Articles Posted in Kentucky

Darvocet lawyers have filed a motion to have all Darvocet lawsuits filed under one federal judge. This is called an MDL, where the case becomes a sort of class action lawsuit for the purposes of discovery.

The defendants in these cases opposed a class action, arguing that these lawsuits involve multiple individualized fact issues of causation and product identification which will require discovery unique to each lawsuit.


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In Wilson v. State Farm, a U.S. District Court in Kentucky found that an insurance carrier did not act in “bad faith” by delaying payment of the settlement in a car accident case pending plaintiff’s lawyer squaring away a Medicare lien.

state farm settlementIn Wilson, the plaintiff brought an uninsured motorist claim and the insured tendered the policy of $50,000. Plaintiff said, “Okay, we settled the case, pay me.” State Farm withheld payment, worried that it would be responsible for the Plaintiff’s Medicare lien. Plaintiffs’ lawyers deal with this issue every day.

Plaintiff’s lawyer understood State Farm’s position and tried to marry the two, demanding that State Farm put the settlement in an escrow account from which Medicare’s conditional payment amount would be payable. The plaintiff (and probably his lawyer, I don’t know) also promised to hold the insurer harmless regarding any potential claim asserted by Medicare.

Kentucky joins the “no texting while driving” fold. The law does not have a lot of teeth: if you are caught texting while driving you will only get a warning. Next year, Kentucky will up the ante to $25 for the first offense and $50 for subsequent offenses. Yes, it is weak. But it is a start. The most important thing about the texting law is not the enforcement but in getting the word out that texting and driving is a dangerous cocktail.

A Kentucky jury has ordered a doctor’s malpractice insurance company to pay $3.8 million for acting in bad faith by delaying payment on a claim it knew its client was liable for, the Louisville Courier-Journal reports. The insurance company initially offered the Plaintiff $75,000 to settle her case despite the fact that the malpractice insurance company estimated the case to be worth $1 million. Typical stuff that does not surprise any malpractice lawyers. Plaintiff was left permanently disabled after her doctor botched a cosmetic procedure the doctor suggested the Plaintiff had while she underwent a hysterectomy.

A Kentucky jury awarded $3 million to a woman in a medical malpractice case against a doctor who it found improperly attaching a hose that helps pump blood and oxygen during relatively routine heart surgery. A hospital co-defendant had already settled with the Plaintiff.

The total verdict was $9,864,175.78, but the jury found the doctor to 31% responsible.

Medical malpractice lawyers filed an informed consent lawsuit last week accusing a doctor of amputating a man’s penis without his consent. In the lawsuit, a Kentucky man alleges that the doctor was only authorized to perform a circumcision. What happened—right or wrong – was the doctor did what he thought he should, to save the patient’s life when he found cancer during the operation.

I won’t prejudge this lawsuit without hearing the evidence. I can certainly imagine a scenario where a doctor finds cancer during a routine operation and does what the doctor believes he must do to save the patient. The Plaintiff affirmed the doctor’s prerogative in this regard by signing a consent form acknowledging that unforeseen conditions discovered during the circumcision “may necessitate additional or different procedures.” But I would reserve judgment on the merits of the case because it really depends on whether reasonable minds could differ as to what was the appropriate course.

But I find disturbing that the lawsuit seeks punitive damages. Unless facts in the case exist that were not included in the Courier-Journal article I read, there is no malice or even recklessness in a doctor – right or wrong – deciding to save a patient’s life.

Garrard County, Kentucky Judge Janet Booth sentenced a woman to jail for three days for wearing short shorts to court, according to the Herald Leader in Kentucky. Apparently, this was the woman’s third court appearance, and she had been warned on two previous occasions.

Regardless of your view on whether this was appropriate (personally, I think we have more pressing problems with our criminal justice system and its defendants); I think it is reasonable to say three days is way over the top. The defendant had to be transported to the Boyle County jail because the Lincoln County jail, which normally holds prisoners in Garrard County, had no room for her. Taxpayers should question whether it was worth spending so much money and effort over a point that could have been made—if it even needed to be made—in a half-hour.

The Missouri Supreme Court ruled in Sides v. St. Anthony’s Medical Center, that plaintiffs in a medical malpractice cases in Missouri may rely on an expert’s opinion that the injury would not have happened in the absence of the defendants’ negligence even without a specific proof of a negligent act. The court adopted the Restatement of Torts rule that if a medical malpractice plaintiff cannot demonstrate which specific act of negligence caused the injury but can demonstrate the potential causes are within the control of the doctor, and the injury would not occur in the absence of negligence, then a medical malpractice plaintiff has jumped over the motion to dismiss/summary judgment hurdle.

The defendant’s medical malpractice lawyer argued that Hasemeier v. Smith, 361 S.W.2d 697 (Mo. banc 1962), an OB/GYN medical malpractice case, was controlling. In that case, the court found that generally res ipsa loquitur is not applicable in medical malpractice cases. The Missouri Supreme Court did not overrule Hasemeier but it may as well have.

The Missouri high court’s ruling, in this case, is consistent with common sense and, as the court noted, the trend in many other states including Kentucky, Nebraska, and New York.

Karla Ward of the Kentucky Herald Leader reports that the Kentucky Medical Association has tort reform on the agenda for this legislative session. Specifically, doctors say they want a constitutional amendment that would eliminate frivolous medical malpractice lawsuits.

The article does not articulate specifics. But is hard to imagine any scenario where this will happen. The national trend is to acknowledge the “medical malpractice crisis” was hardly a crisis at all but rather at a high point in the highs and lows of medical malpractice claims.

The article also mentions a study that was done showing a shortage of doctors in Kentucky. I have not read this study but it seems like a dozen or so get released every year coincidentally just before the state legislative session. Unless a study is done by a truly independent party, it is difficult to lend it much credibility.

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