22 February 2018

Kentucky Legislature Takes First Step Toward Tougher Medical Malpractice Rules

A controversial bill to reform Kentucky’s medical malpractice stem has passed over its first major hurdle on February 7, 2018, as the State’s Senate Health and Welfare Committee advanced a proposal to limit malpractice attorneys’ fees, the Lexington Herald Leader reports. The bill will now make its way to Kentucky’s Senate for further consideration.

Kentucky Lawmakers Ramp Up Tort Reform Fight

As currently written, Kentucky’s Senate Bill 20, sponsored by Republican Senator Ralph Alvarado, would make it much tougher to file a state court malpractice lawsuit, a goal conservative lawmakers have been pushing for nearly a decade. Last year, Kentucky’s legislature passed a law to establish the use of medical review panels, three-member boards of medical professionals and attorneys who “referee” potential malpractice claims before they reach court.

Doctors Perform Surgery

That law was struck down as unconstitutional in October 2017, when the Chief Judge for the Franklin County Circuit Court ruled that it violated Kentucky patients’ right to access the court system freely. The State’s Supreme Court has agreed to give the case a look.

New Bill Would Limit Malpractice Attorneys’ Fees

Now, the Kentucky’s GOP-led Congress is hoping to put another roadblock in front of plaintiffs, by discouraging attorneys from taking cases in the first place. Under Senate Bill 20, attorneys’ fees would be capped in proportion to the amount of damages awarded to their client. Lawyers would be eligible to receive 35% of the first $100,000 awarded, 25% of the next $100,000 and $10 of everything after that. Moreover, the law makes explicit that plaintiffs can contract to hire their malpractice attorneys’ on a per diem (per day) basis.

Ralph Alvarado, the Kentucky Senator who’s leading the charge on medical malpractice reform, says the fee caps will be good for injured plaintiffs. “More of that money should go to the person that’s been wronged, not to the attorneys,” Alvarado, who is a doctor, told the Associated Press.

Increasing The Cost Of Pursuing A Case

Alvarado’s proposal goes further, however. The Senator’s ideas focus, in part, on creating mechanisms that discourage trial lawyers from taking weak malpractice cases or, at the least, attempt to shift the costs of taking those riskier cases onto attorneys themselves.

Limiting the amount of money an attorney can make is the largest lever that Alvarado wants to pull, but the bill is also trying to make it more costly for malpractice attorneys to do their business before settlement or verdict. One of the legislation’s smaller provisions would allow medical providers to charge a fee for producing copies of medical and billing records for people who aren’t the patient, including records subpoenaed by attorneys during court proceedings.

Affidavits Of Merit

If enacted, the bill would force malpractice plaintiffs to submit an “affidavit of merit” before being able to file their claims in court. Kentucky law already makes potential malpractice plaintiffs go through a medical review board first. And, while the board’s opinion on the case isn’t final, a medical review panel’s findings can be admitted as evidence in a subsequent court trial.

The intent, obviously, is to filter out bad cases before they reach the civil court system. Senate Bill 20 adds a new wrinkle to the process. In order to enter court, plaintiffs would first have to submit the affidavit of a qualified medical expert who’s reviewed their relevant medical records (in so far as that’s possible) and believes they have a viable case. No affidavit, no lawsuit. The requirement would be waived, however, if the medical review panel, who’s already looked over the facts, renders an opinion in favor of the plaintiff’s arguments.

Protecting Doctors Who “Express Sympathy”

In its final section, the new bill attempts to protect doctors who “express[…] sympathy, compassion, commiseration, or a general sense of benevolence relating to the pain, suffering, or death of an individual.” Under the law, physicians who feel sorry for the plight of an injured patient (but not necessarily responsible for that plight) would be shielded from having their statements of good will later entered as evidence of liability in court. That protection doesn’t apply to statements “of fault, negligence, or culpable conduct” made under similar circumstances.

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