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Bill Aimed at Revising Kentucky Medical Malpractice System Advances

LRC Public Information

Following up on a big change made last year to Kentucky's medical malpractice system, state lawmakers are considering a measure that would further alter the process of pursuing lawsuits claiming medical error or neglect.

The bill advanced by the Senate Health and Welfare Committee on Wednesday would place caps on a plaintiff's attorney's fees in malpractice cases. It also would insert another potential hurdle for some plaintiffs to clear before taking their claims to court.

Republican Sen. Ralph Alvarado, the bill's lead sponsor, said the changes would bring Kentucky's system in line with malpractice laws in many other states.

"We're just trying to get with the times," said Alvarado, a Winchester doctor.

In opposing the bill, Democratic Sen. Reginald Thomas of Lexington said the changes could have a chilling effect on pursuing damages for medical mistakes or neglect.

"This bill is designed for one purpose only," he said. "And that is to protect health care providers and hospitals and get attorneys out of that business."

The latest push to revamp the malpractice system comes after the GOP-led legislature last year enacted a law to create panels of medical providers to review claims of medical errors and issue opinions on their merits before they go to trial. That law is being challenged in court.

The new bill would put caps on a plaintiff's attorney's fees, based on the size of the damages awarded. Under those limits, attorneys could receive $60,000 in fees if their clients win $200,000 in damages, or $140,000 in fees if damages reach $1 million, Alvarado said.

Plaintiffs would be the big winners from the limits, Alvarado said. "More of that money should go to the person that's been wronged, not to the attorneys," he said.

Thomas countered that the caps could discourage some trial attorneys from taking malpractice cases, which generally are complex and costly to pursue.

Another key provision in the bill would, in some cases, require a plaintiff to obtain an "affidavit of merit" before taking a malpractice claim to court.

It would involve getting a statement from a medical expert who believes the standard of care was breached in the case. The requirement would be waived if a medical review panel finds in favor of a plaintiff on the merits of a case.

Thomas said that provision also could have a chilling effect because doctors are reluctant to "call out other doctors" who are accused of negligence.

"That's just not going to happen as a practical matter," he said.

The bill also would allow health care providers to start charging fees when someone other than the patient requests copies of the patient's medical records.

Another section would offer legal protections for health care providers when expressing sympathy for the pain, suffering or death of a patient. Under the bill, such remarks could not be used against the provider in malpractice claims.

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