RECENT CASE LAW AND STATUTES GOVERNING MALPRACTICE CLAIMS IN KENTUCKY

When facing medical procedures, surgeries, or emergency situations, individuals and families must rely on medical professionals to apply their expertise and give the patient the best care possible. Placing trust and relinquishing all control to a medical professional most often provides great results and sincere gratitude to those professionals; however sometimes mistakes are made leaving families with often devastating results. People from all walks of life can experience medical malpractice. As law firm leaders, we closely follow cases and statutes in Kentucky that have impacted families dealing with medical negligence and malpractice. Below is a list of recent cases and statutes from Kentucky effecting medical malpractice.

KENTUCKY LAW

Franklin Circuit Court Finds Medical Review Panel Act Unconstitutional
On October 30, 2017, Judge Shepherd of the Franklin Circuit Court declared the Medical Review Panel Act to be facially unconstitutional and invalid. Specifically, the Court found that the Act violated the Equal Protection Guarantee, the Separation of Powers Doctrine, and the Open Courts and Jural Rights Doctrines. Continue Reading

New Law Creates Medical Review Panels in Kentucky, KRS §216C.005 (Ky. App. 2016)
On March 16, 2017, Kentucky Gov. Matt Bevin signed into law a new statute that requires medical malpractice plaintiffs to obtain an opinion from a medical review panel before their lawsuit can be filed in court. The Medical Review Panel Statute, KRS §216C.005, became effective June 29, 2017. Continue Reading

Brown v. Griffin, 505 S.W.3d 377 (Ky. App. 2016)
Expert witness testimony was required to prove the standard of care and breach thereof in a medical malpractice action involving an injury to a patient’s right distal ureter during a laparoscopic hysterectomy using a robotically-assisted system. The patient’s attorney had argued that the fact that the ureter had been cut during the surgery was sufficient to make out a case even without expert testimony. The Court of Appeals of Kentucky affirmed the trial court’s granting of summary judgment to the physician.

Wells v. Trover, 2016 WL 99824 (Ky. App. 2016)
The Court of Appeals of Kentucky, in discussing the one year statute of limitations applicable to medical malpractice cases, discussed the discovery rule exception. The Court found that the exception did not apply and that the one year statute of limitations barred the patient’s claim. The Court held that legal confirmation that one has been wronged is not necessary under the discovery rule. The rule merely requires that one be aware of the facts sufficient to put her on notice that her legal rights may have been invaded and by whom; uncertainty about the legal significance of those facts does not toll the limitations period. As the patient had sufficient facts to put her on notice that the physician may have invaded her legal rights, the patient’s claim was barred by the statute of limitations.

Pauley v. Chang, 2015 WL 8488910 (Ky. App. 2015)
As a matter of first impression, the Court of Appeals of Kentucky held that a patient’s fault in causing his injuries that necessitated the medical treatment was not available as a defense to a claim for medical malpractice.

Sargent v. Shaffer, 467 S.W.3d 198 (Ky. 2015)
In a claim where a patient brought a medical malpractice action against an orthopedic surgeon, claiming he failed to obtain her informed consent before performing a laminectomy and decompression procedure, the Supreme Court of Kentucky discussed the legal principles applicable to informed consent in the State of Kentucky. “The information imparted by a physician must be stated so as to provide ‘a reasonable individual’ with a ‘general understanding of the procedure, any acceptable alternatives, the substantial risks and hazards inherent in the proposed treatment or procedures which are recognized among other healthcare providers who perform similar treatments or procedures.’”

Spaulding v. Spring View Hospital, LLC, 2016 WL 929507 (Ky. App. 2016)
The Court of Appeals of Kentucky recognized a negligent credentialing claim against a hospital. “In the present context, corporate negligence ‘is a doctrine under which the hospital is liable if it fails to uphold the proper standard of care owed the patient, which is to ensure the patient’s safety and well-being while at the hospital.’” “Rather, the tort we are asked to recognize, and the cause of action from which Spring View and LCRH beg protection, would impose liability upon a hospital for its own decision to credential a physician the hospital knew or reasonably should have known was incompetent. Thus, hospitals would be liable for, and would insure themselves against, only their own negligence. This is not a novel or irrational concept, nor is it necessarily bad public policy. In fact, it is a standard to which our laws and courts hold other individuals, other professionals, and other corporation.” “We recognize negligent credentialing as a cause of action and as a means by which individuals can hold hospitals liable for the latter’s negligent extension or renewal of staff privileges and credentials to independent contractor physicians.” “The standard of care in a negligent credentialing claim is one of reasonable care under the same or similar circumstances.” “The hospital’s duty arises from the foreseeability of an unreasonable risk of danger to a patient stemming from the granting of staff privileges to doctors who create an unreasonable risk of danger to patients.”