A publication of the Kentucky Center for Public Service Journalism

Voters could get amendment limiting lawsuit awards, another limiting attorney fees in malpractice

The Kentucky General Assembly would be able to pass a law limiting the amount of non-economic damages that could be awarded in personal-injury and wrongful-death lawsuits, under a bill moving to a floor vote in the state Senate.

The House may block the legislation, but a companion bill approved by another Senate committee Feb. 7 would limit the amount of attorney fees in medical-malpractice lawsuits and pose other obstacles to such suits.

Senate Bill 2 is a proposed constitutional amendment, requiring a three-fifths vote in each chamber and approval by a majority of voters in a statewide referendum at the November election. It would negate Section 54 of the 1891 state constitution, which prohibits such limits.

Senate Bill 20 would be a regular law, with several new rules for malpractice cases. In addition to the limit on attorney fees, SB 20 would require a sworn statement from a doctor saying that the lawsuit has merit. Last year, over some Republican opposition in the House, the GOP-controlled legislature required malpractice suits to be reviewed by three medical providers before proceeding. Franklin Circuit Judge Phillip Shepherd has ruled the law unconstitutional. If the law is upheld on appeal, the sworn statement would still be required.

SB 20 would limits contingency fees for plaintiffs’ lawyers in malpractice cases, to 35 percent of the first $100,000 awarded, 25 percent of the next $100,000 and 10 percent of the rest. A typical fee in such cases is 33.3 percent. The bill would also keep out of malpractice cases reviews of doctors done by other doctors and any apologies or expressions of regret by heath-care providers.

Sen. Alvarado

“A simple apology can defuse the anger a patient or their family feels when a mistake has occurred,” said Republican Sen. Ralph Alvarado of Winchester, a physician who is sponsoring both bills.

Alvarado told the Senate State and Local Government Committee that doctors and businesses in Kentucky face “unlimited risk every day” from jury verdicts. “With that risk comes the undeniable fact that you are one real or perceived accident or mistake away from watching everything that you have worked for your entire life get taken away by a single jury decision.”

Kentucky Chamber of Commerce President David Adkisson told the committee that Kentucky ranks 42nd in the nation for “uncertain legal liability” because most states have shielded businesses from lawsuits.

Democratic Sen. Morgan McGarvey of Louisville, a lawyer, “challenged Adkisson by saying that neither he nor Alvarado had shown the senators any data about liability insurance costs for Kentucky businesses or given any examples of excessive jury awards,” John Cheves reports for the Lexington Herald-Leader. McGarvey “said large trial awards are usually the result of juries disgusted by evidence of extremely bad conduct, such as children hurt or killed because of someone’s deliberate indifference.”

“You’ve testified in front of us today about the businesses that need this for their insurance,” McGarvey told Adkisson. “When those families are in those hospitals and funeral homes, will you go testify in front of them and tell them that the reason we need this is because businesses didn’t want to risk a lawsuit?”

Adkisson replied, “You’ve editorialized eloquently . . . but I would stand by everything that I’ve said, that this is a significant barrier to economic growth.”

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