Kentucky likely to get measures to restrict malpractice lawsuits

The coming Republican control of state government makes it likely that doctors and other health-care providers will get from the General Assembly what they have wanted for more than 30 years: legislation to limit non-economic damages in malpractice lawsuits. But the voters will have the final say, because the measure will require changing the state constitution.

Meanwhile, the legislature and Gov. Matt Bevin can, on their own, enact a law requiring such lawsuits to be evaluated by a screening panel. “The plaintiff and defendant would each nominate one doctor, and those
doctors would select a third. The panel would hear evidence, then issue
an opinion on whether negligence occurred and if it did, whether it
caused the patient’s injuries. Regardless of the finding, the plaintiff
could still file suit and proceed to trial, but the panel’s finding
would be admissible,” Andrew Wolfson writes for The Courier-Journal. “Peer-reviewed university studies, including one in the Journal of Legal
Medicine
, have found that screening panels have not reduced the number
of claims, litigation costs or malpractice insurance premiums, while
they have caused protracted delays,” Wolfson reports.

Any broader measure to limit damages would require a constitutional amendment because the 1891 Constitution says legislators “shall have no power to limit the amount to be recovered for injuries
resulting in death, or for injuries to person or property.”

“Supporters of tort reform, like Louisville emergency room
Dr. Robert Couch, say “sky-is-the-limit” liability forces physicians to
order unnecessary tests and procedures and that eliminating such
defensive medicine would reduce health care costs,” Wolfson reports. “He
also said the fact Kentucky is surrounded by states that have all
enacted damage caps and other restrictions makes it harder to recruit
doctors to the commonwealth.”

On the other hand, “Opponents say reducing liability could increase costly medical errors, lowering the quality of care and increasing costs,” Wolfson writes. “Experts say that medical malpractice costs account for such a
minuscule amount of the nation’s total health-care bill – only 2
percent by some estimates – that reforms have virtually no impact on the
bottom line for patients.”

Generally, Wolfson notes, studies show caps and other malpractice changes reduce insurance
premiums for doctors by 23 to 31 percent,
researchers at the University of Alabama at Birmingham’s Center for
Health Policy have written, “Legislators should consider whether
they benefit consumers enough to justify limiting recoveries for those
most seriously injured by malpractice.”

Wolfson starts his article with the story of an Indiana insurance lobbyist who helped win a law there limiting damages to $500,000 and eliminating any damages for pain and suffering: “Fourteen years later, as the victim of malpractice during and after routine knee surgery, he
was left wheelchair-bound and tethered to a respirator and a morphine
drip.” In 2006 he wrote an article for The New York Times titled “Crushed by My Own Reform,” saying damage caps “remove the only effective deterrent to negligent medical care.”

Any malpractice-tort crisis in Kentucky “seems to have abated, as medical malpractice claims have abated across
the U.S., including in Kentucky, according to the National Practitioners
Data Bank, to which all claims must be reported,” Wolfson writes. “The amount paid on medical malpractice claims in Kentucky, including
cases that were settled, declined $20 million in inflation-adjusted
dollars from 2005 to 2015, according to the Data Bank, while the number
of claims paid in 2015 declined to 134 from 150 five years earlier. Only 1 percent of 1,667 claims from 2005 to 2015 were for $2 million or
more, and only 5 percent were for $1 million to $2 million. Medical and
insurance groups note the figures only include claims that were paid,
not ones in which doctors prevail, which still cost money to defend.”

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