Issue  2002/21 -  Dec. 31, 2002   
 

 

Is "Tort Reform' Coming to Kentucky?

    A bill was introduced in the Kentucky Senate to limit damage awards, compel arbitration, and change the statute of limitations in medical malpractice cases. 
    For a complete text of the bill, click here.
    To add your two-cents worth, 

  • OnLine Poll
    To register your vote for or against these changes, participate in our on-line poll by clicking here.  Vote once! Also forward this to other Kentucky lawyers for their input.  Results are not scientific but may be interesting.

  • Chat About it.
    To register your comments (anonymously please), either click here or click on 'talk about it' when you make your vote.

  • Thanks to Attorney Tim Lange for letting me know about this.
 Kentucky Supreme Court - DEC. 29, 2002
 Kentucky Court of Appeals - Published Decisions 
 KENTUCKY NONPUBLISHED OPINIONS -  3 Ky.NPO. 24 (Nov. 29, 2002)

  • Non-Compete Clauses Will Be Enforced When . . . . p. 5

    • This case involved an employment agreement involving a covenant not to compete with an insurance business for one year in the county where the business was located (plus contiguous counties) plus limitations on trade secrets, confidential information, unique business method, customer lists, and good will - all of which are legitimate business interests.

    • The essential terms to an enforceable non-compete covenant (citing Crowell v. Woodruff, Ky., 245 S.W.2d 44, (1951) are

      • Purpose is to prevent unfair competition

      • Restraint is no greater than reasonably necessary

    • Reasonableness depends on nature of business or profession and scope of restrictions as to character, duration, and territory.

      • Is it ancillary to sale of business or contract of employment?

  • No entitlement to pain and suffering award if threshold vedict, p. 6
    Plaintiff was awarded zero medicals but $5,000 in pain and suffering.  Since no fault act provided a $1,000 threshold which was not met in the actual verdict, the pain and suffering verdict was vacated on appeal.  Citing Schrader v. Atkins, Ky., 657 S.W.2d 945 (1983).

    • Commentary:

      • This is an interesting twist and is a reverse of the medicals being awarded but no pain and suffering (Miller v. Swift scenario).

      • The no-fault thresholds can be found in KRS 204.39-0680.  These include 

        • Death

        • Permanent injury within reasonable degree of medical probability

        • Fracture of weight-bearing bone

        • Compound, comminuted, displace or compressed fracture

        • Permanent disfigurement

        • Loss of body member

        • Permanent loss of bodily function

        • $1000 in medical expenses (treatment or evaluation)

      • It does not take much to meet the $1000 threshold now (which was set back in 1978 when the Motor Vehicle Reparations Act was passed) -  one ambulance run, one ER visit, and one CAT scan and voila $1000.  However, this case reminds us that the entitlement to have your medicals paid by PIP does not automatically mean that a jury will consider them to have been 'necessary' or 'reasonable' from this accident per KRS 304.30-020(5)(a) which defines 'medical expense."'  See, Bolin v. Grider, Ky., 580 S.W.2d 490 (1988).  'Threshold' instructions whereby the jury is asked the interrogatory whether or not the plaintiff has met threshold are proper per Drury v. Spalding, Ky., 812 S.W.2d 713 (1991) and are usually presented when the defense thinks the evidence supports that possibility.  In this case, however, the jury rejected the plaintiff's claim that the medicals were caused by the accident but oddly enough awarded pain and suffering.  This entitles the defendant to correct the matter post-verdict in the judgment and award the plaintiff nothing. 

      • Of course, the down side to this is that the $1000 medicals is only one of the several  thresholds.  If your medical proof includes the treating physician or chiropractor testifying they have a permanent injury or loss of bodily function based on a reasonable degree of medical probability, then it can get murkier since the jury is not bound to accept as absolute the plaintiff's testimony or their doctor's testimony (Shortridge v. Rice, Ky. App., 929 S.W.2d 194, 196 (1996).  

  • To order your complete copies of non-published court of appeal's opinions sent directly to your mail box, call 502-326-9794.  Cost is $130.00 + 6% tax per annum.  As I have said,  this is like a CLE in your mail box;  not to mention catch the trends and the mistakes early.  By the time they hit the Supremes, they are old news.

  • Return to Top

 

 Kentucky TRIAL COURT REVIEW - 6 KTCR 11, Nov 2002 
  • Rear end accident with disc injury nets plaintiff $10,000 in pain and suffering, p. 6
    This case as tried to the jury did not appear that unusual, eg. soft-tissue/disc injury vs. degenerative disc disease with a  million dollar in impaired earning capacity per a vocational economist thrown in for measure.  Plaintiff presented over $13,000 in medicals plus $73,000 in lost wages, plus the vocational economist (Ralph Crystal, Lexington) who quantified future impairment at $879,450.  The battle lines were drawn over the IME and the treating doctors, and the pretrial scenario was interesting.
    • Pretrial Discovery Maneuvers
      • Defendant's IME was Dr. Russell Travis, Neurology, Lexington.  He opined the back condition was cervical spondylosis (go to eMedicine for more info - "a common degenerative condition of the cervical spine that most likely is caused by age-related changes in the intervertebral disks").  
      • Pretrial discovery included the Plaintiff's lawyer attack on the IME Doctor by subpoena for
        • His prior IMEs, and
        • Financial records relating to those IMEs.
      • The defense attorney responded in kind and went after the treating doctors income records
      • The IME doctor hired lawyers to quash the subpoena.  Judge Paisley quashed the subpoena of the Plaintiff for the IME doctor's  records as well as the defendant's subpoena for treating doctor's finances - voila Mexican standoff (whatever that is).
    • Verdict?  
      • Plaintiff presented a  million dollar case but the jury didn't think so and awarded Plaintiff her medicals, plus $18,000 in lost wages, $30,442 in impairment (appx. 5% of what the economist opined), and $10,000 in pain and suffering.  
      • Seems like this ended up in the red zone - more than a soft tissue injury, but less than a damaged disc / surgery case. 
    •  Some published decisions for your information:
      • Tuttle v. Perry, Ky., 82 S.W.3d 920 (2002) held that plaintiff could cross-examine defendants' expert as to amount of fee received for testifying.  Now this reversed prior law in Kentucky.  But what is good for the goose is good for the gander.  IME doctor's fees for reviewing and testifying may sound high, but keekp in mind the treating orthopedists and neurosurgeons oft-times charge more.  Plus as a practical matter, most jurors know that people are getting paid for their time so the 'hired gun' approach could result in you shooting yourself in the foot.
      • There is a recent decision in the Court of Appeals regarding obtaining doctor's financial records, but it is not final, was depublished, and is now before the Supremes (eg. Primm v. Isaac - docket number 2002-SC-000344).
         
  • These extracts were printed with permission of the Kentucky Trial Court Review.   If you are interested in the summaries of all civil jury trials sent to you each month, then  call (502) 326--9794 or 1-(877)313-1944.  $150.00 per year (includes tax, shipping, and handling). 

    For the complete "KTCR 2002 Year in Review" - not only do you get in a single copy all of the trial verdict summaries, but indexed by lawyer, region, county, and more, plus additional analysis of largest verdicts, most prolific lawyers, medical examiners, seat-belts, types of injuries, punitive damages, etc. 
     
    Order your 2002 Year in Review of the Kentucky Trial Court Review Now and SAVE  
    Order by Dec. 31 and save $15.  Shipping starts in Early January 2003.  Call 1-877-313-1944.  Price now is $170.00 ($185.00 next year).
       

  • Return to Top
 TORT REFORM IN KENTUCKY?

On Dec. 6, 2002 (last Friday), the following bill was filed in the Kentucky Senate by Senate President David Williams.  It addresses 'tort reform' type issues in Kentucky.  This bill has also been the subject of a recent KATA Legislative Alert.  Note this putative reform is limited to med-mal cases and does not apply to others as was done in Mississippi.  I'm not sure what the uniform statute of limitations is unless it is more of a statute of repose or a date certain for the accrual of the cause of action (rather than the discovery of malpractice rule).

If you want to see some other sites addressing tort reforms, check out the following:

BR 448 - Senator David L. Williams (12/06/02) (bill introduced per LRC site)

     AN ACT proposing amendments to the Constitution of Kentucky relating to health care matters.
     Propose amending the Constitution of Kentucky to add a new section permitting the General Assembly to limit noneconomic damages, limit punitive damages, provide statute of limitations on actions, and require alternative dispute resolution in cases involving health care providers licensed or certified by the Commonwealth; amend Section 14 relating to access to the courts, 54 relating to prohibiting limits on damages, and 241 relating to the right to sue in death and injury cases, to conform; provide for submission to the voters in the normal manner.

The actual text of BR 448 is as follows:

AN ACT proposing amendments to the Constitution of Kentucky relating to health care matters.

Be it enacted by the General Assembly of the Commonwealth of Kentucky:

SECTION 1 .   IT IS PROPOSED THAT A NEW SECTION BE ADDED TO THE CONSTITUTION OF KENTUCKY TO BE NUMBERED 54A AND TO READ AS FOLLOWS:

(1)     As used in this section, "health care provider" means any person or organization licensed or certified by the Commonwealth of Kentucky to provide health care services and who has been designated as a health care provider by act of the General Assembly for the purposes of effectuating this section of the Constitution.

(2)     Any section of this Constitution to the contrary notwithstanding, the General Assembly may, in any civil action where the act or omission of a health care provider has been alleged to have resulted in death or injury to any natural person, by general law:

(a)      Limit the amount to be recovered for noneconomic loss;

(b)      Limit the amount to be recovered for punitive damages;

(c)      Provide for a mandatory alternative dispute resolution system; and

(d)      Provide for a uniform statute of limitations for any civil action subject to this section.

(3)     No provision of this section of the Constitution shall apply to a criminal action against a health care provider, and the provisions of Sections 59 and 60 of the Constitution shall specifically apply to any criminal action against a health care provider.

Section 2 .   It is proposed that Section 14 of the Constitution of Kentucky be amended to read as follows:

            Except as provided in Section 54A, all courts shall be open, and every person for an injury done him in his lands, goods, person or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.

Section 3 .   It is proposed that Section 54 of the Constitution of Kentucky be amended to read as follows:

            Except as provided in Section 54A, the General Assembly shall have no power to limit the amount to be recovered for injuries resulting in death, or for injuries to person or property.

Section 4 .   It is proposed that Section 241 of the Constitution of Kentucky be amended to read as follows:

            Except as provided in Section 54A, whenever the death of a person shall result from an injury inflicted by negligence or wrongful act, then, in every such case, damages may be recovered for such death, from the corporations and persons so causing the same. Until otherwise provided by law, the action to recover such damages shall in all cases be prosecuted by the personal representative of the deceased person. The General Assembly may provide how the recovery shall go and to whom belong; and until such provision is made, the same shall form part of the personal estate of the deceased person.

Section 5 .   This amendment shall be submitted to the voters of the Commonwealth for their ratification or rejection at the time and in the manner provided for under Sections 256 and 257 of the Constitution and under KRS 118.415.

 LIST MAINTENANCE