Don’t create unintended loopholes for medical liability cases

By Tanya Albert Henry Kentucky, News Source

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  • September 30, 2019

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.

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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 physicians as long as they continued receiving care from doctors in the same hospital or hospital system—in essence, indefinitely, the AMA Litigation Center brief explains.

“Such a result would destroy the predictability and certainty essential to the ‘peace and welfare of society’ that the General Assembly sought to provide,” the brief states.
What’s being disputed?

Jessica Sneed filed a lawsuit against two physicians more than a year after they delivered her baby at University of Louisville Hospital and repaired a vaginal tear, categorized as a fourth-degree laceration on Aug. 2, 2013. She is asking the court to let her case proceed under the continuous course of treatment doctrine, an exception in which the court has allowed patients more than one year to file a lawsuit when a patient experiencing an act of medical negligence continues to receive care from the same physician for the injury caused by the negligence.

Sneed says the exception should apply anytime a patient is receiving follow up care from any health care provider at the same institution.

A week after the delivery, Sneed returned to University of Louisville Hospital and was diagnosed with rectovaginal fistula and received care from different physicians. The laceration was permanently repaired in October 2013. Again, the physicians who delivered the woman’s baby—Tanya Franklin, MD, and Jennifer Ford Allen, MD—were not part of that care.

On Aug. 1, 2014—within the one-year limitation—Sneed sued the hospital and the physician who treated her when she returned a week after the delivery. She amended the complaint on Oct. 20, 2014, to include the two physicians who delivered her baby and initially repaired the laceration.

The trial court and appellate court halted Sneed’s lawsuit against Drs. Franklin and Allen from going forward, saying the facts of the case didn’t give her more time to file the claim under the continuous course of treatment doctrine.

The AMA Litigation Center brief tells the state’s highest court that the lower courts got it right and that justices should uphold the appellate court decision that said the doctrine doesn’t apply when a patient didn’t receive any form of ongoing care from the allegedly negligent physicians.

“The continuous course of treatment doctrine is specific to a physician-patient relationship; it is that individual relationship the doctrine seeks to protect,” the AMA Litigation Center brief tells the court.
Striking the right balance

The Kentucky law is important because it balances a patient’s right to bring a lawsuit against a physician’s ability to mount a fair defense, physicians say.

The AMA Litigation Center brief notes that the Supreme Court of Kentucky in previous cases has recognized that “if causes of action are not limited, defendants face a series of problems in presenting a proper defense: lost evidence, fading memories, missing witnesses.”

“The more time that elapses … the more challenging it becomes to determine whether the physician failed to meet the appropriate standards of care and whether any such failure caused the alleged injury,” the brief says.