KY Tort Reform Efforts
I attach these 2 links above to recent articles published in the Courier-Journal concerning the potential for meaningful Kentucky tort reform. Now that its Republican Governor is joined by Republican majorities in both its state House and Senate, Kentucky lawmakers promise tort reform and medical malpractice reform efforts will take high priority in the upcoming legislative sessions. However, unlike other states with tort and malpractice limits, Kentucky’s Constitution provides impediments that will mandate a state constitutional amendment requiring a populous vote, prior to any enforceable damage caps or substantive reform measures. The articles address these as well as other options, such as malpractice review panels and confidentiality for hospital staff peer review – both currently unavailable in Kentucky – which may pose more viable options to lawmakers unless, or until, the tort reform efforts can gain enough momentum to appear on the 2018 general ballot. Given the overwhelming majority, reform seems more possible than ever before.
Kentucky courts recognize the interplay and application of two state constitutional provisions to substantive common law as “the jural rights doctrine.” See Williams v. Wilson, 972 S.W.2d 260 (Ky. 1998) (attached). These provisions of Kentucky’s Constitution protect personal injury and wrongful death recovery from legislative-enacted limits or abolishment. Section 14 provides, “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 54 proclaims, “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.” Kentucky courts steadfastly affirm the jural rights doctrine’s purpose, “to save from legislative abolishment those jural rights which had become well established prior to the enactment of our Constitution.” Williams, citing Ludwig v. Johnson, 243 Ky. 533, 49 S.W.2d 347, 350 (1932) (quoting Stewart v. Houk, 271 P. 998, 999 (Or. 1928)). Stated otherwise, any legislative attempt at tort reform, including enactment of damage caps or limits on actions, will not survive Kentucky Supreme Court review.
Interestingly, the Courts hold the jural rights doctrine is not offended by limits placed on recovery sought under workers compensation statutes or other legislatively-enacted rights of recovery not available at common law. See, e.g., Shamrock Coal Co. Inc. v. Miracle, 5 S.W.3d 130 (Ky. 1999) (attached). This logically should include, for instance, recovery under KRS 216.515, resident’s rights actions. And although the KY Supreme Court held a “panel submission” statutory requirement to prove coal worker’s pneumoconiosis by clear and convincing evidence to be unconstitutional, as violating equal protection, the Court focused on the heightened evidentiary standard of “clear and convincing” proof not required for non-coal pneumoconiosis claims. See Vision Mining, Inc. v. Gardner, 364 S.W.3d 455 (2011) (attached). In Gardner, KRS 342.316(13) required “clear and convincing” evidence to rebut a panel consensus for coal workers’ pneumoconiosis claims, while KRS 342.315(2)— addressing other occupational pneumoconiosis and diseases—required only “a reasonable basis” to rebut a university evaluator’s clinical findings and opinions, i.e. a standard lower than “clear and convincing.” The Court was offended by the heightened “clear and convincing” standard, rather than the panel submission requirement. Thus, assuming panel submission had been required for all similar claims, Gardner gives no indication the Court would be opposed to such requirements. As of now, the issue remains unaddressed.
I hope this provides you encouragement as we begin 2017. Happy New Year to All.
Donald L. Miller, II
QUINTAIROS, PRIETO, WOOD & BOYER, P.A.
Attorneys At Law
Managing Partner – Kentucky
9300 Shelbyville Road, Suite 400
Louisville, KY 40222
Telephone: (502) 423-6390
Facsimile: (502) 423-6391
Cellular: (502) 905-7479