Kentucky Injury Law Blog

Kentucky dog bite victims were dealt a blow recently in an opinion written by Judge Tom Wine of the Court of Appeals. In the opinion, Wine extended the logic of Johnson v. Brown, 450 S.W.2d 495, 496 (Ky. 1970) and Dykes v. Alexander, Ky., 411 S.W.2d 47
(1967), which held that "one who keeps a dog enclosed or fettered on his own premises will not be liable to an interloper whose presence and exposure to the dog he has no reason to anticipate." In Carmical, the Court extended the logic to include deliverymen, further abrogating KRS 258.275(1).

Read the opinion here: Carmical v. Bullock

In other dog bite news, my partner Vanessa Cantley recently appeared at a Metro Louisville subcommittee hearing on the new dog ordinance. She has proposed a change to the dog ordinance which would require landlords/homeowners in Metro Louisville to provide insurance to cover tenants’ dogs in case of attack or require their tenants to maintain renter’s insurance which would do so. Kudos to Vanessa for taking a stand for dog bite victims.

Today, the Tennessee Supreme Court ruled that ex parte communications between defense counsel and a plaintiff's non-party physician are not allowed.

Click here to read the entire opinion.

The Court ruled that these sort of communications violate the implied covenant of confidentiality between physicians and patients. This only makes sense because this is some of the most sensitive information about a person. Moreover, the information can be obtained through formal discovery.

Thanks to The Duncan Law Firm for bringing this to our attention.

N.Y. Judge Denies Disclosure of Surgeon's Records

Daniel Wise
New York Law Journal
June 21, 2006

A medical malpractice plaintiff, who claims her doctor was suffering from a physical condition that caused him to botch her face-lift, may not compel the doctor to disclose his medical records, a New York judge has ruled.

The defendant doctor's medical records remain privileged, unless he has taken some affirmative step to put his medical condition in issue, Manhattan Supreme Court Justice Eileen Bransten ruled in Brower v. Beraka, 109514/03.

Although Bransten refused to require Dr. George J. Beraka, a plastic surgeon, to disclose his medical records, she did order him to submit to a deposition where he could be asked questions about the facts and circumstances of his condition during the 40 days following the plaintiff's surgery.

Law.com - N.Y. Judge Denies Disclosure of Surgeon's Records.

Kentucky accident attorneys take note: Ahlborn may extend to Medicare

In a significant victory for injured plaintiffs, the Supreme Court ruled unanimously on May 1st that state Medicaid agencies’ claims for reimbursement out of tort settlements are limited to that portion of any settlement attributable to past medical expenses. The ruling means that the agencies may not lay claim to any portion of a plaintiff’s recovery for lost wages, pain and suffering, permanent disability or other future damages. Arkansas Dept. of Health and Human Services v. Ahlborn, 126 S.Ct. 1752 (2006).

Medicaid is not the only federal health care program that has asserted a right to priority repayment out of tort settlements; ATLA members report similar claims by Medicare.

We believe that Ahlborn’s logic should control repayment claims by other federal programs, such as those asserted under the Medical Care Recovery Act (“MCRA”) and the Medicare Secondary Payer Act (“MSPA”), despite differences in the language of each statute, because the basic structure of the repayment obligation is the same under all three federal statutes and because all three acts share a common congressional purpose.

In our view, plaintiffs’ counsel should begin to treat the decision in Ahlborn as controlling in cases involving Medicare and other federally-funded health care programs and should be on the lookout for an appropriate case to seek to extend the holding in Ahlborn.

TO READ THE ENTIRE OPINION LETTER, CLICK HERE: Download Opinion Letter from CCL

Fantastic article on Sereboff and the future of ERISA remedies from the Workplace Prof Blog.

Sereboff and the Future of ERISA Remedies (click to read the entire article)

By Guest Blogger: Prof. Colleen Medill, University of Nebraska College of Law

This is the first of what I hope will be a regular addition to the Workplace Prof Blog - comments and observations on legal and regulatory developments in employee benefits law. Chief Justice Roberts spoke at the American Law Institute meeting about 30 minutes after the decision in Mid-Atlantic Medical Services v. Sereboff was announced. In his remarks to the ALI members, Chief Justice Roberts characterized Sereboff as one of four decisions announced that morning by the Court that were "9-0" decisions that "simplified" the law. The audience was, of course, duly impressed with the new Chief Justice. Justice Roberts (who wrote Sereboff) could "simplify" ERISA. Wow!

Having had a few days to reflect on the opinion in Sereboff, and its future implications for ERISA remedies, I think "subtle change," rather than "simple," is a more accurate adjective. Although only 11 pages long, with only two footnotes (a true breath of fresh air after Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204 (2002)), this decision marks a turning point in the Court's philosophical approach to determining the scope of "appropriate equitable relief" under ERISA Section 502(a)(3). This change looks to be at three levels, described below, starting from most narrow to the most far reaching:

Lloyd Knotts and Jackie Knotts v. Zurich Insurance Company, et al.

Reversing the Court of Appeals, Justice Roach wrote the majority opinion which holds that the insurer's obligation to comply with the Unfair Claims Settlement Practices Act, and duty to act in good faith, continues throughout litigation. However, the court did hold that conduct by the defense lawyer cannot be used to support allegations of bad faith and is strictly inadmissible.

Kudos to Lee Sitlinger and Larry Franklin for this very important opinion!

To read the entire opinion, click here: Lloyd Knotts and Jackie Knotts v. Zurich Insurance Company, et al.

Kentucky insurance bad faith decision.

In Janet Foster v. Kentucky Farm Bureau, the Kentucky Supreme Court reached two important decisions.

The Good: An individual who is unemployed at the time of an automobile accident may collect work loss benefits from a job that she is later offered but cannot fulfill because of a physician's advice, and such conduct is covered by the Kentucky MVRA statutes

The Bad: An insurers failure to pay no-fault benefits does not support a seperate claim for bad faith. The Kentucky Motor Vehicle Reparations Act is the exclusive remedy for no-fault claims, and the Unfair Claims Settlement Practices Act does not apply. There is no bad faith claim available for PIP claims, the attorney fee provision of the MVRA is the exclusive remedy.

ARKANSAS DEPARTMENT OF HEALTH AND HUMAN SERVICES ET AL. v. AHLBORN

“[t]here is no question that the State can require an assignment of the right, or chose in action, to receive payments for medical care. So much is expressly provided for by §§1396a(a)(25) and 1396k(a). And we assume, as do the parties, that the State can also demand as a condition of Medicaid eligibility that the recipient “assign” in advance any payments that may constitute reimbursement for medical costs. To the extent that the forced assignment is expressly authorized by the terms of §§1396a(a)(25) and 1396k(a), it is an exception to the anti-lien provision. See Washington State Dept. of Social and Health Servs. v. Guardianship Estate of Keffeler, 537 U. S. 371, 383–385, and n. 7 (2003). But that does not mean that the State can force an assignment of, or place a lien on, any other portion of Ahlborn’s property. As explained above, the exception carved out by §§1396a(a)(25) and 1396k(a) is limited to payments for medical care. Beyond that, the anti-lien provision applies.” (Emphasis added).

A recent ruling in the 1st circuit held Daubert objections raised at trial are not timely. Feliciano-Hill v. Principi, No. 04-1072 (1st Cir. Feb 22, 2006).

Dr. Feliciano-Hill argues that, pursuant to Daubert and Rule 702, the district court should have refused to admit Dr. Sierra-Zorita's testimony as evidence. The district court denied Dr. Feliciano-Hill's motion both because it was untimely -- Dr. Feliciano-Hill waited until the moments before Dr. Sierra-Zorita's testimony to object, even though she had received the doctor's report five months earlier -- and because Dr. Sierra-Zorita's report and proposed testimony met the applicable standard. The district court was correct on both grounds.

Parties have an obligation to object to an expert's testimony in a timely fashion, so that the expert's proposed testimony can be evaluated with care. Dr. Feliciano-Hill did not make a timely motion here and has not offered any reason for her delay. The district court was on firm ground in refusing her motion as untimely. See Alfred v. Caterpillar, Inc., 262 F.3d 1083, 1087 (10th Cir. 2003) (explaining that "because Daubert generally contemplates a 'gatekeeping' function, not a 'gotcha' junction," untimely Daubert motions should be considered "only in rare circumstances"); see also Club Car, Inc. v. Club Car (Quebec) Import, Inc. 362 F.3d 775, 780 (11th Cir. 2004) ("A Daubert objection not raised before trial may be rejected as untimely.").