Until recently, Kentucky was something of a legislative throwback to the days before tort reform, treating medical malpractice lawsuits in much the same way any other type of personal injury case was treated. Attempts at reforming Kentucky medical malpractice law were largely unsuccessful until 2017, when a bill establishing medical review panels as a prerequisite to filing most medical malpractice lawsuits was passed by state lawmakers and signed into law by the governor. If you are thinking of filing a medical malpractice lawsuit in Kentucky, read on to learn more.
A medical malpractice case -- for injury or death -- must be filed within one year of when the injury was discovered (or reasonably should have been discovered). While the statute of limitations says that no medical malpractice suit may be brought more than five years from the actual act or omission causing the injury (regardless of when it was, or reasonably should have been, discovered), Kentucky courts have suggested that this over-arching five-year limit is unconstitutional. As such, Kentucky effectively operates with a "discovery rule" system requiring medical malpractice cases to be filed within one year of when the injury should have been discovered.
In 2017, new Kentucky legislation was passed mandating that no medical malpractice lawsuit can be filed against a health care provider unless the injured patient:
Once selected and assembled, the panel will review medical records, hear witness testimony, and evaluate other evidence. Within 30 days of the close of evidence, the panel must give an opinion as to whether or not the evidence supports a conclusion that each named defendant complied with the appropriate standard of care as alleged in the complaint, and whether the defendant's conduct was "a substantial factor in producing a negative outcome for the patient", as alleged in the complaint.
A few other notes on the medical review panel process:
While there are no strict statutory requirements with regard to expert witnesses in Kentucky medical malpractice cases, you will almost certainly need expert testimony to prove your case, unless the facts themselves establish a prima facie case of negligence. A prima facie case in one in which the injury could not have occurred absent negligence. For example, a foreign object left inside your body that causes an infection would be a prima facie case of medical malpractice. You don’t need an expert to attest to the fact that 1) leaving a sponge in your body is negligent, and 2) but for the presence of the foreign body, you would not have been injured. This is a very plaintiff-friendly facet of Kentucky medical malpractice law, because it allows plaintiffs to avoid the cost of medical expert witnesses in prima facie cases.
Kentucky does not have any cap on non-economic damages in medical malpractice cases. This can lead to very favorable verdicts for plaintiffs.
Doctors, physician groups and health care companies have cited the lack of damage caps in Kentucky medical malpractice law as a major "deficiency", and some argue it has had a chilling effect on the growth of the health care industry in Kentucky. The potential for a devastating verdict is very real, and many health care corporations believe the risks of operating in Kentucky outweigh the potential financial benefits. Trial lawyers and plaintiff advocate groups, however, are very supportive of the straightforward nature of Kentucky law, and the state population, thus far, seems to agree that damage caps and other limitations are unnecessary.
Kentucky operates under a pure comparative fault system, meaning that a percentage of fault can be assigned to each party to the case, and any verdict is apportioned accordingly. Since Kentucky is a pure comparative negligence state, any fault attributed to the plaintiff simply reduces the plaintiff’s award by an amount equal to the plaintiff's share of the blame. It does not bar the plaintiff from recovery. For example, in a medical malpractice case where the patient is awarded $100,000 in total damages, but is also found to be 35 percent at fault (by ignoring the doctor's after-care instructions), the patient will receive $65,000 (which is the original $100,000 award reduced by 35 percent).