The Kentucky Senate has passed a bill which would make significant changes to how medical malpractice claims proceed and how much attorneys can receive in compensation.
The bill, which must still pass the House before moving to the Governor, includes the following:
- Any medical malpractice lawsuit must have an Affidavit of Merit included with the initial filings. This document is executed by a doctor and says the doctor believes the lawsuit has merit. If a medical review panel (established several years ago) finds in favor of a patient, the affidavit requirement is satisfied. If the panel finds in favor of the medical provider, the patient can overcome this finding by providing a subsequent Affidavit of Merit.
- Attorney contingency fees would be capped at 33 percent of any award.
- Statements from doctors and nurses expressing condolences or apologies cannot be used in a medical malpractice lawsuit as evidence of fault.
“This bill mirrors the state of the law across much of the country,” said Charles E. Boyk, an Ohio Personal Injury Attorney with Charles E. Boyk Law Offices, LLC. “There is a belief among many lawmakers that medical malpractice cases are frivolous and often result in unrealistic or unfair award to plaintiffs. This bill seeks to ensure that cases that are brought before the court are determined to have some measure of merit by others in the medical field.”
The affidavit of merit has four requirements. First, the doctor executing the affidavit must have reviewed all reasonably available medical records related to the claim. Second, the doctor must receive more than 50 percent of his revenue from the provision of care. This eliminates any concerns about doctors setting up enterprises for the sole purpose of collecting fees for signing affidavits of merit. Third, the doctor must believe the standard of care was breached by at least one of the defendants. Finally, the doctor must be of the opinion that the breach caused the injury.
One positive change in the law for patients is the requirement that hospitals provide one full copy of a patient’s medical records, free of charge. The law also puts a cap on the per-page charge that can be assessed for additional copies of records and creates exemptions to any fee for certain pro bono services.
“On the whole, this will not operate to impede the prosecution of valid claims of medical malpractice,” said Boyk. Proper legal counsel can ensure that even the tallest hurdles to justice can be cleared.