Issue  2003/1 -  Jan. 12, 2002   
   What's new in this issue?
   Just 4 published Court of Appeals cases, a request (again) to give your opinion on tort reform in Kentucky in med-mal cases, and last week's Courier-Journal law-related stories.
 

Is "Tort Reform' Coming to Kentucky?
Vote in on-line poll 
We need more participation - only 19 votes so far.
I 'd like more.  It is anonymous!
 Kentucky Supreme Court - JAN 12, 2002
 Kentucky Court of Appeals - Published Decisions - jan 12, 2002
  • Family Law - Pension benefits
    • O'Neal v. O'Neal, Ky.App., Dec. 27, 2002
      After divorce decree had already been entered, and former wife had been denied relief upon her motion to reopen decree, wife brought independent action against husband demanding her share of his pension. Former wife's  request denied again.  Divorce decree 15 years old. 
  • Workers Compensation - Double recovery, third party negligence, subrogation
    • Cantrell v. Liberty Mutual Insurance Co.,  Ky. App., Dec. 27, 2002
      This case dealt with injured employee who received workers compensation benefits and then sued third-party tortfeasor.  Workers compensation carrier intervened for indemnity and subrogation of its medical expenses and wages paid to the injured employee, but settled with the tort feasor prior to trial.  Jury awarded damages and apportioned fault 50-50.  Court of Appeals determined employee not entitled to past medicals paid by workers compensation carrier even if carrier had settled (nor is the carrier entitled to this from the verdict since it had settled).  Employee is awarded his future medicals subject to apportionment, and any claim the insurer for immediate reimbursement for future medicals is premature. See, Great American Insurance Co. v. Witt, Ky.App., 964 S.W.2d 428 (1998), since overruled by AIK Selective Self Ins. Fund v. Bush, Ky., 74 S.W.3d 251 (2002).   See also KRS 342.700(1); 342.020.
  • Civil Procedure - amending complaint, summary judgment, marshall assets, UCC
    • M.A. Walker v. PBK Bank, Ky., App., Dec. 27, 2002
      This case involved real estate financing, materialman's liens, letters of credit, etc.  Materialman's lienholder sued and joined bank which did the financing (before and after the lien recorded).  During the suit, the real estate developer and the bank settled with notes being assigned and confession of judgment being entered by the developer.  The lien holder was concerned about the amounts calculated as part of the settlement he was not a party to and possible diversion of property, and requested the commissioner to make findings.   Lien holder (Walker) then amended complaint to include fiscal court regarding surety on the roads ($100,000) claiming the materials he provided (rock) gave him an interest.  Trial court denied amendment and entered summary judgment.  Appellate court held Walker entitled to amend complaint and summary judgment busted. (PS, I'm not a business lawyer, but just wanted to highlight these issues for those who are to go and look it up).
  • Workers Compensation - statute of limitations and experts
    • Brown-Forman v. Upchurch, Ky.App., Dec. 27, 2002
      Held statute of limitations was told by employer's physician's misleading statements (failed to tell employee his wrist injury was work-related; in fact, said they wer NOT work-related), and claimant's medical expert opinion was admissible.
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 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.

 RECENT COURIER-JOURNAL LAW-RELATED STORIES THIS LAST WEEK -JAN 6 - 12, 2003

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An Irish Friendship Wish to Each of You This Coming Year

May there always be work for your hands to do; 
May your purse always hold a coin or two; 
May the sun always shine on your windowpane; 
May a rainbow be certain to follow each rain; 
May the hand of a friend always be near you; 
May God fill your heart with gladness to cheer you.