No. 2005-14 Judicial malpractice threatens treatment for elderly 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- Summary 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 Skyrocketing 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 some expectant 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. homes. 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 Jim Waters 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 Phone: 270-782-2140 Fax: 305-675-0220 www.bipps.org email@example.com Permission to reprint Perspective commentaries, in whole or in part, is hereby granted, provided the author and his affiliations are cited. Authors are available for The Bluegrass Institute is an independent, nonpartisan association of writers, speakers interviews by contacting the and thinkers from across Kentucky committed to analyzing state and local public policy, Institute. and conveying alternatives that are more in concert with the founding ideas of America: individual liberty, economic freedom, personal responsibility and a respect for others.
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