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The Law of Medical Malpractice in Kentucky:

A Survey of Basic Considerations

This article provides an overview of Kentucky medical malpractice law. The Bluegrass State generally treats malpractice claims the same as other types of negligence claims, with a few important exceptions. Kentucky lawmakers have been deterred from placing a statutory maximum limit on monetary damages, as many other states have done, because the Kentucky Constitution expressly prohibits such limits.

Because it is useful for laypersons who have been injured by healthcare treatment to have some understanding of the law, this article will describe Kentucky law in plain language with minimal use of legal jargon, so that the material is accessible to nonlawyers as well as legal practitioners.

Section I below summarizes broad principles and concepts. Sections II through XII examine some of the mechanics of filing and litigating a medical malpractice lawsuit in Kentucky.

To jump directly to any topic in the Table of Contents, simply click on it.

I. Overview of Basic Principles and Concepts
II. Filing Deadlines for Medical Malpractice Claims
III. Expert Reports and Other Requirements
IV. Immunities and Limitations on Liability
V. Medical Expert Witnesses
VI. Comparative Negligence / Proportionate Liability
VII. Limitations on Damages
VIII. Limitations on Attorney Fees
IX. Patient Compensation Funds
X. Apologies and Sympathetic Gestures
XI. Communications with Treating Physicians
XII. Disclaimer

I. Overview of Basic Principles and Concepts

Under Kentucky law, a medical negligence claim, like any negligence case, requires proof that the plaintiff was owed a duty of care, the duty was breach, and he or she was injured as a result.
“If a physician’s service falls below the expected level of care and skill and this negligence proximately caused injury or death, then all elements of a malpractice action have been met,” the Kentucky Court of Appeals has said. Morrison v. Jaenicke, No. 2005-CA-949, 2006 WL 3040000 (Ky. App. Oct. 27, 2006); see also Jenkins v. Best, 250 S.W.3d 680 (Ky. App. 2007).

II. Filing Deadlines for Medical Malpractice Claims

Basic Time Limit

Under Kentucky law, a plaintiff generally must file a medical malpractice claim within one year. The “statute of limitations” commences running at the time the injury is first discovered or in the exercise of reasonable care should have been discovered. Ky. Rev. Stat. Ann. § 413.140(1)(e), (2). It is worth highlighting that Kentucky applies what is known as the “discovery rule,” which says the clock should not start ticking until it is possible to discover the negligence. That is, the statute of limitations commences once the plaintiff knew, or should have known, of the medical negligence. Harrison v. Valentini, 184 S.W.3d 521 (Ky. 2005); see also Wiseman v. Alliant Hospitals, Inc., 37 S.W.3d 709 (Ky. 2000); Elam v. Menzies, 594 F.3d 463 (6th Cir. 2010).

No Outer Time Limit

Although a separate Kentucky provision purports to establish an outer limit by providing that no malpractice suit may be brought after five years, this provision (in legal terminology a “statute of repose”) was held unconstitutional by the Kentucky Supreme Court in McCollum v. Sisters of Charity of Nazareth Health Corp. There, the high court held that the five-year limitation infringes the Kentucky Constitution’s “open courts” provisions guaranteeing each person the right to sue for injuries, because certain claims are unjustly kept out of court. 799 S.W.2d 15 (Ky. 1990); Ky. Const. § 14, 54 & 241; see also Ky. Rev. Stat. Ann. § 413.140(2).

In McCollum, a patient underwent surgery on his injured left femur, and 13 years later began experiencing pain in that leg. His doctors discovered that an orthopedic screw had been left in the tissue of his leg, and additional surgery was required to remove the screw. When the patient sued over the original surgery, the defendants argued that he had waited too long to bring his malpractice lawsuit because over five years had passed since his original surgery. The case found its way to the Kentucky Supreme Court, which invalidated the statutory five-year outer limit on constitutional grounds, holding that the patient’s multi-year delay in filing suit should not prevent him from proceeding with his lawsuit, as long as he reasonably could not have discovered the misplaced orthopedic screw in his leg before he did.

Continuous Course of Treatment Doctrine

Even though a plaintiff who knows (or should have known) about negligent medical treatment generally must file suit within one year, the time limit can be extended if the patient received continuous treatment from the same healthcare provider.

In adopting the “continuous course of treatment doctrine,” the Kentucky Supreme Court also explained “while treatment continues, the patient’s ability to make an informed judgment as to negligent treatment is impaired.” Harrison v. Valentini, 184 S.W.3d 521 (Ky. 2005).

Ultimately, the Harrison court concluded that the patient’s lawsuit was timely because, while over three years had passed since her allegedly botched breast-lift surgery, she filed the suit within one year of her last appointment with the doctor who had performed the operation.

Injured Patients Who Are Minors

Special time limits apply to malpractice lawsuits involving children. If a child is injured by healthcare treatment, the clock for bringing a lawsuit ordinarily does not start ticking until he or she reaches the age of majority, a Kentucky statute suggests. Ky. Rev. Stat. Ann. § 413.170(1).

III. Expert Reports and Other Requirements

Medical Expert Reports

Unlike many states, Kentucky has not adopted a statute mandating that plaintiffs provide evidence up front that a malpractice claim has some merit, such as by submitting a medical expert’s certification early in the litigation. Many other jurisdictions have adopted such requirements, with the stated goal of weeding out weak or unsupported medical malpractice claims before the defendant healthcare provider(s) have incurred significant legal expenses.

Arbitration

Arbitration is a method of resolving disputes outside of court. The parties must agree to have the case heard by a professional arbitrator rather than a judge and jury. Unlike some states, Kentucky has no statute specifically defining the rules and procedures that apply in medical malpractice arbitrations.

Duty to Report Settlements to Insurance Commissioner

Under Kentucky law, malpractice settlements and judgments must be reported to the commissioner of the Department of Insurance. The commissioner then must forward the information “to the appropriate licensure board or regulatory agency for review of the fitness of the health care provider to practice his or her profession.” Ky. Rev. Stat. Ann. § 304.40-310.

On its face the statute also requires the parties to obtain the commissioner’s approval for certain settlements, but this appears to pertain to a portion of the statute that was held unconstitutional in McGuffey v. Hall, 557 S.W.2d 401 (Ky. 1977).

IV. Immunities and Limitations on Liability

Emergency Medical Care

Kentucky does not impose special statutory obstacles to suing emergency room physicians and nurses, as some states do.

Government Defendants

Patients who receive negligent treatment at government-owned hospitals (or other facilities) may confront the issue of whether the hospital and its personnel have immunity from suit. In Kentucky, several cases of this type have involved University of Kentucky hospitals. See, e.g., Withers v. University of Kentucky, 939 S.W.2d 340 (Ky. 1997); Pauly v. Chang, 498 S.W.3d 394 (Ky. App. 2015).

In Pauly, an emergency room patient died while waiting for an operating room, and the defendants raised immunity defenses when a malpractice suit ensued. The Kentucky Court of Appeals agreed that the University of Kentucky medical center was entitled to governmental immunity and that, under the facts of the case, three administrative employees accused of failing to ensure an operating room’s availability had qualified immunity. But the case was permitted to proceed to trial on malpractice claims against the treating physicians. Cf. Ky. Rev. Stat. Ann. § 164.941 (authorizing compensation fund for malpractice claims against University of Kentucky entities).

Guarantee of Treatment Results

Before a healthcare provider can be held liable based on breaching a guaranty or warranty of a healthcare procedure’s outcome, there must be a written document signed by the healthcare provider. Ky. Rev. Stat. Ann. § 304.40-300.

Good Samaritan Statute

Like many states, Kentucky has a “Good Samaritan” law that shields doctors, nurses, and other healthcare providers from liability if they provide unpaid assistance at the scene of an accident or other emergency. Ky. Rev. Stat. Ann. § 411.148.

Kentucky also limits certain types of liability for rendering emergency treatment with automated external defibrillators, Ky. Rev. Stat. Ann. § 311.668, or epinephrine auto-injectors, Ky. Rev. Stat. Ann. § 311.647.

V. Medical Expert Witnesses

Who Qualifies?

Kentucky has more permissive rules that most jurisdictions concerning who many testify as an expert medical witness. Elsewhere it is common to find statutes requiring a medical expert to practice in the same medical specialty as the defendant or to maintain an active clinical practice, but Kentucky has chosen not to adopt firm rules of this kind.

In Tapp v. Owensboro Medical Health System, Inc., 282 S.W.3d 336 (Ky. App. 2009), doctors were deemed to be proper expert witnesses in lawsuits involving alleged malpractice by nurses. The Kentucky Court of Appeals rejected the idea that a doctor might hold nurses to an unreasonable standard of health care. The court also emphasized that the jury would be able to decide how much importance to give the doctor’s testimony regarding the nurses’ standard of care.

On the other side of the coin, in Savage v. Three Rivers Medical Center, 390 S.W.3d 104 (Ky. 2012), a nurse practitioner was found qualified to testify as an expert concerning the proper interpretation of certain x-rays. “The expertise needed to qualify as a witness competent to testify about x-rays is not confined to medical doctors,” the Kentucky Supreme Court concluded.

Reliability Challenges

Lacking other express restrictions, Kentucky handles the issue of who may testify as a medical expert by relying on Kentucky Rule of Evidence 702. This generally applicable evidentiary rule says that an expert witness (of any kind) must possess the requisite “knowledge, skill, experience, training, or education,” and his or her testimony must be scientifically reliable. Ky. R. Evid. 702; see also Savage, supra.

In other words, Kentucky courts use the same rules to decide who is qualified to serve as a medical expert in a particular case as they use in making these determinations for experts in other fields.

Need for Expert Testimony

Although expert medical testimony is required in the vast majority of malpractice cases, there are narrow exceptions. First, no such testimony is needed if the medical error and its consequences would be obvious to a layperson (in legal terminology “res ipsa loquitur” cases) — an extreme example being where a surgeon mistakenly amputates a patient’s right leg instead of the left. Second, no medical expert testimony is needed if the defendant has made certain admissions that make his or her negligence apparent.

But if these exceptions do not apply, a plaintiff should be prepared to retain a medical expert witness or risk having the case dismissed on summary judgment. Love v. Walker, 423 S.W.3d 751 (Ky. 2014).

VI. Comparative Negligence / Proportionate Liability

Sometimes a healthcare provider will try to pin blame for a poor treatment outcome on the patient, accusing him or her of neglecting to follow post-surgery instructions or supplying inaccurate health history information, for instance. In cases where a patient bears some fault for causing his or her own medical injury, Kentucky applies the doctrine of “comparative negligence.” Under this doctrine, a careless or negligent patient’s lawsuit is not barred completely, but any monetary damages obtained are reduced.

For example, if the plaintiff was 25 percent at fault for the bad treatment outcome and the physician 75 percent, the plaintiff can recover monetary damages from the physician but the amount will be reduced by 25 percent. Ky. Rev. Stat. Ann. § 411.182; Bayless v. Boyer, 180 S.W.3d 439 (Ky. 2005).

On a different issue, if there are multiple defendants who pays what share of the monetary damages? Under Kentucky law, the jury in such situations “may apportion damages in different percentages against the defendants or may return a verdict of joint and several liability against two or more defendants.” Ky. Rev. Stat. Ann. § 304.40-290; see also Ky. Rev. Stat. Ann. § 411.182; Savage, supra Jones v. Stern, 168 S.W.3d 419 (Ky. 2005).

Divvying up liability becomes more complex if the plaintiff settles with certain defendants and proceeds to litigate against others. Kentucky addresses this situation in a statute. Ky. Rev. Stat. Ann. § 411.182(4).

VII. Limitations on Damages

No Statutory Limits

Money claimed by a plaintiff as compensation for a loss is referred to as “damages.” Unlike some states, Kentucky does not impose a statutory upper limit, or “cap,” on damages in medical malpractice cases.

In fact, such a law would probably violate the Kentucky Constitution, which states “the General Assembly shall have no power to limit the amount to be recovered for injuries resulting in death, or for injuries to person or property.” Ky. Const. § 54.

This provision has dissuaded Kentucky lawmakers from attempting to impose a cap on medical malpractice damages, as many other states have done.

Pain and Suffering

Consistent with the constitutional provision mentioned above, Kentucky imposes no statutory cap on damages for pain and suffering. But a jury can choose to award zero damages for pain and suffering even if it finds there was malpractice. “A zero verdict for pain and suffering may sometimes be appropriate,” according to the Kentucky Supreme Court. Bayless, supra.

Other Provisions

Addressing wrongful death cases involving children, a Kentucky statute says that the parents may recover for “loss of affection and companionship that would have been derived from such child during its minority,” in addition to all the usual types of damages. Ky. Rev. Stat. Ann. § 411.135.

Punitive Damages

Punitive damages are awarded to a plaintiff for the purpose of punishing an especially culpable defendant. Unlike other types of damages, they are not limited by the amount of the plaintiff’s proven loss.

The threshold for punitive damages is high, however, because there must be proof that the defendant acted with oppression, fraud or malice, as demonstrated by “clear and convincing” evidence. Ky. Rev. Stat. Ann. § 411.184; see also Id., § 411.186.

In addition, employers are immune from punitive damages unless they “authorized or ratified or should have anticipated the conduct in question.” Ky. Rev. Stat. Ann. § 411.184(3).

In University Medical Center, Inc. v. Beglin, a hospital could not be held liable for punitive damages because there was no way it could have anticipated that its employees would delay delivering blood to the operating room where it was urgently needed. Nor had the hospital authorized or ratified such conduct. The Kentucky Supreme Court reversed a $3.75 million punitive damages award, explaining that “this appears to be precisely the sort of circumstances” under which the legislature intended employers to have immunity from punitive damages. 375 S.W.3d 783 (Ky. 2011).

VIII. Limitations on Attorney Fees

Unlike some states, Kentucky does not have a medical malpractice statute that specifically limits attorney fees.

IX. Patient Compensation Funds

Medical malpractice claims against the University of Kentucky system potentially may be covered by a patient’s compensation fund. Ky. Rev. Stat. Ann. § 164.941.

As for other malpractice claims, in the 1970s state lawmakers attempted to create a broader patient’s compensation fund to provide “umbrella” coverage for physicians and hospitals, but it was held unconstitutional in McGuffey v. Hall , 557 S.W.2d 401 (Ky. 1977).

X. Apologies and Sympathetic Gestures

If a healthcare provider apologizes for a poor treatment outcome, can the apology be used in court as evidence of negligence? Unlike some states, Kentucky has no statute directly addressing this issue.

But on a related matter, if a healthcare provider offers to reimburse a patient for lost wages, rehabilitation care, and so forth, this gesture may not be used as “evidence of an admission of liability.” Ky. Rev. Stat. Ann. § 304.40-280.

XI. Communications with Treating Physicians

Under Kentucky law, a patient generally has no right to prevent a physician from disclosing the content of communications. “For better or worse, our jurisprudence has been unwavering in its rejection of the patient-physician privilege,” the Kentucky Supreme Court noted in a 2015 case. The bottom line is that “no testimonial privilege exists in Kentucky for communications made between a patient and physician for the purpose of medical treatment” — with the exception of communications in the mental health therapy context. Caldwell v. Chauvin, 464 S.W.3d 139 (Ky. 2015).

But while Kentucky law may not safeguard the privacy of medical consultations, federal law supplies important protections by virtue of the Health Insurance Portability and Accountability Act of 1996.

HIPAA comes into play when defense counsel seek to question a plaintiff’s treating physicians informally, outside of official court proceedings. In Caldwell the Kentucky Supreme Court examined whether so-called “ex parte” communications are permissible, summarizing its conclusion as follows:

Based on our review of Kentucky and federal law, we conclude that no law inhibits litigants from seeking ex parte interviews with the opposing party’s treating physicians. But the disclosure of medical information during those ex parte meetings is controlled by HIPAA. For disclosure to be permitted, the party must first obtain a court order authorizing disclosure in a voluntary ex parte interview.

XII. Disclaimer

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