No Judicial malpractice threatens treatment for elderly Elderly Kentuckians may by theredman

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									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
   jwaters@bipps.org

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