Reforms in Kentucky have been attempted many times, but without much success. Though the Bluegrass State managed to pass the Kentucky Medical Malpractice Act of 1976 in response to the medical malpractice crisis of the 1970s, most of its provisions were quickly ruled unconstitutional by the Kentucky Supreme Court. These provisions included a cap on noneconomic damages, creation of a patient compensation fund, a requirement that physicians carry insurance and creation of a joint underwriting association for physicians who had difficulty in obtaining policies at reasonable rates.
Unfortunately, the law ran up against the Kentucky Constitution, which has an â€śopen courtsâ€ť provision. According to Section 14 of the Kentucky Constitution, â€śAll 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 debate.â€ť It further prohibits the legislature from limiting the amount to be recovered for injuries resulting in death, or for injuries to a person or property and to provide that â€ś[w]henever the death of a person shall result from an injury inflicted by negligence or wrongful act, then, in every such case, damages may be recovered for such death, from the corporations and persons so causing the same.â€ť In Section 54, the wording is even blunter, declaring â€śthe General Assembly shall have no power to limit the amount to be recovered for injuries resulting in death, or for injuries to person or property.â€ť These â€śopen courtâ€ť provisions clearly prohibit the General Assembly from creating a cap on noneconomic or punitive damages. Additionally, the creation of a joint underwriting association and requirement for physicians to carry insurance were ruled unconstitutional,Â as an unjustified exercise of the stateâ€™s police power to mandate the purchase of medical malpractice insurance.
Since then, Kentucky has made a few more attempts at reform. In 1988, the Kentucky General Assembly passed House Bill 551, which was intended to modify Kentucky law with respect to punitive damages. Once again, this was found to violate Kentuckyâ€™s â€śopen courtsâ€ť provision. In 2006, conservative legislatures attempted an amendment to the Kentucky Constitution so that caps on noneconomic and punitive damages could be imposed. However, they were unsuccessful in getting the measure on a ballot for voter approval.
Smaller reforms are still being attempted in Kentucky. In January 2016, a bill was introduced by Kentucky State Senator Ralph Alvarado to create a medical review panel system for use in medical malpractice litigation. This legislation is currently in committee.