Doctors seek legal limits on malpractice awards
Bill intended to help rein in cost of insurance premiums

By WILLIAM ALLEN  Reprinted from The Courier-Journal

FRANKFORT, Ky. — Snow, sleet and rain could not keep several hundred Kentucky doctors from their appointed rounds yesterday — in the halls of the General Assembly.

At the urging of Gov. Ernie Fletcher, other Republican leaders and the president of the American Medical Association, the physicians lobbied legislators to pass a Republican-backed bill aimed at bringing relief to doctors who face rising malpractice-insurance premiums.

But before the doctors left for the Capitol, they heard speeches at the Frankfort civic center. In one of them, Senate President David Williams appeared to make an offer to House Democrats that would resolve a conflict between the Republican-backed bill and a Democrat-sponsored measure introduced two days ago.

Williams said he would "guarantee" passage of the Democrat's measure if the Democrats passed his.

Williams is the sponsor of Senate Bill 1, approved by the Senate on Jan. 15. It would place on the November ballot a constitutional amendment allowing legislators to cap awards next year for punitive damages and pain and suffering. Williams and others have suggested a $250,000 cap.

Damages for medical expenses and lost earnings would not be limited.

The measure is now in the House Elections and Constitutional Amendments Committee.

The alternative proposal, House Bill 450, which House Democratic leaders said would bring relief this year, in is the House State Government Committee.

Referring to Democratic leaders in the House, Williams told the visiting doctors, "If they will pass the constitutional amendment, I will guarantee them that we (the Senate) will pass HB450 and give them the opportunity to see if they can put in place these reforms."

But Williams also criticized the House bill as unworkable.

And Democrats didn't appear interested in Williams' offer.

Rocky Adkins, the House majority floor leader who spoke to the doctors on behalf of the House bill, later said through a spokeswoman that "there's no reason to subject Kentuckians to the expense, uncertainty and risk of a constitutional amendment when we have a solution in the form of House Bill 450."

He took Williams' offer "as an expression of agreement that HB450 would provide immediate relief to problems the health care community is experiencing in the form of rising medical malpractice insurance rates," said the spokeswoman, Amy Carman.

During his comments to the doctors, Adkins asked them to "keep an open mind" about the House bill, which he said was "a sensible one, and we think a better alternative" that would help doctors immediately.

"I do not believe Senate Bill 1 will do anything to reduce the volume of litigation," Adkins said. "House Bill 450 will pass constitutional muster and it will bring immediate relief. Let's take care of this problem now."

Fletcher, who is a physician, told the doctors that House Democrats say their bill "will give some immediate relief. If we can get some immediate relief, we're all for it.

"But the fact of the matter is that more comprehensive reform is necessary for us to get a comprehensive approach to more relief and a long-term solution to this problem." he added.

At issue is the rising cost of premiums that doctors and hospitals pay for medical malpractice insurance. The American Medical Association, Kentucky Medical Association, Kentucky Hospital Association and others say that frivolous lawsuits, and unreasonably large settlements and jury awards in malpractice cases, are causing insurance companies to raise premiums.

Those costs are forcing hospitals to shut down high-risk services, and forcing many doctors to leave Kentucky or retire early, making it harder for patients to get health care, they say.

Opponents of damage limits, who include the Kentucky Trial Lawyers Association and victims of medical errors, said that would strip citizens of legal rights and could end up hurting patients victimized by medical wrongdoing.

The House Democrats' bill, introduced earlier this week, would create an independent, nonprofit agency that would sell malpractice insurance to Kentucky doctors and other health-care providers. It would also establish an expert panel to review medical malpractice lawsuits and require private companies selling medical malpractice insurance to file rates with the state Department of Insurance.

Its chief sponsor is Rep. Rob Wilkey, D-Franklin.

The Republican-sponsored measure would require approval by three-fifths majorities in the Senate and House before it could be placed on the ballot. HB450 would require a simple majority because it does not affect the constitution.

Both parties say they want to screen out "frivolous" lawsuits and that their bills are "reasonable" ways of doing it.

Fletcher, who was introduced as "Dr. Fletcher," received a standing ovation. He said the Senate bill would make health care "more available and more affordable."

He said he had spoken with doctors around Kentucky who have told him that if they moved to another state, their rates from the same insurance company for the same procedures would be "up to 50 percent" less.

"Don't tell me that (a cap on) medical liability doesn't work," Fletcher said. "It does work, and we need it in Kentucky and we need it now."

The Senate bill calling for a constitutional amendment should be passed so Kentucky voters can decide what to do about the issue, Fletcher said.

"It is beyond me why at this point, at least it appears, the House leadership doesn't want to give the people of Kentucky the opportunity to decide whether they want some reasonable limits that will reduce their cost of health care and improve their access," he said.

Dr. Donald Palmisano, president of the American Medical Association, told the doctors, "What we need to do is bring common sense to the medical liability system."

Palmisano said a majority of Americans want a change in how medical liability issues are resolved.

"This is not a Republican issue and not a Democrat issue," he said. "It's a people issue, a patient issue."

He listed several cases where patients across the country suffered because they no longer had access to medical care after their physician left or retired rather than pay rising insurance premiums. He said opponents of the SB1 who argue that caps don't work were using "junk math."

"America wants this fixed," Palmisano said.

Among the doctors who visited House members were Dr. Susan Spires, a pathologist, and Dr. Lori Atkins, a radiologist. Both are in private practice in Lexington, and both expressed concern about the rising insurance premiums they and other specialists they know face. Both said they support SB1.

"Physicians are here for their patients," Spires said. "Our main message to our patients is: Help us help you by helping us stay in Kentucky."

At a morning rally of patient-safety advocates on the rainy, windswept steps outside the Capitol annex, about 100 people held signs reading "Trust the juries" and "Protect patients rights."

Sen. Daniel Mongiardo, a Hazard Democrat who is a physician and supporter of the House bill, told the crowd that the solution to the medical malpractice problem is "not about caps. It's about patient safety. We want availability and affordability, and to keep up the quality of health care."

Among those who said they opposed SB1 was Barbara Mortberg of Louisville. Mortberg held a photo of her daughter, Bethany, 4, in a wheelchair.

Bethany has cerebral palsy, the result of a nurse's failure to monitor her heart rate during delivery, said Mortberg, whose family reached a confidential out-of-court settlement with a hospital.

The settlement covers the high cost of caring for Bethany.

"I'm hoping we can find some other way of dealing with this so other people can be protected like we were," she said.

Disclaimer:    We are not attempting to practice law, give advice or represent ourselves as anything more than a resource portal with many unique features. Our design is copyrighted. We have no claim of any affiliation with any linked website nor any liability for anything they may say or do. We, and our contributing authors, offer no warranties of any type, to anyone, about anything express or implied.  What you see is what you get, we cannot afford to be your insurer.   

By going further into this site, you accept this complete waiver of all warranties.

© All material copyrighted, LawReader, Inc. 314 7th. St., Carrollton, Ky. 41008