Kentucky Medical Malpractice Laws

Kentucky saw many medical malpractice incidents in 2022, with 1,275 cases filed between January 1 and March 31, 2023, placing the state among the top 30% nationwide.

Specifically, over half of the 278 grievances filed with the Kentucky Board of Medical Licensure in 2023 concerned the standard of care provided by physicians.

The 2022 lawsuit against Graves Gilbert Clinic, resulting in a $21.3 million verdict for a patient injured during elective hernia surgery, established a clear legal precedent. It underscored the fundamental requirements for a medical malpractice case, which will be discussed later.

Beyond explaining medical malpractice in Kentucky, this article will recommend organizations that can help you or your loved ones navigate medical malpractice lawsuits. These resources may provide affordable or free legal counsel.

What Qualifies as Medical Malpractice in Kentucky?

Kentucky establishes what counts as medical malpractice in at least two cases decided by the state’s Court of Appeals; basically, a medical malpractice suit requires that the following facts be established:

• There was an expected level of care or skill to be exercised by a healthcare provider while treating a patient. 

• That expected level of care or skill was not met during treatment.

• The failure to meet the expected level of care or skill was the proximate cause of the patient’s injury or death. 

Kentucky law defines a "patient" as an individual with an express or implied agreement for health care services from a licensed provider. Meanwhile, "health care" encompasses any act or treatment given or owed during care for a physical or mental condition. Finally, "malpractice" refers to legal wrongs or contractual breaches arising from health care services provided or not provided.

Another thing to note is that though Kentucky does not distinguish between "malpractice" and "negligence" in legal claims, there are key differences between them.

Who Can You Sue for Medical Malpractice in Kentucky?

When Kentucky laws talk about medical or healthcare providers in the context of medical malpractice suits, it could mean any of the following:

• Physicians.

• Osteopaths.

• Dentist.

• Podiatrist.

• Nurse or nurse's assistant.  

• Certified registered nurse anesthetist.

• Physical or occupational therapist.

• Psychologist.

• Any facility licensed under any act of the state to provide health care. 

Basically, any healthcare provider, from individual practitioners to big hospitals, can be held accountable for medical malpractice as long as they operate with a state-issued license. This applies to both public facilities like hospitals and outpatient clinics, as well as company-specific healthcare setups serving only employees.

Exemptions

Making a medical malpractice claim in Kentucky can be complicated. While you can generally sue if a medical professional or facility's negligence hurts you, it is more challenging if your treatment just does not meet your expectations. Kentucky law protects providers unless they specifically promise in writing that the treatment will work.

Another tricky area is emergency care. Good Samaritan laws shield anyone who gives free, good-faith emergency aid outside a medical facility (like on the street) from lawsuits, even if their actions unintentionally cause harm. This protection does not apply to house calls, however.

Medical Malpractice Liability Insurance Requirements

Kentucky does not require medical care providers to carry medical malpractice liability insurance. Still, some private medical facilities like hospitals and clinics may require their staff to carry such insurance as a continuing employment requirement.

On the flip side, Kentucky does require its medical malpractice insurance providers to provide the state’s Department of Insurance with a report detailing their medical malpractice insurance dealings. This document must include details about their business dealings and the names of all health care providers they insure who have had a malpractice claim settled or adjudicated against them.

What Is the Statute of Limitations in Kentucky for Medical Malpractice Cases?

In general, the statute of limitations for medical malpractice claims in Kentucky is one year. It is also important to note that Kentucky applies the discovery rule. This means that the one-year statute of limitations starts once the claimant gains knowledge of the medical malpractice or is legally presumed to have known about the incident.

An example of the discovery rule being applied can be found in the Wiseman v. Alliant Hospitals, Inc. case. The plaintiff filed a medical malpractice claim in 1996 after discovering that a piece of metal implement was left in her body during a procedure that occurred in 1989.  

In the same case, the Kentucky Supreme Court also recognized the rule of continuous treatment. This principle states that the statute of limitations cannot run against a patient who, in good faith, continues to receive treatment from the medical services provider responsible for their injury. Under these conditions, good faith implies trusting the doctor's treatment, even if it's ineffective, with hope for improvement.

Notably, the Bluegrass State does not use any statute of repose. The Kentucky Supreme Court has ruled that statutes of repose violate the people’s rights to open access to the courts.

What Do You Need to Prove in a Kentucky Medical Malpractice Case?

To reiterate the basics explained earlier, for a situation to qualify as medical malpractice, the following must be established:

• There is an expected level of care or skill to be exercised by the medical services provider during treatment.

• The level of care or skill is not met during treatment, whether by negligence or on purpose.

• The patient is injured or passes away due to this negligence.

• There is a substantial connection between the medical services provider’s failure to meet the expected level of care or skill and the patient’s injury or death.

The legal standard of proof for medical malpractice is "preponderance of the evidence," which means the plaintiff must present evidence that makes it more probable than not that the healthcare provider deviated from the standard of care and caused harm.

While medical records and expert testimonies are the backbone of evidence in medical malpractice claims, blatant cases of negligence can establish liability immediately based on the starkness of the patient's injury or death.

In the Wiseman case cited above, the fact that there was a bit of metal from a medical instrument lodged in the patient’s buttocks region is enough evidence on its own to show that there was medical malpractice.

An additional requirement that Kentucky places on the plaintiff in a medical malpractice case is the acquisition of a certificate of merit. This is an affidavit or declaration that the plaintiff has consulted with a physician who is reasonably knowledgeable about the plaintiff’s issues and has confirmed that there may be a cause of action for medical malpractice.

Remember, a signed statement from the medical provider guaranteeing the effectiveness of a treatment that failed can be valid evidence of medical malpractice. This is especially true if the treatment did not produce the results they promised or explained.

Related to the law above is the concept of informed consent, which requires medical practitioners to thoroughly inform patients about the expected results and side effects of procedures and medicines before applying them. 

Kentucky healthcare providers who fail to obtain the informed consent of their patients may also be held liable for medical malpractice. There are only a few situations in which informed consent is assumed to have been obtained, namely the following:

• When the health care provider performed the actions necessary to obtain the patient’s informed consent according to their profession’s standards.

• When the patient, as a reasonable individual, should have understood the effects of the procedure and possible alternatives given the information provided to them by the health care provider.

• When the patient could not have reasonably provided informed consent, such as in emergency situations.

How Much Can You Sue for Medical Malpractice in Kentucky?

According to the Kentucky Constitution, there are no limits to how much you can sue for medical malpractice or how much you can recover in a medical malpractice suit. It is generally up to the court to determine how much you recover, with legal counsel assisting in establishing compensable damages in arbitration or litigation using evidence and expert testimonies.

Types of Damages

In general, a plaintiff in a medical malpractice action can receive economic and non-economic damages for their claims.

Economic damages cover tangible losses incurred by the victim, such as current and future medical expenses and lost income. Non-economic damages compensate for intangible losses, such as the plaintiff’s pain and suffering caused by the incident of medical malpractice or the loss of affection and companionship a parent might have felt from their minor child. 

Non-economic damages have a chance of not being rewarded despite there being actual medical malpractice. For example, in Bayless II v. Boyer, the Supreme Court upheld the non-zero verdict for pain and suffering because it was not corroborated by the evidence on hand.

Additionally, plaintiffs may be awarded punitive damages, which are meant to punish the defendant for egregious conduct during the medical malpractice incident, such as oppression, fraud, or malice. However, these damages are rarely awarded due to the high burden of proof, requiring clear and convincing evidence of such intentional wrongdoing.

Negligence System

Kentucky has a pure comparative negligence system, meaning that if the plaintiff is partially responsible for the medical malpractice incident, the damages awarded will be reduced by a percentage equal to their responsibility. 

In the Bayless case mentioned earlier, the Kentucky Supreme Court found it proper to uphold the jury instructions on comparative negligence on the part of the plaintiff because neither the plaintiff nor their parents sought further medical treatment following the misdiagnosis, despite the chronic wrist pain they felt while playing baseball.

Methods of Obtaining Compensation

In Kentucky, you may obtain compensation through a final judgment from the court or through settlements made outside of litigation proceedings. The state does not have statutes in place formalizing the arbitration or mediation proceedings for medical malpractice claims.

How Much Does It Cost to Pursue a Medical Malpractice Case in Kentucky?

Medical malpractice cases are complex and require careful consideration of both legal and medical aspects. While medical malpractice cases in Kentucky usually cost around $1 million, the state has no statutory cap or limit on compensatory damages that plaintiffs can receive. This results in the costs varying from case to case. Kentucky's average payout per medical malpractice case was around $250,000 in 2021.

To file a lawsuit, it is necessary to obtain an opinion from a reviewing doctor stating that there has been a breach of the standard of care. This initial opinion usually comes in the form of the certificate of merit mentioned earlier. It can cost you an average of $1,500, with the amount escalating to $10,000 and beyond if your case goes to trial.

In addition to the mentioned fees, Kentucky law places no cap on contingency fees for attorneys. However, legal counsel is prohibited from entering into agreements or charging fees and expenses that are deemed unreasonable. 

What is deemed unreasonable depends on a case-by-case basis. Still, courts generally consider factors such as the time and effort required to litigate or arbitrate your case, the complexity of the legal issues, and customary fees in the local legal community for similar services.

Legal Resources for Medical Malpractice Victims in  Kentucky

Overall, when Kentucky residents suffer harm due to a healthcare professional's error or negligence, getting the legal support they need is critical. Medical malpractice can leave lasting physical, emotional, and financial burdens, and navigating the legal system to seek compensation can feel overwhelming. 

As such, understanding the legal options available and utilizing them well can make a big difference. Here are some resources that can help medical malpractice victims pursue justice:

Kentucky Bar Association Legal Aid Program

The Kentucky Bar Association, which operates as an autonomous entity under the jurisdiction of the Supreme Court of Kentucky, oversees and regulates the legal profession in the state. As the primary regulatory body, the Kentucky Bar Association upholds professional standards within the state. 

An example is its Legal Aid Program for those who cannot afford an attorney. Medical malpractice victims can go to the Kentucky Bar Association and find an attorney who can advise them on their claims and may provide a referral to a local office for extended service.

Northern Kentucky Volunteer Lawyers, Inc.

Northern Kentucky Volunteer Lawyers, Inc., is a nonprofit organization committed to providing pro bono legal assistance to individuals facing various legal challenges in northern Kentucky. In partnership with Legal Aid of the Bluegrass and the Northern Kentucky Bar Association, the organization seeks to narrow the gap for low-income and vulnerable individuals and families when accessing legal resources. 

One of the organization's functions is to establish connections between people seeking resolution for medical malpractice and lawyers who have volunteered their time and expertise. This supports its goal of building a more inclusive and supportive legal community throughout the state.

Legal Aid of the Bluegrass

Originally called the Northern Kentucky Legal Aid Society in 1967 before merging with two other legal aid organizations in the following years, Legal Aid of the Bluegrass commits itself to addressing the pressing issues faced by low-income and vulnerable individuals. 

The organization delivers legal assistance to said individuals through direct representation, education, advice, and collaboration with community resources. Its primary goal is to champion the rights of those in need through strategic litigation and equitable access to justice for all.

kyjustice.org

Established through a collaboration between Kentucky’s four legal aid programs and the Kentucky Access to Justice Commission, kyjustice.org represents the collective effort of the Legal Aid Network of Kentucky. The network, focused on promoting access to justice, offers legal self-help resources, information, and referrals to individuals requiring representation in civil law cases, from housing to health. 

kyjustice.org is driven by the belief that everyone should have equal access to the legal system, reinforcing the commitment to address diverse legal needs faced by low-income and vulnerable individuals within the community.

Kentucky Lawyer Referral Service

The Kentucky Lawyer Referral Service is a public resource backed by the Louisville Bar Association. It facilitates legal assistance by connecting callers and online users with qualified attorneys in their local vicinity. Through a systematic inquiry process about the caller’s legal concerns, the service creates a tailored referral for those who wish to seek legal aid. 

While pro bono attorneys are not an option in this service, individuals who meet federal poverty level guidelines can access reduced-fee attorneys across various legal domains.