More changes proposed to state's malpractice laws

Kentucky state lawmakers have once again set their sights on the state's medical malpractice laws. This month, the Senate Health and Welfare Committee moved forward with Senate Bill 20. If it passes and is signed into law, it will cap plaintiffs' attorneys' fees in medical malpractice cases.

But it doesn't stop there. Lawmakers' proposed changes to the law includes requiring plaintiffs seeking to file malpractice claims to get affidavits of merit from medical experts before filing their petitions. These affidavits would have to state that the experts believe that the standard of care that was rendered to the plaintiff had been breached by the physician or other health care professional.

The bill allows for the affidavit requirement to be waived if medical review panels briefed on the plaintiffs' cases rule in their favor.

Sen. Reginald Thomas, D-Lexington, is an opponent of the bill. He believes that the above provision requiring the affidavit will have "a chilling effect" since physicians loathe calling out their colleagues who are accused of negligent acts and medical errors.

The lead sponsor of SB 20, Sen. Ralph Alvarado — a Winchester doctor who is the Republican senator representing Kentucky's 28th District — claims that the proposed changes would align the state with others that have passed similar malpractice laws.

If signed into law, SB 20 caps the fees for plaintiffs' attorneys relative to the size of the award for damages. For instance, with a plaintiff verdict of $200,000, attorneys would receive no more than $60,000 in fees. A million-dollar damage award would cap attorneys' fees at $140,000, according to Alvarado.

SB 20 also proposes allowing health care providers to charge fees when anyone besides the patient seeks copies of the medical records for the patient.

A final humanitarian proposal in SB 20 allows for health care providers who offer their sympathy and/or condolences for a patient's pain, suffering and death to be legally protected. Their words would not be able to later be used against them in any subsequent malpractice claims.

While on the surface, it sounds appealing, as plaintiffs would theoretically receive a larger share of the damage award pie. But there is a big caveat — it can discourage attorneys from trying malpractice cases for their clients.

Medical malpractice litigation is expensive to litigate and generally rather complicated, as successful cases rely on testimonies from medical experts in that field who also charge hefty fees for their consultations, case reviews and testimonies.

Sen. Thomas argues that the "bill is designed for one purpose only . . . to protect health care providers and hospitals and get attorneys out of [the medical malpractice] business."

These newest proposals come on the heels of sweeping changes in 2017 to the state's medical malpractice system.

Last year, the GOP-majority legislature passed a law to set up medical provider panels responsible for reviewing plaintiffs' claims of medical errors. The panel would issue opinions on the merits of each case before they could be tried in court. However, the law was challenged and remains pending in the court.

Kentucky residents with potential malpractice claims may want to keep track of the bill's progress, as it could have repercussions on the viability of their claims.

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