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The below was for the 2005 legislative session but we are going to leave it on this
page for the simple reason that this bill is an annual threat to the medically injured/abused of Kentucky.
Kentucky continues to Haunt Victims of Medical Malpractice and Protect Doctors and
Medical Facilities While Florida Protects Their Citizens
Senate President David Williams and several other Senators have introduced the
annual bill that terrorizes those victims of medical malpractice once again.
The complete list of the sponsors are:
David Williams, Vernie McGaha, Richard “Dick” Roeding , Katie Stine
Gary Tapp, Damon Thayer, Elizabeth Tori, Jack Westwood
While we generally agree with these sponsors we cannot this time around.We feel that the Bill of
Rights are ’special’ Not just another section of the Constitution to be changed at will. We feel that Section
26 distinguishes this as fact!
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Kentucky Constitution
Section 26 General powers subordinate to Bill of Rights -- Laws contrary thereto
are void.
To guard
against transgression of the high powers which we have delegated, We Declare that every thing in this Bill of Rights is excepted
out of the general powers of government, and shall forever remain inviolate; and all laws contrary thereto, or contrary to
this Constitution, shall be void. |
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A part of this bill reads in part:
(2) Any section of this Constitution to the contrary notwithstanding, in
civil actions where the act or omission of a health care provider has been alleged to have resulted in death or injury to
any natural person, through the provision of health care services, the General Assembly may by general law:
In other words these sponsors wish to remove two (2) parts of your Kentucky Bill of
Rights. We have a problem with this. Once we begin wholesale changing of our Bill of Rights we may as well do away with it
in its entirety as it will not be the same document in a few short years anyways.
The sections these Senators wish to remove from your rights are:
Section 14 Right of judicial remedy for injury -- Speedy trial.
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.
We say two parts of the Bill of Rights because by passing this bill they will in effect
also change Section 7.
Section 7 Right of trial by jury.
The ancient mode of trial by jury shall be held sacred, and the right thereof remain inviolate, subject
to such modifications as may be authorized by this Constitution.
We say “in effect” because of the following section of the bill:
Require any party bringing a civil action subject to this section to submit the claim of that action to a
system of alternative dispute resolution before seeking redress in any other forum or exercising his or her right to a jury
trial; and
This section will prohibit your rights to the courts and trial by jury by forcing you to a ‘dispute
resolution board’ no doubt that will be made up of medical people. This we do not know for sure as the bill doesn’t
give the make up of this wonderful board of the ‘all knowing’.
Another and perhaps bigger concern is what Section 26 of our Kentucky Bill of Rights says:
Section 26 General powers subordinate to Bill of Rights -- Laws contrary thereto are void.
To guard against transgression of the high powers which we have delegated, We Declare that every thing in
this Bill of Rights is excepted out of the general powers of government, and shall forever remain inviolate; and all laws
contrary thereto, or contrary to this Constitution, shall be void.
We have problems changing our Bill of Rights not only for the reasons stated above but because both Sections 7
and 26 say that these rights granted are “inviolate” or in other words as we have
said in the past, these first 26 Sections are not to be messed with. Leave them alone. As a matter of fact
we have gone so far as to check with attorneys and a retired former Judge to see if our thoughts are correct. They are correct.
It may take legal action to prove it but they feel we are correct.
Setting the above aside and looking at what this bill does is enough reason not to pass this into law.
This bill will make victims of the victims of medical malpractice and incompetence.
Let us say that you were to go to the hospital to have your left leg removed due to diabetes. The doctor
removed your right leg instead.
Should you be limited on going after this doctor? Should this incompetent doctor be allowed to hide behind
the law under the guise of there being too many frivolous lawsuits filed? Not hardly!
We do not argue the fact that something needs to be done about frivolous suits.However, we feel there is
a much better solution since the facts say that less than 5% of the doctors are causes of over 90% of the malpractice suits.
We suggest that instead of the making victims of the already victim that we in Kentucky do as Florida has
done.
Not only did the Legislature pass legislation but it was a Constitutional matter therefore the people had
to vote on these measures.
Florida went after the doctors that cause these lawsuits in a couple of ways. After all, it isn’t the
patient that screws up the surgery it is the doctor.
Let’s examine what was done in Florida by the vote of the people.
Article X, Section 20
Summary:
Current law allows medical doctors who have committed repeated malpractice to be licensed to practice medicine
in Florida. This amendment prohibits medical doctors who have been found to have committed three or more incidents of medical
malpractice from being licensed to practice medicine in Florida.
BE IT ENACTED BY THE PEOPLE OF FLORIDA THAT:
a) Statement and Purpose:
Under current
law, a medical doctor who has repeatedly committed medical malpractice in Florida or while practicing in other states or countries
may obtain or continue to hold a professional license to practice medicine in Florida. The purpose of this amendment is to
prohibit such a doctor from obtaining or holding a license to practice medicine in Florida.
b) Amendment of Florida Constitution:
Art.
X, Fla. Const., is amended by inserting the following new section at the end thereof, to read:
"Section
20. Prohibition of Medical License After Repeated Medical Malpractice.
"a) No person
who has been found to have committed three or more incidents of medical malpractice shall be licensed or continue to be licensed
by the State of Florida to provide health care services as a medical doctor.
"b) For
purposes of this section, the following terms have the following meanings:
"i) The phrase "medical malpractice" means both the failure to practice medicine in Florida with that level of care, skill,
and treatment recognized in general law related to health care providers’ licensure, and any similar wrongful act, neglect,
or default in other states or countries which, if committed in Florida, would have been considered medical malpractice.
"ii) The phrase "found to have committed" means that the malpractice has been found in a final judgment of a court of law,
final administrative agency decision, or decision of binding arbitration."
c) Effective Date and Severability:
This amendment shall be effective on the date it is approved by the electorate.
If any portion of this measure is held invalid for any reason, the remaining portion of this measure, to the fullest extent
possible, shall be severed from the void portion and given the fullest possible force and application.
As noted by the final vote below this measure passed by a wide margin.
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Election Date: |
11/02/2004 |
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Votes For: |
5,121,841 |
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Votes Against: |
2,083,864 |
Not only did the people of Florida pass this piece of legislation but they went even further to protect themselves from
Medical Malpractice and higher insurance costs by passing “Article X, Section 22” by an even wider vote margin:
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Election Date: |
11/02/2004 |
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Votes For: |
5,849,125 |
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Votes Against: |
1,358,183 |
Article X, Section 22
Ballot Title:
Patients' Right to Know About Adverse Medical Incidents
Ballot Summary:
Current Florida law restricts information available to patients related to investigations of adverse medical incidents,
such as medical malpractice. This amendment would give patients the right to review, upon request, records of health care
facilities' or providers' adverse medical incidents, including those which could cause injury or death. Provides that patients'
identities should not be disclosed.
This legislation allows the patient to know if he or she is being operated on or seen by a doctor that has
a long record of Medical Malpractice suits.
I can’t imagine anyone having this information and discovering the doctor they are considering allowing
to perform a surgery, allowing a surgeon to operate, should it be found out that he is spending as much time in court trying
to prove he is qualified as he is spending practicing his medical profession.
This legislation is a big bonus for the patient. It doesn’t make a victim of the victim as the Kentucky
legislation would.
If our Kentucky Legislators want to stop the suits then it appears to us they would pass this same legislation
as a Constitutional Amendment and allow Kentuckians to know what their doctors record is.
This would certainly cut down on suits and our Legislators claim this is their intent, don’t
they?
The entire context of this Florida proposal is below.
Full Text:
BE IT ENACTED BY THE PEOPLE OF FLORIDA THAT:
1) Statement and Purpose:
The Legislature has enacted provisions relating to a patients’
bill of rights and responsibilities, including provisions relating to information about practitioners’ qualifications,
treatment and financial aspects of patient care. The Legislature has, however, restricted public access to information concerning
a particular health care provider’s or facility’s investigations, incidents or history of acts, neglects, or defaults
that have injured patients or had the potential to injure patients. This information may be important to a patient. The purpose
of this amendment is to create a constitutional right for a patient or potential patient to know and have access to records
of a health care facility’s or provider’s adverse medical incidents, including medical malpractice and other acts
which have caused or have the potential to cause injury or death. This right to know is to be balanced against an individual
patient’s rights to privacy and dignity, so that the information available relates to the practitioner or facility as
opposed to individuals who may have been or are patients.
2) Amendment of Florida Constitution:
Art.
X, Fla. Const., is amended by inserting the following new section at the end thereof, to read:
"Section
22. Patients’ Right to Know About Adverse Medical Incidents.
"(a) In addition
to any other similar rights provided herein or by general law, patients have a right to have access to any records made or
received in the course of business by a health care facility or provider relating to any adverse medical incident.
"(b) In providing such access, the identity of patients involved in the
incidents shall not be disclosed, and any privacy restrictions imposed by federal law shall be maintained.
"(c)
For purposes of this section, the following terms have the following meanings:
"(1)
The phrases "health care facility" and "health care provider" have the meaning given in general law related to a patient’s
rights and responsibilities.
"(2) The term "patient" means an individual who has sought,
is seeking, is undergoing, or has undergone care or treatment in a health care facility or by a health care provider.
"(3)
The phrase "adverse medical incident" means medical negligence, intentional misconduct, and any other act, neglect, or default
of a health care facility or health care provider that caused or could have caused injury to or death of a patient, including,
but not limited to, those incidents that are required by state or federal law to be reported to any governmental agency or
body, and incidents that are reported to or reviewed by any health care facility peer review, risk management, quality assurance,
credentials, or similar committee, or any representative of any such committees.
"(4)
The phrase "have access to any records" means, in addition to any other procedure for producing such records provided by general
law, making the records available for inspection and copying upon formal or informal request by the patient or a representative
of the patient, provided that current records which have been made publicly available by publication or on the Internet may
be "provided" by reference to the location at which the records are publicly available."
3) Effective Date and Severability:
This
amendment shall be effective on the date it is approved by the electorate. If any portion of this measure is held invalid
for any reason, the remaining portion of this measure, to the fullest extent possible, shall be severed from the void portion
and given the fullest possible force and application.
These two aforementioned pieces of legislation are now sections of the Florida Constitution.
We in Kentucky deserve no worse including our good doctors. They would have nothing to fear from these pieces
of legislation whereas those generally referred to as “crackpots” would no doubt be opposed to such legislation.
We all would benefit from the removal of bad doctors EXCEPT FOR THE LAWYERS!
These lawyers that chase ambulances are dealt with in another piece of legislation that needs to be proposed
in this legislature.
How do you take the “ambulance chasers” out of the picture? Limit their monies they are allowed to collect
for malpractice.
TRIAL LAWYER FEES LIMITS
Florida physicians filed this amendment because they are tired of seeing trial lawyers walk away with up to 40%
of medical liability awards. Juries thought this money was going to patients, not their lawyers. The amendment allows a trial
lawyer to be adequately compensated for taking cases, but ensures that most of the award goes to the injured patient.
Under the proposed amendment, patients will receive 70% of the first $250,000 awarded and 90% of the remainder
of the award, minus the costs of bringing the lawsuit.
Example: under the proposed amendment, trial attorneys will receive $150,000 of a million dollar settlement while
they currently reap $400,000.
Example: under the proposed amendment, the patient will receive $850,000 of a million dollar settlement (minus
costs), while they currently receive only $600,000.
Below is what the Florida Medical Association said about the attempt to stop the lawyers in their
causing costs to soar.
http://www.fmaonline.org/pubs/quarterly/jan05_feature4.asp
John Knight, FMA General Counsel
Amendment 3: "The Medical Liability Claimant's Compensation Amendment"
The voters of Florida sent a loud message to the Academy of Florida Trial Lawyers on Election Day - even $24
million spent on a campaign of deception did not prevent the passage of Amendment 3. The amendment passed by an overwhelming
63.5% of the vote. All of the false advertising by the Academy did not keep the voters from understanding the clear and simple
purpose of the amendment - to put more of the money awarded in a medical malpractice action in the hands of the injured patient
and less in the hands of the greedy trial lawyer. The voters sent a clear message to the Academy - "your campaign of deception
did not succeed in confusing the voters."
Even though the voters of Florida have sent a clear message to the Academy,
it is likely that the Academy will challenge the constitutionality of the amendment in federal court. The FMA is confident
that Amendment 3 will withstand any legal challenges. We are prepared to litigate the matter when and if the Trial Lawyers
challenge the amendment. This amendment is self-implementing, and became effective upon being certified by the Department
of State, which occurred on Nov. 14, 2004, and applies to contingency fee contracts entered into after that date.
Amendment
3 represents a long-overdue fundamental reform to the civil justice system. Attorneys' contingency fees in Florida are governed
by the Florida Supreme Court. No other profession-including physicians-has its income protected in this way. Since the Supreme
Court regulates the percentage of a recovery that an attorney can charge as a fee, even the Legislature does not have the
power to limit attorneys' contingency fees. Any attempt by the Legislature to address this issue would violate the principle
of separation of powers. As a result, the only way to accomplish the reform brought about by Amendment 3 was by amending the
Florida Constitution.
The passage of Amendment 3 with its contingency fee limitation will ensure that victims of medical
malpractice receive the compensation they deserve in cases where a physician has caused an injury. By limiting the compensation
potential for attorneys, this amendment removes the financial incentive to take on meritless litigation. The effect will be
to weed out non-meritorious claims, ultimately saving patients' access to quality health care. As the Bradenton Herald stated
in its editorial published on Oct. 27, 2004, "The basic purpose of this amendment is to ensure that legitimate victims wind
up with the bulk of the malpractice awards. If as a side effect it discourages frivolous malpractice suits by the fast-buck
lawyers, so much the better."
While this measure did not pass in Florida it is to be noted that the lawyers spent $24,000,000 to
defeat it!
Should we in Kentucky be fortunate enough to have this measure on the ballot you can bet the farm that the
lawyers would spend likewise here.
We all see the commercials on TV by lawyers ranging from prescription suits to pain suits.
Perhaps we need another Amendment on the ballot to keep these leeches from advertising their creations
of lawsuits.
Whatever the answer is we are sure that it isn’t the way Senator Williams desires every year.
It makes no sense to us that you punish the victim of medical malpractice instead of
the perpetrator of malpractice.
We at Take Back Kentucky urge the Legislature to pass legislation to protect its’
citizens against this abuse we call “medical malpractice” instead of punishing the victims of it by “capping”
what they may file suit for.
We urge either the defeat of Senate Bill 1 or changing it by limiting Lawyer fees and giving
them the ‘right to know’ their doctors record! Protect Kentuckians instead of making them victims again!
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