Saturday, March 3, 2018

Senate passes medical tort reform bill, 20-16

By Melissa Patrick
Kentucky Health News

FRANKFORT, Ky. -- A medical tort reform bill passed the state Senate by an unusually close 20-16 vote March 1, with six Republicans and 10 Democrats opposing it. The vote raises doubts about the bill's prospects in the House.

Senate Bill 20, sponsored by Sen. Ralph Alvarado, R-Winchester, a physician, would limit contingency fees for attorneys in medical malpractice cases to 33 percent and keep apologies or expressions of regret by health-care providers from being used in malpractice cases.

A provision to keep medical peer reviews out of malpractice cases was removed from the bill because the legislature has already sent Gov. Matt Bevin a House bill with that provision.

The 33 percent limit was in a floor amendment adopted by voice vote and offered by Sen. Whitney Westerfield, R-Hopkinsville, chair of the Senate Judiciary Committee. It replaced original provisions that would have limited fees to 35 percent of the first $100,000 in damages, 25 percent of the next $100,000 and 10 percent of damages over $200,000.

Sen. Ray Jones, D-Pikeville, passionately opposed the bill in a floor speech. He said that it is a fundamental right of individuals to be able to enter into a contract and negotiate a fee amount with an attorney of their choosing. He added that limiting contingency fees will "prevent people from being able to get quality lawyers that will be willing to pursue their cases."

Jones, a lawyer, disputed Alvarado's assertion that Delaware has the same rules, saying the state allows attorneys and clients to contract around them. "This piece of legislation favors health care providers to the detriment of injured patients," he said.

The bill would also add to the review process that the legislature approved last year. Alvarado said that if a panel finds for the defendant, the plaintiff would be required to submit a sworn statement from a doctor saying that it has merit.

The bill would also change the law that allows any third party to be able to get medical records for free, which Alvarado said allows lawyers to go on "fishing expeditions" to find clients. The new rule would only allow patients free access to their own records. A floor amendment adopted by voice vote added an exemption for attorneys working without charge to have free access to their client's records.

Rep. Robin Webb, D-Grayson, a lawyer, also spoke against the bill. "This is against the medical consumer, it is against the patient, and once again against the right to contract and the free market principles that we hear so much about" from Senate Republicans, she said.

Republican senators voting against the bill were Tom Buford of Nicholasville, Jared Carpenter of Berea, C.B. Embry of Morgantown, John Schickel of Union, Wil Schroder of Wilder, and Brandon Smith of Hazard. Sens. Julie Raque Adams, R-Louisville, a lawyer who chairs the Senate Health and Welfare Committee, and Sen. Reginald Thomas, D-Lexington, who is running for Congress in the Sixth District, did not vote.

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