Monday, November 5, 2007

Medical Malpractice Legislation in Kentucky

Returning to the tort reform theme, yesterday's Lexington Herald Leader reported that Kentucky Governor Ernie Fletcher has proposed a compromise bill that would attempt to make the insurers happy without imposing caps on medical malpractice awards in actual litigation. How does he propose to accomplish this? Well, it seems that Gov. Fletcher wants to eliminate frivolous cases by having a review board look at all medical malpractice claims and certify their merit before the case can be filed.

Who would sit on the review board? You guessed it - doctors. Talk about the fox guarding the hen house.

Now, I have no problem with states that require an affidavit from a doctor certifying the merits of the case, so long as the plaintiff can choose the doctor. That approach seems reasonable. But, when you move to an "independent" board (likely one appointed by the governor), you open up the process to politics. Is a pro-insurance governor going to appoint people to the board who will take a dim view of any medical malpractice case? On the flip side, will a pro-consumer governor (if any actually exist) appoint board members who will certify everything? This is not a good approach.

The fact is, the rules in place in Kentucky (and most everywhere else) are already capable of achieving the stated goal of Governor Fletcher's plan - to eliminate the frivolous lawsuit. There are the provisions of Rule 11, plus the added pleading requirement that a plaintiff obtain a pre-filing certification that the case has merit.

No, I am afraid this is just another attempt to permit the insurance companies to achieve their goal of writing policies while eliminating the risk that they might have to pay out on claims.

On a related note - readers who have been around for a year or so will recall my interest in tort reform in Ohio. That was occasioned by the fact that I was involved in a pharmacy misfill case up there. That case is now over, but my interest in the Ohio attempt at tort reform (caps on punitive and non-economic damages) survives. I am awaiting a decision from the Ohio Supreme Court in the Arbino case. That case was argued in April, so one would think a decision would be forthcoming soon.


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