Kentucky Medical Malpractice Laws

Medical malpractice claims can be incredibly complex and difficult, and not just in terms of seeking damages. When a medical malpractice claim occurs, the trust between the healthcare provider and the patient has been broken. It can be difficult to know what steps need to be taken in order to seek the appropriate legal remedy. If you or a loved one has been a victim of medical malpractice, you only have a limited period of time in which you are able to bring a claim.

The law in Kentucky has put a number of steps in place that been to be completed before you can even start your case. This page was created to provide a brief overview of what you may expect if you are pursuing a medical malpractice claim in Kentucky; however, the best course of action to take if you are considering doing so is to consult with an experienced medical malpractice attorney license in Kentucky.

Suing for medical malpractice in Kentucky

Kentucky medical malpractice law is very straightforward when compared to many other states. Kentucky treats medical malpractice the same way it treats any other type of personal injury case, and attempts at medical malpractice reform have been unsuccessful in the state. You do have a set period of time to file a medical malpractice claim that depends on the circumstances of your case and your age.

Once a claim is brought against the appropriate defendants, the law in Kentucky allows named defendants to claim comparative fault as a defense for the reduction of damages. Kentucky is a pure comparative negligence state and any fault attributed to you will reduce your award equal to your share of the blame. While your award could be reduced by your own fault, there are no damage caps in Kentucky.

How long do I have to file a medical malpractice case in Kentucky?

If an instance of medical malpractice has been committed, the injured party only has a specified amount of time during which a claim against the medical provider can be brought. This time period is articulated in law and is known as the “statute of limitations.” These laws were created to ensure that claims are brought in a reasonable about of time and any evidence remains accessible to both parties.

Kentucky requires that any party wishing to bring a medical malpractice case must file the claim within one year after the cause of action accrued.[1] A medical malpractice cause of action “accrues” when the medical malpractice is discovered or should have been discovered in the exercise of reasonable care. This means that once you know, or should know in the eyes of the law, that you were harmed by a medical error, the clock starts running and you have one year to get your case filed.

In Kentucky there is also a catch-all filing deadline, know as a statute of repose. This says that any medical malpractice lawsuit “shall be commenced within five years from the date on which the alleged negligent act or omission is said to have occurred.”[2] Once five years have passed since the alleged malpractice was committed, you right to file a medical malpractice lawsuit in Kentucky is lost. This is true even if you did not know that you were harmed by malpractice during that time.

The statute of limitation may be extended if the victim was a minor or under a disability, at the time the cause of action accrued. If a heath care provider has injured a minor, the statute of limitations does not begin to run until the date of the minor’s eighteenth birthday.[3] If the victim is disabled, the statute of limitations will begin to run once the disability is removed.[4]

In Kentucky medical malpractice cases, who is responsible?

In a medical malpractice case, there are a number of different medical professionals and facilities that can be held liable. Kentucky law defines “health care provider” as encompassing health facilities, pharmacists, and independent practitioners.[5]

A “health facility” is defined as “any institution, place, building, agency, or portion thereof, public or private, whether organized for profit or not, used, operated, or designed to provide medical diagnosis, treatment, nursing, rehabilitative, or preventive care and includes alcohol abuse, drug abuse, and mental health services.”[6] Some examples include:

• a hospital
• a psychiatric hospital
• a rehabilitation hospital
• a chemical dependency program
• a nursing facility
• a nursing home
• a primary care center
• an outpatient clinic
• a home health agency

Additionally, the following independent practitioners can be held liable:

• a physician
• an osteopath
• a podiatrist
• a chiropractor
• a dentist
• an optometrist
• a physicians assistant
• a nurse practitioner
• other health care practitioners

Any healthcare provider that is licensed or certified to perform treatment or to provide medical services may be held liable for medical malpractice in Kentucky. There are no restrictions as long as a medical provider is properly license or certified.

What if I am partially to blame? Can I still recover money for KY medical malpractice?

Kentucky is one of the many states that adheres to the doctrine of comparative fault. Comparative fault applies to all tort actions, including products liability claims and incidents involving the fault of more than one party.[7] Under this doctrine, a percentage of fault can be assigned to each party to the case, and the verdict is apportioned accordingly. What this means is that any fault attributed to the plaintiff will reduce the plaintiff’s award by an amount equal to the share of the blame.

For example, a patient in a medical malpractice case is awarded $100,000 in total damages but is found to be 25 perfect at fault for failing to follow the doctor’s after-care instructions. The patient will receive $75,000 based on the percentage of fault. The original $100,000 award will be reduced by 25 percent, which equates to $25,000.

Are there medical malpractice recovery caps in Kentucky?

In a successful claim for medical malpractice, the plaintiff will be awarded monetary compensation for his or her injuries, otherwise known as “damages”. There are three types of damage awards a plaintiff may receive:

Economic Damages include the amount of money that a plaintiff has lost or will be required to pay in the future because of the injury. Economic damages can consist of medical bills, loss of income, including past and project future decrease in earnings, and costs associated with the injury, such as modifications made to a home or vehicle to accommodate a disability.

Noneconomic Damages include harm that a plaintiff has suffered that is more subjective and less quantifiable. Kentucky law defines “noneconomic detriment” as: pain, suffering, inconvenience, physical impairment, and other nonpecuniary damages recoverable under the tort law of Kentucky.[8] In the event the medical malpractice leads to the wrongful death of a minor, the surviving parents may also recover for loss of affection and companionship.[9]

Punitive Damages are not intended to compensate the victim for harm or injury, instead, these damages are intended to punish the defendant and deter future behavior. As such, punitive damages are rarely seen in medical malpractice cases. Kentucky does stipulate that punitive damages may be recovered if the medical malpractice was willful or grossly negligent and resulted in wrongful death.[10]

The state of Kentucky does not impose damage caps in any type of injury case.[11] Both economic and non-economic damages are uncapped. This can lead to very favorable verdicts for plaintiffs.

Expert witness reporting and testimony

An expert witness is a specialist in a field that presents his or her expert opinion without having to be a witness to any incident relating to the lawsuit. The testimony given by an expert witness can be invaluable if you are bringing a claim of medical malpractice. Both the plaintiff and the defendant may put forth testimony from expert witnesses.

Unlike most states, Kentucky does not have any pre-suit notice requirements in medical malpractice cases. A medical malpractice case 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 to file a pre-suit affidavit of merit singed by an expert witness. Because Kentucky does not have specific medical malpractice laws and treats medical malpractice the same as other personal injury cases, the state has not implemented any additional requirements to show that a standard of care was breached by a qualified expert before filing a medical malpractice claim.

Regarding expert witnesses, most medical malpractice claims require expert testimony in order to prove negligence and your case. The only exception is if the facts of a case establish a prima facie case of negligence. A prima facie case is one in which the injury could not have occurred without negligence and the facts of the case present enough evidence to support the legal claim. For example, a foreign object that is left inside your body and causes an infection would be considered a prima facie case of medical malpractice. You do not need an expert to testify that 1) leaving a foreign object in your body is negligent, and 2) but for the presence of the foreign object, you would not have been injured. This is a very plaintiff-friendly aspect of Kentucky medical malpractice law because it allows plaintiffs to avoid the cost of medical expert witnesses.

Are some parties immune from medical negligence cases?

Under Kentucky law, there are a limited number of circumstances where physicians and other care providers are protected by limited liability. First, physicians cannot be held liable for malpractice or negligence if a patient’s medical condition deteriorated, or the patient died, from the lack of accepted modes of therapy, and the patient used amygdalin as the sole treatment and signed a written informed request for the medication.[12] Physicians are also immune from civil liability if they are involved with the site placement of an automated external defibrillator and any personal injury arises.[13] Finally, physicians and pharmacists are immune from liability for prescribing, filling a prescription, or authorizing the use of an epoinephrine auto-injector that results in personal injury.[14]

While Kentucky does provide for instances of limited liability, the limited liability has very strict parameters. If the personal injury results from gross negligence or willful or wanton misconduct of the physician, the immunity from liability will not apply.[15]

Settling medical malpractice cases in KY

Kentucky does not require any form of alternative dispute resolution such as arbitration or mediation prior to trial. However, mediation is a popular alternative to reaching a settlement in lieu of going to court. Mediation is an informal process where a neutral mediator facilitates the resolution of a dispute between two or more parties.

Mediation is an appealing option in most cases because of the low cost and the expedited resolution. In Kentucky, private mediators generally charge $125-$200 per hour, and volunteer mediators are sometimes available at no cost to the parties. Mediation can be as short as one hour or it can take several hours over several sessions, depending on the facts of the case, the number of parties, and the complexity of the issues.

Either party in a medical malpractice claim, or the Court, may refer the case to mediation at any time. Generally, pursuing mediation will not temporarily stop, or stay, any other court proceedings unless the stay has been ordered by the Court. Once a request for mediation has been made, the parties have fifteen days to select a mediator or one will be chosen by the Court.[16]

The parties must attend the mediation conference. Counsel generally attends as well, unless otherwise agreed to by the parties and the mediator, or ordered by the Court. The mediator has to report the status of mediation to the Court, whether it has not occurred, has not been completed, or whether it has been completed with or without an agreement. Mediation usually covers topics like the issues in the lawsuit, the possible consequences of the case going to trial, relevant financial information, your needs, and what you will be seeking in terms of damages should the case go to trial.

If an agreement is reached during the mediation conference, the agreement will be put in writing and signed by the parties. At that time, there were be no reason to move forward with the trial so the trial date will be vacated for a full agreement. If no settlement is reached during the mediation conference, the case will continue to trial, but it does not preclude future settlement attempts. A case can be settled at any time before trial.

Litigating medical negligence cases in Kentucky

A claim for medical malpractice in Kentucky begins with the filing of a complaint. Many times, the claim is settled prior to trial. However, there are cases with complex issues on which the parties cannot agree so the claims proceed to either a bench or jury trial. If one party believes that the trial court incorrectly handled a legal issue, the case may be appealed to a higher court.

Initiating the Case

If the parties to a medical malpractice lawsuit are unable to reach a settlement, the claim will proceed to civil court. In Kentucky, a civil action begins by filing a complaint with the clerk of the court and issuing a summons. Every complaint must include:

• A caption stating the name of the court; the style of the action, which must include the names of all of the parties; the file number; and a designation.[17]
• A short and plain statement of the claim being made and a demand for judgment.[18]
• All allegations of a claim or defense in numbered paragraphs and each paragraph must be limited to a single set of circumstances.[19]
• The signature and business address of the representing attorney or unrepresented party on all papers.[20]

A civil summons lets the named defendants know that a lawsuit has been filed against them. The complaint and summons must then be delivered to all named defendants in the lawsuit.[21] Upon receipt, the defendants have 20 days to file an Answer that admits and/or denies statements made in the complaint.[22]

Preparing for litigation

After the complaint and answer have been filed, the parties may begin the discovery process. This involves gathering all facts, evidence, and any other information that may be relevant to the case. In a medical malpractice case, medical records and doctor’s notes are usually items that will be requested for disclosure.

Each party may obtain discovery through:

• Deposition;
• Written interrogatories;
• Requests for admission;
• Request for production of documents or other information; and/or
• Physical and mental examinations.[23]

A deposition is an out-of-court statement that is given under oath and will be recorded for later use during litigation. In Kentucky, depositions can be oral examination or written questions.[24] Depositions do not normally take place a court room; instead, they take place at the court reporter’s office or in the office of one of the law firms involved in the case. Generally, the deposition is attended by the person being deposed, their attorney, a court reported, and other parties in the case. Attorneys are present to help advise their client on how to answer certain questions as well as make objections if necessary. Through this question and answer session, opposing counsel will try to discover what facts the opposing party believes to be true and what facts may be exaggerated.

Written interrogatories are written questions sent to the opposing party and must be answered in writing under oath. Attorneys may help their clients answer interrogatories so the responses tend to be more finely crafted than answers to a deposition. If a party decides to use an interrogatory, the questions will be sent to the opposing party’s counsel and there will be a set period of time during which the questions may be answered. The number of questions included in an interrogatory is limited to 30 in Kentucky.[25]

Request for admission is a set of statements drafted by one party and sent to the opposing party where the received must answer the questions in the affirmative or negative. In a medical malpractice case, an example of a request for ad mission would be a statement like, “the defense has no evidence to show that the claimant caused their own injuries.” If the defense answers in the negative, the claimant would know that the defense is intender to introduce some type of evidence to show that the claimant was at least partially to blame for their own injury.

Production of documents is a request made to the opposing side when tangible documents are sought. In a medical malpractice case, a request for production of documents would be a request to view medical records.

It is possible that the person bringing the medical malpractice claim will need to be medically evaluated in order to verify that the injury at issue does in fact exist. This can be a physical or mental evaluation depending on the injury at issue.

Pretrial litigation

Litigation can be a long, arduous, and expensive process so it is not uncommon for a case to settle prior to reaching the trial stage of litigation. Most personal injury and medical malpractice claims do not ever reach the inside of the courtroom. The parties are permitted to agree to a settlement at any point during the pretrial process. As mentioned above, the parties may voluntarily agree to mediation.

If the parties are unable to come to a settlement early in the process, they may still reach a settlement before heading to trial. In many instances, a settlement will come much later in the pretrial process after a majority of the discovery has been conducted. By this time, both parties will have access to the evidence that supports the claim of the opposing party and will be in a better position to determine what terms they would be willing to settle.

Trial

If the parties are unable to reach a settlement during the pretrial phase, the case will go to trial. During trial, all evidence that is deemed admissible will be presented to the “trier of fact.” A trier of fact is a person or a group of people who hear testimony and review evidence in order to issue a ruling in favor of one party of another. In Kentucky, there are two potential triers of fact in a personal injury case: a judge (this is known as a bench trial) or a jury (this is known as a jury trial).

A jury is a group of citizens that are selected at random. In Kentucky, to qualify for jury service you must:

• Be 18 years of age or older;
• Be a United States citizen;
• Be a resident of the county where the case is to be tried;
• Be able to speak and understand English;
• Not be under current indictment;
• Not have been convicted of a felony; and
• Not have served on a jury within the past 24 months.

To choose a jury, a procedure known as “voir dire” is conducted to determine the biases of potential jurors. The attorneys for both parties will ask potential jurors questions to determine what jurors they would like to remove from consideration. Once each side finishes announcing who they want to be removed, the jury is impaneled.

After jury selection is completed, the trial will begin. The plaintiff will argue their case first. After all of the plaintiff’s evidence has been presented and all of the witness has been called, the plaintiff will rest their case. At that time, the defense will begin to present their evidence. The defense will present the physician’s side of the case and attempt to show why negligence was not involved in creating the patient’s injury. Once all of the evidence has been heard from both parties, instructions will be given to the jury who will then deliberate on the facts of the case and make a finding.

If the parties choose a bench trial over a jury trial, the judge decides the questions of fact and the questions of law. The process is the same as a jury trial with the judge hearing evidence from the plaintiff and the defense. The advantage of a bench trial is they are usually much faster than a jury trial.

Appeal

Often, the losing side in a medical malpractice case will choose to appeal a decision from the lower court. An appeal is a legal preceding that allows a higher court to review the decision of a lower court. An appeal is very different from the initial trial because the court does not hear any testimony and does not determine the facts of the case. Instead, the appeal court decides if the lower court made an error of law or made a factual determination unsupported by evidence.

In Kentucky, you have 30 days to appeal the decision of a lower court once a judgment has been issued.[26] Appeals from District Court are heard in Circuit Court, and appeals from Circuit Court are heard in either the Kentucky Court of Appeals or the Supreme Court of Kentucky.

How to find the best Kentucky Medical Malpractice Lawyer for your case

If you or a loved one has been the victim of medical malpractice, one of the most critical steps you can take towards ensuring that you are appropriately compensated for the losses you have suffered is to hire an experienced medical malpractice attorney. The options may seem overwhelming at first, but there are some tips that can help you find the law firm or attorney that best meets your needs. Medical malpractice cases can often take a significant amount of time and therefore it is imperative that you feel comfortable with and confident in your legal counsel.

Find out what type of law the firm practices: This may seem obvious, but many times attorneys will practice in a variety of practice areas. The more narrow focus a lawyer or firm has, the more you can be confident that they are well-versed in intricacies of medical malpractice. Experience counts. Look for a firm that dedicates a great deal of its practice to defending victims of medical negligence. You can also ask the law firm directly about their medical malpractice case record.

Look for a lawyer with medical experience: Malpractice claims can be incredibly complex and they require a deep understanding of medicine and medical records. Because the cases involve medical experts and insurance representatives who speak extremely technical jargon, your lawyer should be able to effortlessly use these terms, too. Lawyers with former medical experience can be extremely valuable in a negligence case. If your lawyer is a former physician, for example, he or she will be able to understand your medical records without relying on outside help. A lawyer with medical training will also be better able to tell when medical experts are not telling the truth.

Check the attorney’s case record: A medical malpractice firm or attorney will do you no good if they never win a case. Most attorney websites and directory profiles will highlight information about past cases and recovery amounts. This is a test of credibility, capability, and longevity: a firm with many previous courtroom wins likely knows how to pursue maximum compensation for its clients.

Research how a law firm handles the press and your privacy: Some law firms reveal information about past cases in great detail on their websites or in new articles, putting a client’s personal information all over the Internet. When envisioning your own future, you may not want to have your own name, medical details, and settlement amount in the public eye. Consider privacy when selecting an attorney. How does the firm use its previous clients’ information? Although you would likely be able to request that your settlement and name be kept private in any circumstance, the way a firm chooses to use its clients’ information may reveal something about the firm’s overall principles, too.

Make sure there is good communication between you and the attorney: You should contact an attorney as soon as you think you may be a malpractice victim. If a potential firm takes too long to contact you, this could be a bad sign for future communication. Your attorney should be easy to contact and quick to communicate with you. Look for a lawyer who returns your calls promptly and takes the time to get to know you and your case.

Feel comfortable with the attorney (and/or their staff): Due to the nature of a medical malpractice case, you may be required to share substantial medical information with your legal team. You should feel comfortable and confident with your attorney and any support personnel, such as a paralegal, that you may be working with throughout the duration of the case. You should also feel that you are treated with respect and that your legal team will be dedicated to keeping you up-to-date on the progress of your case. You could ask the attorney who will be your point of contact as the case progresses.

Understand the fees associated with your case: Medical malpractice cases are long and expensive. Before you choose an attorney to represent you, make sure you have carefully reviewed his or her fees and costs. Most malpractice attorneys abide by a contingency fee, which means that you only pay them if you win the case. This will be a set percentage of your settlement. When you weigh the amount of time and emotional energy it takes to settle a malpractice claim, your attorney’s fees may play an important role in deciding which lawyer to choose.

Some notable medical malpractice law decisions from Kentucky

These cases represent awards to plaintiffs in medical malpractice cases in Kentucky. It is important to note results in the past are no guarantee of results in subsequent cases with similar circumstances.

Satterwhite v. Dr. Sekela

In 2006, the plaintiff, Latricia Satterwhite, underwent surgery on the mitral valve in her heart. The surgery on the mitral valve was successful, but Ms. Satterwhite was left paralyzed from the waist down because of the operation.

The surgeon, Dr. Sekela, misplaced the hose supplying blood from the heart-lung bypass machine at the outset of surgery. The hose delivered too much blood to the patient’s right arm and not enough blood to her brain and thoracic spinal cord. As a result, Ms. Satterwhite can no longer walk and she suffered mild to moderate brain damage.

Ms. Satterwhite sued Dr. Sekela, alleging that the misplacement of the bypass hose caused her brain and spine to be deprived of oxygen, leading to her paralysis. The jury found in favor of Ms. Satterwhite and awarded her $455,000 in past medical experiences and $4.4 million for future medical bills. She was awarded $482,000 in lost wages and $4.5 million for pain and suffering. The total verdict was $9,864,175.78.

Burris v. Daniel Young, Robert Young, and Robert Young and Daniel Young DMD

The plaintiff, Ms. Jennifer Burris, sought dental treatment from Robert Young and Daniel Young DMD for a number of years. The dentists failed to diagnose Ms. Burris’ worsening periodontal disease. As a result, she had to have fourteen teeth pulled, which were replaced with painful and unsightly dental implants.

The defendants mounted a vigorous defense at trial, arguing that Ms. Burris’ lifestyle choices led to the loss of her teeth. The defense also argued that Ms. Burris did not have gum disease and even if they, the dentists, had missed the gum disease it would not have caused Ms. Burris to lose her teeth.

After lengthy deliberations, the jury found in favor of Ms. Burris. She was awarded $328,199, which is the largest recorded mental malpractice jury verdict in Kentucky.

Footnotes

[1] Kentucky Revised Statutes 413.140(1)(e)

[2] Kentucky Revised Statutes 413.140(2)

[3] Kentucky Revised Statutes 413.170(1)

[4] Kentucky Revised Statutes 413.170(1)

[5] Kentucky Revised Statutes 216.2920(5)

[6] Kentucky Revised Statutes 216B.015(13)

[7] Kentucky Revised Statutes 411.182

[8] Kentucky Revised Statutes 304.39-020(11)

[9] Kentucky Revised Statutes 411.135

[10] Kentucky Revised Statutes 411.130(1)

[11] Constitution of Kentucky, Section 54

[12] Kentucky Revised Statutes 311.962

[13] Kentucky Revised Statutes 311.668

[14] Kentucky Revised Statutes 311.647

[15] Kentucky Revised Statutes 311.668(3); Kentucky Revised Statutes 311.647(3)

[16] Kentucky Model Mediation Rules

[17] Kentucky Rules of Civil Procedure 10.01

[18] Kentucky Rules of Civil Procedure 8.01(1)

[19] Kentucky Rules of Civil Procedure 10.02

[20] Kentucky Rules of Civil Procedure 11

[21] Kentucky Rules of Civil Procedure 4.01, 4.07

[22] Kentucky Rules of Civil Procedure 4.02

[23] Kentucky Rules of Civil Procedure 26.01(1)

[24] Kentucky Rules of Civil Procedure 30, 31

[25] Kentucky Rules of Civil Procedure 33.01(3)

[26] Kentucky Rules of Civil Procedure 73.02(1)(a)