed to do—ensuring claims are promptly and fairly adjudicated—and the judicial system shouldn’t create any unintended loopholes, physicians tell the state’s high court. Stay current on the latest on the issues impacting physicians, patients and the health care environment with the AMA’s Advocacy Update Newsletter. The Litigation Center of the American Medical Association and State Medical Societies along with the Kentucky Medical Association on July 24 filed an amicus brief in a case before the Supreme Court of Kentucky, Sneed v. University of Louisville Hospital, that challenges the limits that the Kentucky General Assembly established. The AMA Litigation Center brief asks the court to uphold the one-year limitation period patients and attorneys have abided by for years, advising justices that letting this lawsuit go forward under a narrow doctrine that carves out longer limits in certain cases would open up a loophole and expose health care providers to “indefinite medical liability claims.” Patients with lifelong conditions such as diabetes, high blood pressure and asthma, or cancer and heart disease patients who require lengthy treatments, could sue…

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July 2019 Newsletter

Opportunity for ACCESS: Liability reform introduced in Congress A new bill introduced in Congress offers the opportunity to limit the patchwork of medical liability laws and bring certainty to patients across the country seeking access to care. The Accessible Care by Curbing Excessive LawSuitS Act (ACCESS Act) is a comprehensive medical liability reform bill introduced by Representative Richard Hudson (R-NC) and modeled after proven reforms already in place in Texas, California, and many other states around the country. Rep. Hudson was joined in introducing the bill by Representatives Roger Marshall, MD (R-KS) and Larry Bucshon, MD (R-IN). The bill, H.R. 3656, ensures full and unlimited recovery of economic damages to deserving patients for expenses such as lost wages, past and future medical expenses, rehabilitation costs, and other out-of-pocket expenses. The legislation also permits the additional recovery of up to $250,000 for non-economic damages, such as damages awarded for pain and suffering, and the bill also protects states’ rights in the process. Recent estimates from the Congressional Budget Office (CBO) and the staff of the Joint Committee on Taxation (JCT) estimate that the provisions included in the bill would reduce federal spending by about $14 billion over five years, and almost…

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Kentucky Enacts Certificate Of Merit Requirement For Filing Medical Liability Cases

SOURCE: Mondaq The Kentucky General Assembly has enacted KRS 411.167 which now requires a claimant commencing any civil action against a healthcare provider, or long-term care facility, to file a “certificate of merit” when the complaint is filed. This new requirement applies to any new lawsuits against healthcare professionals including doctors, nurses, or hospitals, filed after June 27, 2019. A copy of the statutes can be found here. The new statute requires that the plaintiff must file a certificate of merit which reflects that they consulted with at least one expert who is qualified to give expert opinions as to the standard of care or negligence and that the expert concluded that there is a reasonable basis to commence the action. A single certificate of merit is sufficient even if there have been multiple defendants named. Like any statute, there are exceptions. The claimant does not have to file a certificate of merit if the claimant was unable to obtain the expert consultation required because the applicable statute of limitations was about to expire. In that case, the certificate has to be supplemented regarding the consultation of an expert within 60 days after service of the complaint. A certificate of…

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November 2018 Newsletter

Arkansas court ruling prevents counting medical liability votes Progress on liability reform in Arkansas hit a snag this fall, as a court ruling ahead of November elections hurt efforts for reforms to move forward. Medical liability reforms championed by Arkansas for Jobs and Justice, including limits on attorneys fees and reasonable caps on non-economic damages, were slated to appear on the November ballot as Issue 1. Initial circuit court challenges to the legitimacy of the ballot question due to the state’s single-subject test were appealed, but ultimately upheld by the state Supreme Court. Although the question still appeared on the ballot, the vote totals were not counted. While vote counts for some counties were released under a Freedom of Information Act request, Carl Vogelphol, campaign manager for Issue 1 proponent Arkansans for Jobs and Justice, said it was hard to know if the issue would have passed or not, but that “we were seeing internal data when the electorate was educated they would’ve voted for it.” To read more about the setback for Arkansas access to care, click here. Kentucky courts remove checks on liability lawsuit merits Legislation passed in 2017 that put in place a plan to ensure the…

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Kentucky Supreme Court strikes down medical review panels, upholds ‘right-to-work’ law

SOURCE: Insider Louisville – https://insiderlouisville.com/government/state/kentucky-supreme-court-strikes-down-medical-review-panels-upholds-right-to-work-law/ The Kentucky Supreme Court Thursday issued opinions striking down the law creating medical review panels for medical malpractice lawsuits in the state and upholding the so-called “right-to-work” law that prohibits requiring employees to pay union dues. The court, however, did not release its much-anticipated ruling on whether the controversial public pension bill passed by the state legislature this year is constitutional. That law is currently blocked from going into effect, as Franklin Circuit Judge Phillip Shepherd sided with Attorney General Andy Beshear and unions for teachers and police officers by ruling that the bill was passed in a manner that violated the constitution and state law. The Supreme Court unanimously affirmed Judge Shepherd’s opinion on the medical review panel bill, though three different opinions were written by the justices. The bill, passed in 2017, mandated that medical review panels issue opinions on the merits of a medical malpractice complaint before that claimant can file such a lawsuit. As Shepherd had ruled, the court affirmed that the bill was unconstitutional because it would delay citizens’ access to the courts of the state for the adjudication of common-law claims. The opinion striking down the medical review panel…

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August 2018 Newsletter

The reality of defensive medicine With projections about the cost implications of defensive medicine in the hundreds of millions of dollars, a new study showed greater insight into how physicians treated patients when they were not subject to the threat of lawsuits. The reality of defensive medicine became apparent when researchers from Duke and MIT, on behalf of the National Bureau of Economic Research, focused on active-duty military who were treated by government health care systems that are protected from medical liability lawsuits. When compared to treatment received by active-duty military from civilian medical professionals who are subject to liability, the study found “suggestive evidence that liability immunity reduces inpatient spending by 5% with no measurable negative effect on patient outcomes.” The study did an in-depth analysis on quality indicators to be sure doctors weren’t providing substandard care, and found no instances where the quality of care in the military health care facilities appeared to be worse. “Our analysis demonstrates that the active duty receiving care on the base are treated notably less intensively, without any health outcome consequences. Considering the lack of liability recourse for his treatment group, this pattern of results is suggestive of a strong degree of…

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Medical malpractice review panels bring sanity to a broken legal system

The Aug. 5 story by Andrew Wolfson on Kentucky’s new Medical Review Panel (MRP) process would have readers believe our legal liability system was working flawlessly before the new law was enacted. Perhaps that was true for the personal injury lawyers and TV stations that air their incessant commercials. But nothing could be further from the truth for the rest of us. To the detriment of businesses, caregivers — and ultimately consumers — Kentucky is one of the most litigation-friendly environments in the country. In fact, the U.S. Chamber of Commerce Institute for Legal Reform ranks Kentucky 43 out of 50 states for our legal liability climate. Worse, Kentucky is trending in the wrong direction. In 2015, we ranked 37. For example, it’s so bad that Kentucky considers the normal, human act of a doctor apologizing to a patient who did not receive an outcome they hoped for as an admission of guilt! Establishing the MRP process in Kentucky was the first step toward bringing our legal climate in line with neighboring states like Indiana, Tennessee and West Virginia — all of which have pursued reforms to preserve a consistent, level-playing field in the justice system. In turn, these states…

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July 2018 Newsletter

Wisconsin court preserves reforms – and access to care A decision this month by Wisconsin’s state Supreme Court kept intact liability reforms that have placed reasonable limits on noneconomic damages and resulted in lower health care costs for patients and physicians. The court upheld the state’s $750,000 limit on non-economic damages while continuing to guarantee that deserving patients would receive full and unlimited compensation for past and future medical care as well as lost wages. “Today’s Court decision preserves Wisconsin’s balanced medical liability system that has been instrumental in attracting physicians to communities across Wisconsin, while providing assurance to injured patients that they will receive payment for the full amount of a jury’s award of medical expenses, lost wages, and other economic losses,” Wisconsin Hospital Association President Eric Borgerding stated. The state maintains an Injured Patients and Families Compensation Fund using assessments charged to physicians, clinics, hospitals and other participants and covers all damages above their primary insurance limits. Premiums paid by physicians to the fund have been dropping since 2014, with rates falling by 34 percent in 2016, 30 percent last year and an anticipated drop of another 30 percent this year. This month’s decision comes as a reversal…

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Kentucky’s legal liability climate leading to higher costs for everyone, lawmakers say

With Kentucky continuing to rank among the worst in the country in terms of legal liability climate, legal liability reforms are at the forefront of legislative discussions for many policymakers in the state. Sen. Ralph Alvarado, a doctor from Winchester, said one of the main issues with Kentucky’s legal liability climate is doctors in the state practicing “defensive medicine,” which he said means health care professionals having to worry more about liability and being sued than the case at hand. “You order tests to look for things that are rare and that are improbable just because if you happen to miss something you’re going to get potentially sued. So, you order the tests for things that are probably unnecessary, that add a lot more cost to health care. You might admit someone to the hospital just in case when it probably doesn’t need to happen,” Alvarado said. While some legal liability measures have passed through the General Assembly in recent years, Alvarado says there is still more work to be done. One initiative in the 2018 session that didn’t see passage was a bill to place a constitutional amendment on the ballot in November to let voters decide if the…

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