Kentucky medical malpractice law is, when compared to many other states, refreshingly straightforward. A throwback to the days before medical malpractice reform, Kentucky treats medical malpractice in much the same way it treats any other type of personal injury case. Attempts at reforming Kentucky medical malpractice law have been unilaterally unsuccessful, with bills seeking to cap damages and establish medical review panels garnering little or no legislative support. If you are thinking of filing a medical malpractice lawsuit in Kentucky, read on to learn more.
Statute of Limitations in Kentucky Medical Malpractice Cases
A medical malpractice case -- for injury or death -- must be filed within one year of when the injury was discovered (or reasonably should have been discovered). While the statute of limitations states that no medical malpractice suit may be brought later than five years from the actual act or omission causing the injury, Kentucky courts have suggested that the 5-year limit is unconstitutional. As such, Kentucky effectively operates with a "discovery rule" system requiring medical malpractice cases to be filed within one year of when the injury should have been discovered.
Notice and Expert Requirements
Kentucky does not have any pre-suit notice requirements in medical malpractice cases. A medical malpractice case in Kentucky commences when you file your lawsuit in the appropriate court. There is no need to notify a potential defendant of your intent to sue, and there is no requirement for a pre-suit affidavit of merit signed by an expert witness.
With regard to expert witnesses, you will need expert testimony to prove your case, unless the facts themselves establish a prima facie case of negligence. A prima facie case in one in which the injury could not have occurred absent negligence. For example, a foreign object left inside your body that causes an infection would be a prima facie case of medical malpractice. You don’t need an expert to attest to the fact that 1) leaving a sponge in your body is negligent, and 2) but for the presence of the foreign body, you would not have been injured. This is a very plaintiff-friendly facet of Kentucky medical malpractice law, because it allows plaintiffs to avoid the cost of medical expert witnesses in prima facie cases.
Damage Caps and Fault
Kentucky does not have any cap on non-economic damages in medical malpractice cases. This can lead to very favorable verdicts for plaintiffs.
Doctors, physician groups and health care companies have cited the lack of damage caps in Kentucky medical malpractice law as a major “deficiency”, and some argue it has had a chilling effect on the growth of the health care industry in Kentucky. The potential for a devastating verdict is very real, and many health care corporations believe the risks of operating in Kentucky outweigh the potential financial benefits. Trial lawyers and plaintiff advocate groups, however, are very supportive of the straightforward nature of Kentucky law, and the state population, thus far, seems to agree that damage caps and other limitations are unnecessary. Legislation aimed at reforming Kentucky medical malpractice law has failed to gain traction.
Kentucky operates under a pure comparative fault system, meaning that a percentage of fault can be assigned to each party to the case, and any verdict is apportioned accordingly. Since Kentucky is a pure comparative negligence state, any fault attributed to the plaintiff simply reduces the plaintiff’s award by an amount equal to the plaintiff's share of the blame. It does not bar the plaintiff from recovery. For example, in a medical malpractice case where the patient is awarded $100,000 in total damages, but is also found to be 35 percent at fault (by ignoring the doctor's after-care instructions), the patient will receive $65,000 (which is the original $100,000 award reduced by 35 percent).