Why are some lawsuits filed in state court and other lawsuits filed in federal court?

There are countless reasons why some lawsuits are filed in state court and others in federal court.  For example, the state and federal courts have different rules regarding discovery and evidence, and in certain instances the evidence needed to prevail on a claim can be different.  Additionally, in some jurisdictions, cases move faster through one federal court than state court, or vice versa.

Read on for practical tips for attorneys.

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Welcome to Kyle Vaughn!

In the next couple weeks, Kyle Vaughn will begin posting as a coauthor to the KTLB.  Welcome to Kyle!

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Is the Kentucky Consumer Protection Act applicable to medical negligence cases?

As discussed more in more general terms in last week’s post, the Kentucky Consumer Protection Act (“KCPA”) provides a cause of action to an individual injured by the false or misleading conduct of another.  The KCPA, however, is usually not applicable to medical negligence claims.

Although the plain language of the KCPA indicates that it should apply to a purchase of medical services, case law has substantially limited the KCPA’s application to such a situation.  For the KCPA to apply, the allegations must be related in some way to the “business aspect of the practice of medicine.”  Barnett v. Mercy Health Partners-Lourdes, Inc., 233 S.W.3d 723, 730 (Ky. Ct. App. 2007).  The business aspect of medicine includes claims based on “advertising for a particular procedure or surgery then failing to advise the patient of the risks involved or of alternative treatment; entering into a financial agreement that would increase profits to the possible detriment of patients; or advertising services at a particular cost then charging at a different rate.”  Id.  Thus, absent an allegation related to the business aspect of medicine, the KCPA, and its potential for attorneys fees, does not apply to an ordinary medical negligence claim.

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What is the Kentucky Consumer Protection Act?

Under certain circumstances, the Kentucky Consumer Protection Act (“KCPA”) provides a cause of action to an individual injured by the false or misleading conduct of another.  This statutory cause of action can complement many common law causes of action like negligence and breach of contract.  The law surrounding the KCPA is very complex, however, and its applicability varies greatly depending on the specific factual circumstances of every case.

Additional information for lawyers after the break.

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Unique medical negligence claims related to infants

Recently, courts in other states have begun to recognize two unique causes of action.  The first is often referred to as “wrongful conception”, and it arises when a physician is negligent in sterilizing an individual and that individual subsequently becomes a parent.  Recovery under this cause of action is extremely limited in Kentucky.  The second is often referred to as “wrongful birth”, and it arises when a physician either failed to inform the mother that her child had a deformity in time for her to get an abortion, or failed to inform the mother that she was pregnant in time for her to get an abortion.  This cause of action is simply not recognized in Kentucky. 

In Schork v. Huber, the Kentucky Supreme Court considered a wrongful conception claim on behalf of a mother who gave birth after undergoing a sterilization procedure.  648 S.W.2d 861, 862 (Ky. 1983).  The court recognized the claim but limited the mother’s recovery to medical expenses, pain and suffering, and lost earnings related to the birth.  See id. at 863.  Notably, the court refused to allow the plaintiff to recover damages for the costs of raising the child.  Id.  In a compelling dissent, Justice Liebson argued that such damages should be available because the claim is based in negligence and the costs of raising a child are foreseeable damages.  Id. at 866 (Liebson, J., dissenting).

In Grubbs v. Barbourville Family Health Center, the Kentucky Supreme Court considered a wrongful birth claim (along with a wrongful life claim, which is a similar claim brought by the child).  120 S.W.3d 682, 684 (Ky. 2003).  The court rejected these claims, holding that “the loss of an abortion opportunity resulting in a genetically or congenitally impaired human life” did not constitute a legally compensable injury.  Id. at 689.  Notably, the court did recognize a potential claim for breach of contract based on the physician’s contractual duty to report accurate results to the patient.  Id. at 691.

In sum, recovery under Kentucky law for wrongful conception or wrongful birth is extremely limited.

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Are medical peer review reports discoverable?

When patients encounter unexpected consequences, hospitals frequently initiate a peer review process to determine whether any malpractice was involved.  Although a Kentucky law seemingly indicates that the results of these peer review are privileged and not available to the person who was injured, Kentucky courts have consistently held that the results can be discovered in litigation.

A detailed discussion of why these reports are discoverable after the break.

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What is a “Good Samaritan” law?

The Kentucky legislature enacted a law that limits the liability of physicians, nurses, and certain other individuals who administer emergency care or treatment at the scene of an emergency.  This law is commonly known as a “Good Samaritan” law.  Notably, the law only raises the level of misconduct necessary to recover against the categories of individuals mentioned in the law – it does not prevent an injured party from recovering in such situations.  Moreover, the statute only applies to the categories of individuals specifically mentioned in the law, so it does not apply to everyone who administers emergency care.

Kentucky case law interpreting the Good Samaritan statute is extremely limited.  Guidance regarding the law is therefore limited to the language of the statute, which can be found at KRS 411.148.  While the statute itself is nuanced and should be reviewed thoroughly if it may apply to your factual scenario, one point is especially worthy of mention.  By the statute’s express terms, it only applies to treatment provided “at the scene of an emergency outside of a hospital, doctor’s office, or other place having proper medical equipment”.  KRS 411.148 (emphasis added).  Given the general lack of guidance from the courts regarding this statute, it is wise to review decisions from other jurisdictions if it is unclear whether the statute applies to a specific situation.

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What is informed consent?

A patient only gives informed consent when a health care provider provides that patient with sufficient information to make an informed decision regarding whether to have a certain medical procedure.  A patient, however, cannot sue a health care provider solely because the health care provider did not give the patient sufficient information.  Rather, the patient must prove that the health care provider negligently failed to inform the patient of the risks involved in the procedure and that the patient would not have undergone the procedure had he or she been informed of the risks.

Read on for additional advice for attorneys.

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What is the Emergency Medical Treatment and Active Labor Act?

The Emergency Medical Treatment and Active Labor Act (“EMTALA”) is a federal law that requires hospitals and emergency room physicians to screen new patients for “emergency medical conditions”.  Under certain circumstances, EMTALA also prohibits hospitals and emergency room physicians from refusing to care for patients under certain situations. Read on for a detailed discussion of EMTALA.

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What causes of action do I have when someone intentionally destroys my property?

Trespass to chattels and conversion are both intentional torts that involve the impairment in value of personal property.  Conversion simply involves a more serious impairment in value, and therefore the plaintiff in a conversion action can recover the full fair market value of the property at the time the conversion occurs.  Batson v. Clark, 980 S.W.2d 566 (Ky. Ct. App. 1998).  Put in simpler terms, conversion is available when property is seriously damaged or destroyed, while trespass to chattels is available for minor damage to property.

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