2022 Q3 State Updates: Iowa and Kentucky

update #2

Iowa House Advances Bill with Hard Noneconomic Damage Cap

The Labor Committee of the Iowa House of Representatives advanced legislation recently intended to combat the state’s worker shortage by reforming unemployment and tort laws. The bill is divided into two sections: one relates to unemployment insurance and the other would create a $1 million hard cap for noneconomic damages in medical liability and commercial motor vehicle claims. Gov. Kim Reynolds listed medical malpractice reform as a priority in her Condition of the State address back in January.

Iowa already caps noneconomic damages at $250,000 for most medical malpractice cases. There is an exception for those involving permanent impairment, disfigurement or death, for which there is currently no cap. House Study Bill 631 would cap damages in those cases at $1 million.

The proposed bill also establishes that the definition of noneconomic damages does not include the loss of dependent care due to the death of — or severe injury to — a spouse or parent who is the primary caregiver of a child or disabled adult. Instead, that loss is to be considered an economic damage not applicable to the damage cap.

The proposed legislation comes five years after Iowa instituted a package of medical liability tort reforms that caps most noneconomic damages at $250,000, requires a certificate of merit from an appropriate expert detailing how the standard of care was deviated from, defines who can be considered an expert witness in medical liability lawsuits and includes provisions governing physician-patient communications after an adverse medical event occurs.

The hard cap on noneconomic damages will take effect July 1, if passed.

Kentucky Legislators Want to Amend Constitution for Damage Cap

Kentucky lawmakers introduced legislation in Q1 to start the process of amending Section 54 of the commonwealth’s Constitution in order to give the General Assembly authority to limit non-economic damages for personal injury lawsuits and provide statutes of limitation.

State Sen. Ralph Alvarado and Rep. Josh Bray introduced Senate Bill 142 and House Bill 455, respectively. Both bills propose amending the Kentucky Constitution so that the state legislature has authority to set caps on recoverable noneconomic damages in civil lawsuits. Section 54 of the Kentucky Constitution currently dictates that the “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.”

To amend the Kentucky Constitution, Alvarado and Bray’s proposal will require approval by three-fifths of all the members elected to each house of the Kentucky General Assembly before it is submitted to voters for ratification at the commonwealth’s next general election.

“My pitch to voters is, ‘Do you want another personal injury lawyer in your community? Or do you want another doctor? Another nurse? Another business offering jobs?’,” Sen. Alvarado said in an exclusive interview with Medical Liability Monitor. “The average Kentuckian is starting to realize how difficult it is to find medical professionals. And when across the border in Indiana, Ohio or Tennessee there is a better legal climate, doctors receive solicitations all the time to move to another state.”

Alvarado has filed similar bills in the Senate during past sessions of the General Assembly, but this will be the first time in several years the House of Representatives considers this type of legislation.

“The fact that we have new members in the House now taking up the banner on this, it helps me,” Alvarado said. “I’ve been the champion for [medical liability reform] in the Senate for several years. I’ve become vilified by some attorney groups because they get upset about it, but I’m encouraged to see that there’s several House members that have co-sponsored the legislation.”

Kentucky hasn’t passed any medical liability tort reforms since the Medical Review Panel Act of 2017, which was struck down as unconstitutional the following year. The Kentucky Supreme Court determined the medical review panel requirement violated Section 14 of the commonwealth’s constitution, which asserts that “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.”

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