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Judicial malpractice threatens treatment for elderly

By Bobby E. Reynolds

Elderly Kentuckians may face diminished care if judicial tactics being applied in Arizona are adopted in Kentucky.

The Arizona Supreme Court recently ruled that the austere penalties of the Copper State’s elder-abuse law apply to physicians involved in ordinary malpractice claims. The court’s ruling is the first of its kind.

Standard medical malpractice cases usually involve doctors being accused of negligence like leaving a sponge in a patient following surgery or issuing the wrong prescription. However, in McGill v. Albrecht, a physician was sued for not ordering a routine test for an elderly, incapacitated patient.

The defendant, who had been the patient’s doctor for more than two years, performed two physical examinations but failed to order a standard annual mammogram for the woman. She subsequently died of cardiac arrest due to a condition that apparently resulted from breast cancer.

The woman’s estate sued, claiming her death was related to the treatment of the cancer that spread as a result of the doctor’s failure to order a mammogram. But the estate also extended its accusations a step beyond most malpractice cases by accusing the physician of violating Arizona’s elder-abuse statute.

Arizona’s highest court ruled the doctor is liable under the elder-abuse decree, the penalties for which are much more severe than those in traditional medical malpractice cases.

The ruling has serious legal ramifications that heighten the need for medical malpractice reform in Kentucky. Policymakers should act during the 2006 legislative session of the Kentucky General Assembly to protect doctors who, under the type of statute upheld by the Arizona Supreme Court, could face criminal charges for a single act of alleged malpractice.

Dire economic consequences could result from a failure to stymie the nationwide threat resulting from judicial activism displayed by Arizona’s justices. Their ruling would cause medical malpractice insurance premiums to rise even higher in Kentucky as providers recognized the need to account for future claims as a result of the potential penalties included in elder-abuse statutes.

High premiums already have a severe economic impact on industries that serve the elderly.

Several nursing home chains, including Extendicare and Health Ventures, have been forced to sell facilities in Florida and Arkansas because of an inability to obtain liability coverage. Six of the nation’s largest nursing home companies have filed for bankruptcy in the past two years largely as a result of uncontrolled costs related to medical liability premiums and tort-related expenses.

A lack of meaningful reform has already caused ob-gyns to stop delivering babies in several Kentucky counties. Now, the elder-abuse locomotive careening down the track from Arizona could threaten the treatment of another vulnerable population – elderly patients who receive a great amount of their care from nursing homes.

For years, trial lawyers have succeeded in keeping any meaningful reform from being approved by Kentucky legislators. Meanwhile, like a festering wound, the commonwealth’s medical liability system has become a cottage industry that generates millions of dollars for plaintiffs’ attorneys at the expense of Kentucky physicians and their patients.

Kentucky businesses and physicians are already reeling from a lack of substantive malpractice reform. The state Office of Insurance recorded nearly $193 million in payouts for medical liability cases between 1998 and 2003. The average contingency fee of 33 percent would mean plaintiffs’ attorneys alone pocketed nearly $64 million of medical liability payouts during this time period.

Applying elder-abuse penalties in traditional malpractice cases creates additional penalties for physicians and offers trial lawyers another yet legal pot of gold to chase. It would lower the standards required for big payoffs by allowing punitive damages to be awarded without the “clear and convincing proof of evil” required in traditional cases. It also stretches the two-year statute of limitations applied in normal malpractice cases to seven years.

Kentucky policymakers should begin to work in earnest toward both providing protection against the abuse of elder-abuse statutes and creating a more productive environment in which physicians can practice.

If, in their diagnosis and treatment, doctors must look first over their shoulders at the potential of being crushed by a frivolous and unjust lawsuit, they will soon lose interest in their patients. Doctors should be fighting illnesses, not lawsuits.

While state politicians sit idly by, President Bush and congressional leaders are working to enact malpractice reform at the federal level. However, the most effective policies should emerge at the state level where lawmakers are in a better position to assess local problems.

The commonwealth’s policymakers must act. To look the other way only diminishes further attempts to attract and keep the physicians that Kentucky desperately needs.

– Bobby E. Reynolds is an attorney engaged in the private practice of law. He offers legal, economic and public-policy analysis from a free-market perspective for the Bluegrass Institute.

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