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Tort Reform Strikes Back: The Push for a Constitutional Amendment


On December 13, 2018, Senator Ralph Alvarado prefiled a bill for the Kentucky General Assembly’s 2019 regular session proposing to amend the Kentucky State Constitution to allow laws that limit tort damages. Section 54 of the Kentucky Constitution prohibits the Kentucky legislature from passing laws that restrict tort damages. Senator Alvarado’s proposed amendment, BR 478, would implement a 180-degree turn from Section 54’s language by granting the General Assembly the power to limit tort damages.

In 2017, Senator Alvarado sponsored Kentucky’s Medical Review Panel (MRP) Act which the Kentucky Supreme Court struck down as unconstitutional under Section 14 of the Kentucky Constitution. Section 14 reads, “All courts shall be open, and every person for an injury done him in his lands, goods, person or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.” In its decision, the Kentucky Supreme Court held that the MRP Act “takes away the ability of medical-malpractice claimants to seek immediate redress in the forum of the claimant’s choosing.”[i]

Although Senator Alvarado’s proposed amendment to Section 54 would not supersede the Kentucky Supreme Court’s ruling on the MRP Act, BR 478 is an attack on Kentucky’s “jural rights doctrine.” Under the jural rights doctrine, sections 7, 14, 54, and 241 of the Kentucky Constitution, “when read together, also establish ‘a limitation upon the power of the General Assembly to limit common law rights to recover for personal injury or death.’”[ii]

But, does Kentucky need a constitutional amendment to limit medical malpractice claims? Proponents argue that malpractice claims lead to higher insurance premiums for doctors, deterring them from practicing in Kentucky.

However, according to data published by the U.S. Chamber Institute for Legal Reform (ILR), U.S. tort costs – including settlements, verdicts, litigation, and administrative expenses – amount to $428 billion, or 2.3% of the national gross domestic product (GDP). However, nationwide medical malpractice costs only account for 4% of the nation’s tort costs, or 0.1% of the nation’s GDP.

In comparison, Kentucky’s tort costs align with that of the country at large. Tort costs in Kentucky amount to $4.5 billion or 2.3% of the state’s GDP. Medical malpractice cases account for only 5% of the state’s total tort costs, or 0.1% of the state’s GDP.

Consider Louisiana – a state that is comparable in population size to Kentucky. Under Louisiana law, medical malpractice claims must be reviewed by a panel of 3 health care providers and an attorney. Louisiana law also caps medical malpractice damages at $500,000. Yet despite these limitations, data from the ILR report indicates that tort costs in Louisiana amounted to $4,015 per household - $145 of which is attributed to medical malpractice claims.

In contrast, Kentucky does not run malpractice claims through medical review panels, nor does it impose a cap on damages. Yet Kentucky total tort costs per house hold was $2,608 with $130 attributed to medical malpractice.

Ultimately, medical malpractice costs simply don’t amount to a material cost justifying the kind of sweeping legislative reforms that advocates like Kentucky Senator Alvarado demand is necessary for a functional society.

Some who support tort reform even question the practicality of medical malpractice review panels. In an article published in the Insurance Journal, Professor Christopher Robinette at Widener University Commonwealth Law School wrote, “[tort] reform is necessary…When designing a reform, however, it should address the actual problems with the system. Medical malpractice review panels only exacerbate them.”

Empower Your Medical Malpractice Claim

Although the Kentucky Supreme Court’s ruling against the MRP Act effectively dismantled the medical review panel system for now, legislative efforts continue to push forward in an attempt to fix a problem that doesn’t exist. At the office of Brett H. Oppenheimer, PLLC, our legal team, led by Louisville medical malpractice attorney Brett Oppenheimer, will continue monitoring developments on this issue. We are dedicated to preserving your right to seek recompense for the careless and reckless acts of medical providers who caused your injury.

For more information, call us at (502) 242-8877 today to arrange a FREE case evaluation with Attorney Oppenheimer.

[i] Commonwealth v. Claycomb, Nos. 2017-SC-000614-TG, 2017-SC-000615-TG, 2018 Ky. LEXIS 504, at *21 (Nov. 15, 2018)

[ii] See generally Williams v. Wilson, 972 S.W.d2d 260, 265-68 (Ky. 1998) (discussing Kentucky’s jural rights doctrine).

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