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In Kentucky's General Assembly this week, the Democrats and the Republicans squared off over the issue of medical malpractice litigation. It appears that the GOP wants to make it tougher to sue doctors and hospitals, while the Dems are more interested in protecting patients' rights than protecting doctor's pocketbooks.
A sweeping measure to regulate everything from trial attorney fees, medical record copying charges and how malpractice lawsuits are brought passed the state Senate Health and Welfare Committee today.
The legislation was described as an omnibus medical tort-reform bill by sponsor Sen. Ralph Alvarado, R-Winchester. Among its many provisions, Senate Bill 20 would require medical malpractice lawsuits to contain an affidavit of merit. That’s a document stating that at least one doctor agrees the claim has merit.
A medical review panel opinion in favor of a patient would fulfill the affidavit of merit requirement. Senate Bill 4 from 2017 created panels of experts to review claims of medical error or neglect. If the medical review panel finds in favor of the medical provider, however, the patient would still have to get an affidavit of merit to advance to court.
A second provision would impose contingency caps on attorney fees in medical malpractice cases. The limits in this provision would still allow a lawyer to make $60,000 of contingency fees if their client wins $200,000 or $140,000 if their client wins $1 million, according to the language in SB 20.
A third provision would attempt to exempt medical peer review discussions from discovery, a pre-trial procedure in a lawsuit to obtain evidence. Medical peer review is used to determine whether accepted standards of care have been met.
Candid peer review can be a source of information for physicians to learn from unexpected events and prevent future errors. Alvarado said confidentiality of these discussions has traditionally been viewed as necessary to their effectiveness.
A fourth provision is known as the “I’m sorry” clause. It would allow health care workers to express condolences or apologies to patients or families without fear of having those words used against them in a lawsuit.
“A simple apology can defuse the anger a patient or their family feels when a mistake has occurred,” Alvarado said.
A fifth provision would regulate fees for copying medical records.
“This bill does not limit a patient from getting their medical records, but it would limit third-parties with a commercial interest from obtaining these records without paying the fees listed in this bill,” Alvarado said.
Sen. Reginald Thomas, D-Lexington, said SB 20 would do two things to substantially reduce the rights of a patient who has been harmed by a doctor’s recklessness. He said it would be unlikely that any doctor would sign off on an affidavit stating that a patient had a legitimate medical claim against another doctor.
“That is just not going to happen as a practical matter,” Thomas said. “Everybody should have their day in court.”
He said placing artificial caps on attorney fees would discourage lawyers from taking medical malpractice cases.
Alvarado said other states with similar laws on the books haven’t experienced the problems expressed by Thomas.
“I feel it is a protection against predatory legal practices in Kentucky,” said Alvarado. “Delaware and 23 other states have implemented this kind of policy and trial attorney practices in those states are alive, well and profitable.”
SB 20 now goes to the full Senate for further consideration.
(iLocalNews appreciates the assistance of Robert Weber of the Kentucky Legislative Research Commission in the preparation of this update. Photographs provided by LRC Public Information.)