Kentucky Injury Law Blog

Residents of nursing homes and other long-term care facilities are some of our most vulnerable friends and family members. Even if they are suffering abuse or neglect, they may be physically unable to say anything, or they may be afraid of retaliation if they report this type of treatment. Even family members that visit their relatives frequently may miss the signs of nursing home abuse and neglect.

In an effort to protect this segment of society, the Kentucky House of Representatives has introduced and passed HB 250. This bill, if it becomes law, would require a more thorough background check on potential and current nursing home employees. Currently, name-based background checks are run only on prospective employees that would have direct contact with the residents. Under the new bill, fingerprint checks would be done on applicants to determine if they have been convicted of a serious felony and a database search would show any record of previous abuse. Even after being hired, employees would continue to be checked to make sure they had not been convicted of a serious felony after being hired.

The bill includes $4 million worth of state or federal funding that would cover the cost of the equipment and training and the background checks until 2014. After that, the long-term care facilities would be required to either cover the cost or pass the cost on to the applicant or employee. The background checks would be done at a Cabinet for Health and Family services field office, of which there are about 36 throughout Kentucky.

Some representatives objected, stating the cost would be significantly more than the checks being done now, and that the currt checks are sufficient. Others noted that the federal funding is part of the Affordable Care Act, which may be overturned by the Supreme Court, so the funding would disappear.

The bill has passed in the House of Representatives and is headed to the Senate.

Continue reading "Kentucky House Passes Bill to Require Fingerprint Background Checks on Nursing Home Employees" »

Senator Arlen Spector has introduced two pieces of legislation which evidence his understanding of potentially unreasonable tax consequences involved in personal injury litigation.

The first would prevent lawyers from paying tax on the money they receive as reimbursement of expenses, the second alleviates a plaintiff’s potential tax liability for income he never receives.

Read more about these pieces of legislation here.

(credit John Day of www.dayontorts.com for posting this on his blog)

We have visited doctors and hospitals throughout the country and heard firsthand from those who face ever-escalating insurance costs. Indeed, in some specialties, high premiums are forcing physicians to give up performing certain high-risk procedures, leaving patients without access to a full range of medical services. But we have also talked with families who have experienced errors in their care, and it has become clear to us that if we are to find a fair and equitable solution to this complex problem, all parties — physicians, hospitals, insurers, and patients — must work together. Instead of focusing on the few areas of intense disagreement, such as the possibility of mandating caps on the financial damages awarded to patients, we believe that the discussion should center on a more fundamental issue: the need to improve patient safety.

We all know the statistic from the landmark 1999 Institute of Medicine (IOM) report that as many as 98,000 deaths in the United States each year result from medical errors. But the IOM also found that more than 90 percent of these deaths are the result of failed systems and procedures, not the negligence of physicians. Given this finding, we need to shift our response from placing blame on individual providers or health care organizations to developing systems for improving the quality of our patient-safety practices.

To improve both patient safety and the medical liability climate, the tort system must achieve four goals: reduce the rates of preventable patient injuries, promote open communication between physicians and patients, ensure patients access to fair compensation for legitimate medical injuries, and reduce liability insurance premiums for health care providers. Addressing just one of these issues is not sufficient. Capping malpractice payments may ameliorate rising premium rates, but it would do nothing to prevent unsafe practices or ensure the provision of fair compensation to patients.

SUPPLEMENT: Interview with Richard Boothman on a medical-error disclosure program in Michigan.

READ THE ENTIRE ARTICLE: NEJM -- Making Patient Safety the Centerpiece of Medical Liability Reform.

Reid: Bush Republicans Keep Insurance Companies Healthy
WASHINGTON, May 8 /U.S. Newswire/ -— With Bush Republicans in the Senate seeking to use their "health" week to push Medical Malpractice legislation that will do nothing to fix the health care crisis in America today, Senate Democratic Leader Harry Reid delivered the following remarks on the Floor of the U.S. Senate.

The text of Senator Reid's speech, as prepared, is below.

Mr. President, I rise to object to the Republican medical malpractice bills before the Senate today. These measures do not represent a serious attempt to improve health care or civil justice in the United States. Moving to these bills is a tired political exercise, and the Senate should reject it out of hand.

To think with American consumers paying over 3 dollars for gas, with college tuition moving beyond the reach of many in the middle-class, with the Iraq war dead approaching 2,500, with immigration a security crisis unresolved, with our country's deficit standing at 9 trillion dollars, with 46 million Americans lacking health care coverage, we are moving to bills that are unnecessary and go nowhere. It is wrong.

We could more profitably use the scarce time remaining in the 109th Congress tackling the urgent challenges facing America's families: energy, the war, immigration, and the real health care crisis.

Each year, over a hundred thousand people are killed by preventable medical errors, due to negligence or wrongdoing. Many more are seriously or permanently injured, disfigured or disabled.

Congress has done little to address this serious problem. Instead, the Congressional leadership is working to pass legislation that would limit the right of those injured through no fault of their own to hold wrongdoers accountable and eliminate a key incentive for health care providers to act responsibly in the future.

For those who are injured or family members of those who have died as a result of medical negligence, the civil justice system is the last resort and the court room is the only place where they can seek justice against powerful interests on a level playing field.

Next week, as part of a so-called “Health Week,” the US Senate will vote on medical malpractice legislation which would dramatically restrict your ability to hold wrongdoers accountable.

Please help fight this attack on our rights.

Learn the facts about the bill.

Read about victims of medical malpractice.

Contact Congress and tell your Senators to protect the health and safety of Americans, not corporate profits.

At a time when so many people have been harmed due to preventable mistakes, Congress should be talking about protecting the health and safety of patients, rather than protecting the profits of negligent wrongdoers.

New York — Americans for Insurance Reform (AIR) released a new study today confirming the wholesale decline of medical malpractice insurance rates nationwide. The AIR study also shows that this phenomenon is occurring whether or not states enacted restrictions on patients’ legal rights, such as “caps” on compensation. The medical malpractice insurance “crisis” is over, according to the study.

AIR’s study is based on the most recent Council of Insurance Agents and Brokers survey of market conditions, showing that the average rate hike for doctors over the past six months has been 0 percent. This is following similar results for the last quarter of 2004, which saw rates rising only 3 percent at the end of that year. By comparison, rates jumped 63 percent during the same quarter of 2002.

According to Joanne Doroshow, AIR spokesperson and Executive Director of the Center for Justice & Democracy, “Consumer rights organizations have long maintained that the ‘crisis’ of skyrocketing insurance rates for doctors and other policyholders would end when the insurance investment cycle stabilized, and that this would occur whether or not so-called tort ‘reform’ laws were enacted. Insurance industry data now unmistakably confirms this prediction.”

“We are now witnessing the wholesale collapse of insurance rates, including medical malpractice rates,” said J. Robert Hunter, AIR spokesperson, Director of Insurance for the Consumer Federation of America, former Federal Insurance Administrator and Texas Insurance Commissioner. “The end of the ‘hard market’ of sharp rate increases, less competition and cutbacks in coverage has occurred and a ‘soft market’ is now fully in place.”

A “hard” insurance market is characterized by higher rates, less competition and limited coverage. This is the result of the cyclical nature of the insurance business. Prior to the “hard market” of the last few years, the last such “hard market” occurred in the mid-1980s. But like today, the insurance cycle turned after a few years and prices began to fall. This had nothing to do with tort law restrictions enacted in particular states, but rather to modulations in the insurance cycle everywhere.

“The hard phase of the insurance cycle clobbers American businesses and professions every ten to fifteen years,” said Hunter. “Although these hard markets last only about two to three years, they can no longer be tolerated. State regulators must enforce the rating laws in order to end the boom and bust swing from illegal overpricing, such as the rates some policyholders have been asked to pay today, to illegal and inadequate underpricing, which will be seen when the market softens too much later in the cycle. Fortunately, the hard market price jump is behind us and we are now entering the softer market so legislators have a decade or so to grapple with how best to do this before the next hard market hits the nation. And there is now clearly no need to rush into quick legislative fixes, such as legal limits on patients’ rights.”

To read the entire article, click here.

HB 565 is on the House of Representatives Floor for a vote as early as Monday, February 27, 2006. The bill would amend KRS 304.39-210, pertaining to no fault motor vehicle insurance to prohibit the charging of fees for medical expenses in excess of the limitations of the Kentucky workers’ compensation fee schedule as set forth in KRS 342.035 and in administrative regulations adopted pursuant thereto.

Please call your legislator to voice your opposition to HB 565 IMMEDIATELY.

The general number for your legislators is (502) 564-8100 (you will be transferred to your legislator or his/her secretary immediately). You may call the message line at 1-800-372-7181. You may also call him or her at home this weekend.

Kentucky Injury Lawyers will find this proposal interesting. The legislation extends the statute of limitations against 3rd Party Defendants.

SB 210 (BR 2249) - T. Jensen, R. Stivers II
AN ACT relating to civil actions.
Create a new section of KRS Chapter 411 to allow a plaintiff in a civil action where comparative fault becomes an issue, where suit was initiated against the original defendant within the statute of limitations, where the original defendant alleges that a third party caused or contributed to the plaintiff's injury, and where the plaintiff would be barred by a statute of limitations from bringing a claim against that third party to either amend the complaint pursuant to Rule 15 of the Kentucky Rules of Civil Procedure or institute a separate action within ninety days of the filing of the first answer or amended answer alleging such third party's fault; establish that the new cause of action is not barred by any statute of limitations.