By David L. Haney
Are personal injury lawsuits impacting access to healthcare in Kentucky? That’s a question many have considered since a 2011 study commissioned by the Commonwealth of Kentucky found that a lack of tort reform was a potential impact on our caregiver workforce capacity.
For the past six years, I have represented numerous Kentucky physicians who have encountered unduly burdensome medical malpractice lawsuits. If you are a doctor or caregiver working in Kentucky, the state’s medical malpractice liability climate poses a significant amount of risk when compared to surrounding states because of its unstable and inconsistent liability environment.
Doctors, hospitals and caregivers deal with litigation on a regular basis. Sometimes this litigation is warranted. However, in my tenure I have seen the occasional frivolous case produce a hefty settlement and put into question a doctor’s healthcare license. Fear of massive judgments in arguably meritless lawsuits against medical professionals can also drive good doctors to relocate to other states. This harms Kentucky patients who already often struggle to find dependable access to care.
Kentucky currently has no limits on noneconomic damages, such as pain and suffering. This makes it more difficult for physicians to obtain appropriate insurance coverage to help mitigate foreseeable risk.
When battling lawsuits that involve healthcare providers, plaintiff attorneys routinely demand amounts that exceed physicians’ insurance policy limits. Because of this, insureds often push for quick settlements on what would otherwise be defensible cases because of the potential risk and costs associated with a legal battle.
When a physician settles a medical malpractice claim, it can bring unwarranted ramifications on his or her professional license. Healthcare settlements are reported to the National Practitioner Data Bank (NPDB) as well as the Kentucky Department of Insurance. Some organizations are required to refer to the NPDB before hiring or granting clinical privileges. The Department of Insurance then forwards the name of the physician to the appropriate licensure board for review of his or her ability to provide care in Kentucky.
Given the complexity of medical issues and the extent of medical records involved in these cases, defense costs through trial can easily reach or exceed $250,000, prompting a settlement just to save costs and avoid the uncertainty of a trial. If the settlement does amount to $250,000 or greater, the Kentucky Board of Medical Licensure is required to “review” the case to determine if further investigation is warranted. Physicians will normally retain an attorney to represent them throughout this process as well, especially if an investigation or licensure board hearing results from the review.
This is a nationwide problem, but Kentucky’s litigation climate is far worse than most other states. According to the US Chamber’s Institute for Legal Reform, Kentucky ranks 39th in the nation for its legal liability climate.
Additionally, Louisville was ranked the seventh largest market in America for the most trial lawyer television advertisements, which primarily focus on fishing for new clients. Kentucky’s neighbors like Indiana and Tennessee have already enacted legal reform, yet Kentucky continues to lag behind.
Our legal system does not adequately protect caregivers, hospitals and other health care facilities from the high costs and risks associated with what would otherwise be defensible claims. This increases costs for consumers and diverts funds away from care. Various reform approaches have attempted to create a stable and consistent environment for healthcare providers. Sadly, many have fallen prey to our state’s political climate.
We hear a lot of talk in our state about improving patient care in Kentucky. One important way to address this is through commonsense medical liability reform that protects access to the courts while also helping reduce health care costs and make our state attractive to new caregivers and providers.
David L. Haney is an associate at Gwin Steinmetz & Baird and practices law in the areas of insurance, long term care and medical malpractice litigation.