Judicial malpractice threatens treatment for
Elderly Kentuckians may face dimin- vere than those in traditional medical By Bobby E. Reynolds
ished care if judicial tactics being applied malpractice cases.
in Arizona are adopted in Kentucky.
The ruling has serious legal ramifications
The Arizona Supreme Court recently that heighten the need for medical mal-
ruled that the austere penalties of the practice reform in Kentucky. Policymak-
Copper State’s elder-abuse law apply to ers should act during the 2006 legislative (Total Word Count 758)
physicians involved in ordinary malprac- session of the Kentucky General Assem-
tice claims. The court’s ruling is the first bly to protect doctors who, under the
of its kind. type of statute upheld by the Arizona
Supreme Court, could face criminal malpractice
Standard medical malpractice cases usu- charges for a single act of alleged mal- insurance premium
ally involve doctors being accused of practice. rates already force
negligence like leaving a sponge in a pa-
tient following surgery or issuing the Dire economic consequences could result
wrong prescription. However, in McGill from a failure to stymie the nationwide Kentucky mothers
v. Albrecht, a physician was sued for not threat resulting from judicial activism to drive hours to
ordering a routine test for an elderly, in- displayed by Arizona’s justices. Their deliver their babies.
capacitated patient. ruling would cause medical malpractice
insurance premiums to rise even higher Now, a new court
The defendant, who had been the pa- in Kentucky as providers recognized the ruling could
tient’s doctor for more than two years, need to account for future claims as a threaten the
performed two physical examinations but result of the potential penalties included availability of
failed to order a standard annual mam- in elder-abuse statutes.
mogram for the woman. She subse- medical care for
quently died of cardiac arrest due to a High premiums already have a severe another vulnerable
condition that apparently resulted from economic impact on industries that serve population -- the
breast cancer. the elderly. elderly.
The woman’s estate sued, claiming her Several nursing home chains, including
death was related to the treatment of the Extendicare and Health Ventures, have
cancer that spread as a result of the doc- been forced to sell facilities in Florida
tor’s failure to order a mammogram. But and Arkansas because of an inability to
the estate also extended its accusations a obtain liability coverage. Six of the na-
step beyond most malpractice cases by tion’s largest nursing home companies
accusing the physician of violating Ari- have filed for bankruptcy in the past two
zona’s elder-abuse statute. years largely as a result of uncontrolled
costs related to medical liability premi-
Arizona’s highest court ruled the doctor ums and tort-related expenses.
is liable under the elder-abuse decree, the
penalties for which are much more se- A lack of meaningful reform has already
Continued on Reverse
caused ob-gyns to stop delivering babies required for big payoffs by allowing pu-
in several Kentucky counties. Now, the nitive damages to be awarded without
elder-abuse locomotive careening down the “clear and convincing proof of evil”
the track from Arizona could threaten the required in traditional cases. It also
treatment of another vulnerable popula- stretches the two-year statute of limita-
tion – elderly patients who receive a tions applied in normal malpractice cases
great amount of their care from nursing to seven years.
Kentucky policymakers should begin to
For years, trial lawyers have succeeded work in earnest toward both providing
in keeping any meaningful reform from protection against the abuse of elder-
being approved by Kentucky legislators. abuse statutes and creating a more pro-
Meanwhile, like a ductive environment in which physicians
festering wound, can practice.
If in their diagnosis and the common-
treatment, doctors must wealth’s medical If in their diagnosis and treatment, doc-
look first over their liability system tors must look first over their shoulders
shoulders at the has become a cot- at the potential of being crushed by a
tage industry that frivolous and unjust lawsuit, they will
potential of being generates millions soon lose interest in their patients. Doc-
crushed by a frivolous of dollars for tors should be fighting illnesses, not law-
and unjust lawsuit, they plaintiffs’ attor- suits.
will soon lose interest in neys at the ex-
pense of Kentucky While state politicians sit idly by, Presi-
their patients. physicians and dent Bush and congressional leaders are
their patients. working to enact malpractice reform at
the federal level. However, the most ef-
Kentucky businesses and physicians are fective policies should emerge at the
already reeling from a lack of substantive state level where lawmakers are in a bet-
malpractice reform. The state Office of ter position to assess local problems.
Insurance recorded nearly $193 million
in payouts for medical liability cases be- The commonwealth’s policymakers must
tween 1998 and 2003. The average con- act. To look the other way only dimin-
tingency fee of 33 percent would mean ishes further attempts to attract and keep
plaintiffs’ attorneys alone pocketed the physicians that Kentucky desperately
nearly $64 million of medical liability needs.
payouts during this time period.
– Bobby E. Reynolds is an attorney en-
Applying elder-abuse penalties in tradi- gaged in the private practice of law. He
tional malpractice cases creates addi- offers legal, economic and public-policy
Contact Information: tional penalties for physicians and offers analysis from a free-market perspective
trial lawyers another yet legal pot of gold for the Bluegrass Institute.
Director of Policy and
Communications to chase. It would lower the standards
P.O. Box 51147
Bowling Green, KY 42102
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