Medical Malpractice and Professional Liability Defense

Peer Review Privilege in Kentucky: A Revolution in Public Policy

KRS 311.377 grants broad privilege protections to peer review proceedings and documentation.  As effective on July 14, 2018, this statute extends privilege and confidentiality protections to “the proceedings, records, opinions, conclusions, and recommendations of any committee, board, commission, medical staff, professional standards review organization, or other entity” engaged in performing a designated professional review function.  This grant of privilege was enacted, and is effective, in extending statutory protections for nearly all information arising from the retrospective review and evaluation of the competency of professional acts or conduct of healthcare personnel.  The 2018 amendments legislatively overrule a long history of Kentucky law that denied privilege protections to healthcare peer review proceedings.  More >

ALERT: Medical Review Panel Act Dead; No Rehearing in Claycomb v. Commonwealth

Yesterday the Kentucky Supreme Court DENIED the petition for rehearing in the Medical Review Panel Act case, Claycomb v. Commonwealth. This means several things moving forward: More >

Trends in Malpractice Litigation

For providers who are trying to forecast the future of the medical malpractice landscape, the outlook is hazy. On one hand, Kentucky recently implemented medical review panels, which may ultimately impact the number of malpractice claims that reach the settlement or trial phase. On the other hand, malpractice payouts are again on the rise; reliance on new technology has the potential to push malpractice rates; and the medical review panels mentioned at the outset of this article continue to face legal obstacles moving forward. More >

Court of Appeals Highlights the Impact of Overstreet v. Kindred on Kentucky’s Residents Rights Act

In Overstreet v. Kindred Nursing Centers Limited Partnership, 479 S.W.3d 69 (2015), the Kentucky Supreme Court set out to clear up some confusion regarding Kentucky’s Residents Rights Act, KRS 216.515.  That statute provides a list of specifically enumerated rights to residents of long-term care facilities, as well as the ability to sue for an infringement of those rights.  However, until Overstreet, the question of who may assert those rights—and when they may be asserted—had not been definitively addressed by the Commonwealth’s highest Court.  In Overstreet, the Supreme Court provided clarity on each of these issues, holding that certain KRS 216.515 claims fail to create any new theory of liability, and are instead simple codifications of personal injury claims over which a one-year statute of limitations applies.  Meanwhile, other claims brought under KRS 216.515 were ruled to create new, statutory-driven causes of action over which a five-year statute of limitations is applicable.  More >

With Great Power, Comes Great Liability?

As medical advancements and patients in need of medical care continue to increase, the role of mid-level practitioners becomes even more crucial.  While there have been many turns of phrase for these medical professionals, the term “mid-level practitioner” is meant to encompass those non-physician providers, which include advanced practice nurses and physician assistants, among others. In Kentucky, there has been a shortage of primary care providers, which is particularly problematic in the state’s many rural areas.  This in turn has led to the push for more autonomy to these integral medical providers. While there are many reasons why this development is an improvement for patients and providers alike, this also leads to more liability exposure.  More >

Pre-Trial Challenges to Experts in Professional Liability Cases: Sometimes the Best Strategy is Not to Play

We’ve all been there. An opposing expert lacks the proper credentials, utilized shoddy techniques in forming the opinion and/or provides irrelevant opinion testimony and you feel compelled to file a Daubert challenge.  After all, Plaintiff’s case will fall apart if you are successful in excluding the expert.  More >

Kentucky Supreme Court Addresses Negligent Credentialing

2017 has been a banner year for developments in healthcare litigation in Kentucky. While the focus has largely been on medical review panels, another issue of importance has been that of negligent credentialing claims brought against hospitals. Nationwide, states have been split on whether this cause of action is recognized. Lost in the recent rulings regarding medical review panels was the Kentucky Supreme Court’s quiet release of its opinion on November 2, 2017 striking down negligent credentialing as a separate and new cause of action against hospitals. This opinion provides clarity for hospitals facing claims of negligence related to physicians with staff privileges at their facilities and also provides guidance for counsel to properly defend cases with credentialing allegations. More >

A PSA Regarding the PSA: Patient Safety Work Product and Privilege

Much has been made of the efforts to increase the quality of patient safety and healthcare in recent years.  To further this goal, Congress passed the Patient Safety and Quality Improvement Act of 2005 (“PSA”), which provides the protection of privilege to documents created as part of patient safety efforts in patient safety organizations. These organizations are defined as private, certified organizations that operate within larger healthcare organizations to improve care and reduce medical errors. The purpose behind this protection is to encourage healthcare providers to share information enabling evaluation of healthcare treatment, including failures, to improve patient safety and quality of care without fear of liability.  More >

EHR-Related Claims on the Rise for Healthcare Providers

Since the federal mandate requiring healthcare providers to implement electronic health records went into effect, medical malpractice claims involving their use are on the rise. These claims involve allegations that use of electronic health records (“EHR”) is contributing to patient injury.  Earlier this week, The Doctor’s Company (“TDC”) released a study examining factors surrounding the rise of these claims. More >

How to Minimize Professional Liability Risk: Five Practical Steps

One of the biggest challenges professionals face is when their very livelihood is threatened by litigation alleging professional malpractice.  Although the risk of litigation is inherent to many professions, there are a variety of strategies which, if implemented appropriately, can help mitigate that risk.

Fortunately, many of these practical steps can be taken by professionals at the outset of a project to prevent problems from arising at a later date. While the following tactics won’t prevent every potential problem, their utilization can reduce the risk of finding yourself – and your career – in a compromising position. More >