Kentucky Medical Malpractice Summary

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Statutes of Limitations

Kentucky requires that any medical malpractice action for injury or death be brought within one year from the time the injury was or reasonably should have been discovered. Ky. Rev. Stat. Ann. § 413.140 (Michie 1992). Although the statute says no action may be brought any later than five years from the negligent act or omission, id., this has been held to be unconstitutional. McCollum v. Sisters of Charity of Nazareth Health Corp., 799 S.W.2d 15 (Ky. 1990). The statute of limitations does not begin to run against a minor or person of unsound mind until the disability is lifted. Ky. Rev. Stat. Ann. § 413.170 (Michie 1992).

Contributory or Comparative Negligence

Kentucky is a pure comparative negligence state, so a claimant’s negligence does not bar recovery. Any damage award must be reduced by the claimant’s percentage of fault. Ky. Rev. Stat. Ann. § 411.182 (Michie 1992).

Joint and Several Liability

In Kentucky, joint tortfeasors are only severally liable, that is, liable only for that portion of the judgment equal to their percentage of negligence. Stratton v. Parker, 793 S.W.2d 817 (Ky. 1990).

Contribution

Joint tortfeasors, other than those guilty of acts of moral turpitude, have a right to contribution in Kentucky. Ky. Rev. Stat. Ann. § 412.030 (Michie 1992). Procedures under § 411.182 largely obviate the need for contribution, since each tortfeasor is severally liable only for a percentage of liability is based on his assessed fault. Percentages are assigned to settling parties but not to non-parties. Ky. Rev. Stat. Ann. § 411.182 (Michie 1992). A settlement will discharge a tortfeasor from any liability in contribution. Id.

Vicarious Liability

Kentucky has adopted the rule that an independent contracting physician can be the apparent agent of a hospital. Paintsville Hosp. Co. v. Rose, 683 S.W.2d 255 (Ky. 1985). If a patient justifiably relies on his belief that a physician is employed by the hospital, the hospital may be vicariously liable for the physician’s negligence. Id. Written notice to patients that the physicians are independent contractors has been found sufficient to avoid vicarious liability. Roberts v. Galen of Virginia, Inc., 111 F.3d 405 (6th Cir. 1997); Floyd v. Humana of Virginia, 787 S.W.2d 267 (Ky. Ct. App.1989).

Expert Testimony

Expert testimony is required to establish that a health care provider failed to conform to the applicable standard of care. Deutsch v. Shein, 597 S.W.2d 141 (Ky. 1980). Expert testimony is not required, however, when common knowledge or experience is sufficient to recognize or infer negligence from the facts. Stokes v. Haynes, 428 S.W.2d 227 (Ky. 1968). Kentucky does not require the plaintiff in a medical malpractice action to attach an expert’s affidavit to the complaint.

Damage Caps

Kentucky does not impose a statutory cap on damages recoverable in medical malpractice actions.

Statutory Cap on Attorneys’ Fees

Kentucky does not limit the amount an attorney can charge a client. A court need not review or approve contingent fee arrangements made between the attorney and client.

Periodic Payments

Kentucky does not require the periodic payment of medical malpractice judgments.

Collateral Source Rule

The statute allowing damages to be reduced by the value of collateral benefits, Ky. Rev. Stat. Ann. § 411.188(3) (Michie 1992), has been held to be unconstitutional. O’Bryan v. Hedgespeth, 892 S.W.2d 571 (Ky. 1995).

Pre-Judgment Interest

Kentucky does not have a statute allowing pre-judgment interest in tort cases.

Patient Compensation Funds and Physician Insurance

Kentucky does not have a patient compensation fund or a program of state-sponsored liability insurance for physicians.

Immunities

The Commonwealth of Kentucky has waived sovereign immunity only to the limited degree specifically set forth in its statutes. Ky. Rev. Stat. Ann. § 44.072 (Michie 1997). A Board of Claims has been established to investigate and compensate victims of torts for which the state, its departments, agencies, or employees are responsible. Ky. Rev. Stat. Ann. § 44.070 (Michie 1997). The board of claims has exclusive jurisdiction over claims against the state government. Id. The state’s liability is limited to $100,000 per claim and $250,000 per occurrence. Id. Damages awarded against the state are to be reduced by collateral sources, such as workers’ compensation insurance, social security programs, unemployment insurance programs, or state supplement income programs. Id. Medical malpractice lawsuits against the University of Kentucky are barred. The Board of Claims procedure is the exclusive method of asserting such claims. Withers v. University of Kentucky, 939 S.W.2d 340 (Ky. 1997). The University’s purchase of insurance is not a waiver of its sovereign immunity. Id.

The liability in tort of local governments, including cities, counties, and special districts within the state, is limited to the total damages suffered by the plaintiff, reduced by the percentage of the claimant’s contributory fault. Ky. Rev. Stat. Ann. § 65.2002 (Michie 1995). Local government employees are subject to suit, and the government is afforded the option of paying any judgment entered against its employees. Ky. Rev. Stat. Ann. § 65.2005 (Michie 1995). Local governments may pay damages in periodic payments. Ky. Rev. Stat. Ann. § 65.2004 (Michie 1995). The length of time over which payments may be made, however, cannot exceed ten years and must include interest. Id.

Arbitration

Kentucky does not require the arbitration of medical malpractice claims.

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Revision Date: February 6, 1998