I. CAUSES OF ACTION

A. Medical Negligence
In Kentucky, a medical malpractice plaintiff must prove two elements. First, the challenged treatment was a deviation below the degree of care and skill expected of a reasonably competent practitioner of the same class and under similar circumstances; and, secondly, the alleged negligent act proximately caused the claimed injury. Kentucky employs the “substantial factor” test in matters of causation and proximate cause, meaning that the actor’s negligent conduct is a legal cause of harm to another if his conduct is a substantial factor in bringing about the harm.

B. “Loss of Chance” Doctrine
There is no viable loss of chance claim in Kentucky.

C. Wrongful Death
Where an individual dies, allegedly as a result of medical negligence, the individual’s estate will have a claim for wrongful death. A wrongful death claim, and any surviving personal injury claims, must be commenced within one (1) year after the qualification of the representative of the decedent’s estate. However, if there is an interval of more than one (1) year between the decedent’s death and the qualification of his estate’s representative, the claims must be commenced no later than two (2) years after death.
In a wrongful death claim, the plaintiff (the estate of the decedent) is entitled to recover funeral expenses, along with a sum which fairly and reasonably compensates the decedent’s estate for his or her loss of power to earn money during his or her lifetime.
If the decedent was a minor child, the surviving parents may also bring an additional claim for loss of affection and companionship that would have been derived from such child during its minority. Likewise, a minor child has an independent claim for loss of parental consortium.

D. Kentucky Consumer Protection Act
The Kentucky Consumer Protection Act provides that “[u]nfair, false, misleading, or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.” The Kentucky Court of Appeals in the case of Barnett v. Mercy Health Partner-Lourdes, Inc. addressed application of the Act in the health care context. Noting that “there is a business aspect to the practice of medicine,” several examples of what would constitute a violation of the Act by a physician were provided; including (1) informed-consent claims based upon dishonest or unfair practices used to promote a doctor’s practice, (2) when a doctor promotes an operation or service to increase profits and the volume of patients but fails to advise patients of risks or alternative, (3) where a doctor has an undisclosed contract with a hospital that includes a financial incentive for self-referrals and increased billing, or (4) advertising services at a particular cost then charging at a different rate. However, “[n]egligently performing surgery or providing treatment that is below the standard of care and failing to inform a patient of such actions are not included in the business aspect of the practice of medicine. Therefore, they are not covered under the Act.”

An example of a recent medical malpractice case in which a Kentucky trial court did allow a Consumer Protection Act claim, involved allegations that the hospital formed a joint venture with local cardiologists that provided incentives for them to perform certain heart procedures, but the hospital allegedly failed to put in any safeguards to ensure the procedures were necessary. Plaintiff alleged that the parent company anticipated making $90 million over three years from heart procedures and that executives were given bonuses based on productivity and revenue.

E. Negligent Credentialing
A negligent credentialing claim involves allegations that a hospital improperly issued privileges to a physician, resulting in injury to a patient. Such a claim is based on the independent actions or omissions of the hospital and does not depend on any claims the plaintiff may make against the physician. The Kentucky Court of Appeals first recognized the cause of action in a March 2016 decision that is still not final, and there is not yet a Kentucky Supreme Court decision adopting the claim.

F. Informed Consent
Physicians have a general duty to disclose to their patients, in accordance with accepted medical standards, the risks and benefits of the treatment to be performed. Under Kentucky statute, informed consent shall be deemed to have been given where: “(1) The action of the health care provider in obtaining the consent of the patient or another person authorized to give consent for the patient was in accordance with the accepted standard of medical or dental practice among members of the profession with similar training and experience; and (2) A reasonable individual, from the information provided by the health care provider under the circumstances, would have a general understanding of the procedure and medically or dentally acceptable alternative procedures or treatments and substantial risks and hazards inherent in the proposed treatment or procedures which are recognized among other health care providers who perform similar treatments or procedures; (3) In an emergency situation where consent of the patient cannot reasonably be obtained before providing health care services, there is no requirement that a health care provider obtain a previous consent.”

G. Vicarious Liability
In Kentucky, a health care facility can be held vicariously liable for the actions of a doctor or other medical staff who are an agent and/or employee of the facility. If the negligent actor was not in fact an employee and/or agent of the facility, e.g. independent contractor, then the plaintiff has the burden of proving that the facility induced the patient to believe that the negligent actor was an agent of the facility.

II. STATUTE OF LIMITATIONS

A. Statute of Limitations
Actions for medical malpractice must be brought within one year of the accrual of the cause of action. However, the “discovery rule” applies to medical malpractice actions in Kentucky, which means the statute of limitations will not begin running until the date the injury is discovered, or until the date the injury should, in the exercise of ordinary care and diligence, have been discovered.

III. EXPERT PROOF

A. Who is an Expert?
Under Kentucky law, a plaintiff alleging medical malpractice is generally required to put forth expert testimony to show that (1) the defendant medical provider failed to conform to the standard of care and (2) that the alleged negligence proximately caused the injury.

The qualification of a witness as an expert rests within the discretion of the trial court. Any lack of specialized training goes only to the weight, not the competency, of the evidence. There are numerous Kentucky cases where a physician has been found qualified to express an opinion on medical matters outside his area of specialization. A witness can be qualified as an expert by “knowledge, skill, experience, training, or education.”

IV. DAMAGES

A. Available Damages
The damages available in a medical malpractice claim include: past medical expenses; past pain and suffering; lost wages; future medical expenses; future pain and suffering; and future impairment to earn a living. The claimant’s spouse may also recover damages for loss of consortium if he or she can demonstrate loss of the claimant’s services, assistance, aid, society, companionship and conjugal relationship as a direct result of the injury in question.

B. Limitations
Under Kentucky Civil Rule 8.01(2), when a claim is made against a party for unliquidated damages, that party may obtain information as to the amount claimed by interrogatories. If this is done, the trial court is prevented from awarding unliquidated damages that are in excess of the last amount claimed by the plaintiff in answer to written discovery requests. Nevertheless, a trial court has the discretion to grant a plaintiff’s motion to supplement answers to interrogatories, for good cause shown, up until the matter is submitted to the jury.

C. Value of Past Medical Expenses
The collateral source rule allows the plaintiff to seek recovery of the full amount billed for medical services, without consideration of third party insurance payments or write-offs.

DISCLAIMER

This website has been prepared by Dzenitis Newman, PLLC for informational purposes only. Information contained on this website is not intended, and should not be considered, to be legal advice.