By Michael G. Adams
Special to NKyTribune
For too long, Kentucky has been a favored hunting ground for trial attorneys due to its designation as one of the nation’s worst places for legal liability, which has made it difficult to attract physicians, hospitals and businesses to the Commonwealth.
Gov. Bevin
Thankfully, Gov. Matt Bevin and the General Assembly made significant progress in reforming our legal liability climate during the 2017 legislative session. These reforms send a message: Kentucky is now a better place for business and healthcare.
Because of commonsense solutions like medical review panels, judgment interest rate reform, and landlord liability protection, we can expect fewer frivolous lawsuits and a more consistent liability system. That sign at the border which previously warned visitors of our unfriendly legal climate now reads, “Kentucky is open for business.”
According to a 2014 report by the National Conference of State Legislatures, 17 states have enacted medical review panels. They will not, as fearmongers argue, prohibit lawsuits from going to trial. On the contrary, they will do even more to ensure justice is served in a timely manner.
Under the system, after a claim is filed an independent three-doctor panel is tasked with assessing whether the standard of care was breached. Each party has input over the selection of two of the panelists, and those two panelists in turn select a third independent member. A lawyer then serves as an independent chair. The panel cannot stop a case from proceeding to court; it simply renders an opinion which can be admissible in some cases.
Opponents allege that panels will delay access to the courtroom, but this criticism is misguided, as the law imposes a time limit on the panel to ensure an expeditious outcome, one that may often prove faster than the current legal process.
The General Assembly also passed much-needed legislation to address Kentucky’s disproportionately high judgment interest rate, reducing it from 12 to 6 percent. Judgment interest accrues from the moment judgment is rendered and compounds as the case works its way through the appeals process. Thus, the cost of the lawsuit rises even as legal due process takes place. The smart reform enacted this year removes a major burden for Kentucky businesses and caregivers.
Have you ever wondered why it’s difficult to find a pet-friendly apartment? It’s because landlords are held strictly liable for bites by dogs owned by their tenants. Fortunately, the General Assembly has corrected this injustice.
Kentucky made great strides in meaningful liability reform this year. Gov. Bevin and our legislative leaders proved they are aware of how important these issues are to Kentucky’s business and caregivers. However, important work remains.
At the top of the list is medical peer review protection. Currently, Kentucky is one of only two states that does not guarantee providers a confidential peer review process, enabling them to identify and take corrective measures without fear of liability for having done so.
The absence of confidential peer review limits the ability of our caregivers to openly discuss how to continuously improve the care provided to patients—something we should all want. The General Assembly should make medical peer review protection a priority in 2018 to ensure ongoing innovation and best practices in healthcare.
Kentucky should also consider contingency fee reform to prohibit trial lawyers from taking advantage of folks with “big payday” promises that often serve only to enrich the attorneys.
Lastly, we should follow the successful lead of other states and move to cap non-compensatory damages. Reasonable caps would allow justice to be served to injured persons while bringing an element of stability to our liability system. They would prevent out-of-control verdicts from scaring good businesses and caregivers away from Kentucky.
We tried reform in 1988, when the General Assembly required “a flagrant indifference to the rights of the plaintiff” to establish grounds for an award of punitive damages. Employing the so-called jural rights doctrine, the Kentucky Supreme Court ruled this modest reform unconstitutional.
It’s time to remedy the situation with a constitutional amendment to place reasonable caps on non-compensatory damages.
Every Kentucky resident, business and caregiver deserves a fair legal system that is unencumbered by frivolous lawsuits and self-interested trial lawyers. By continuing to reform our liability climate, we can make that dream a reality.
Michael G. Adams serves as legal counsel for the Partnership for Commonsense Justice, Kentucky’s voice for legal reform.
Mr. Adams: Your first paragraph triggers a doubt in my mind. Has any business looking at Kentucky for a new location seriously made legal liability a major bullet point in their decision to move here. I’m suggesting that legal liability is probably far down on their list of reasons to choose or not choose the commonwealth. Is the medical review panel just another word for republican “death panel”. How many practicing MD’s are going to give up a day of revenue producing patients to sit on a board with little or no pay. Many doctors are booked weeks or even months in advance. I think these boards may very well wind up composed of retired physicians or those with so little practice that they may not be up to date on recent advancements in the field. Its just another layer of bureaucracy that republicans decry except when it works in their favor.
I would suppose that your employment would lead you to have a certain perspective on legal issues but some of the things in your article seem beyond perspective.