Is Medical Malpractice on the Kentucky Legislature’s table?

  In 2004, insurance companies pushed to  cap  medical malpractice awards.  Kentucky was one of few states to resist.  

  Injured people framed  public opinion, lobbied and had massive rallies.   Kentucky withstood a national tidal wave.  

  In order to cap jury awards, Kentucky would have to amend its constitution.

  An amendment passed the Kentucky Senate in 2004.  It died in the House of Representatives.

  Dr. Ernie Fletcher was elected on a tort reform platform. The defeat started a string for the now-former Governor.  

  No one seems worried about malpractice caps in 2008. 

  But I hear the whispers.  

  Reform tied to casino gambling was mentioned on Comment on Kentucky.

  Panelists dismissed the idea.   Many representatives for injured people do too. Some get angry.  They believe that staying quiet will make malpractice threat go away.

  Some lawmakers fret about the “silence is golden” strategy.   They hear the same whispers I am hearing.

  A “perfect storm” could be brewing.

 
In recent years, insurance companies made huge profits.  They won’t this year.  Insurers lost billions investing in sub prime mortgages.  Their stocks have tanked.   

  When insurance companies lose on investments, they recover by limiting claims.

  The fastest way to limit claims is yell “insurance crisis” and  demand  a government bailout.   The strategy has worked since Vice President Dan Quayle led the national crusade in 1991.

  If you don’t see an “insurance crisis” this year, you will see one next year. 

  Dr. Daniel Mongardo led the previous crusade against malpractice caps.   He is a surgeon and was head of an Eastern Kentucky hospital.   His brother died as the result of medical negligence and Mongardo commitment was extremely personal.

  Mongardo is now Lt. Governor Mongardo.   Although he is a heartbeat from being Governor, he doesn’t have a vote in the Kentucky Senate.  That vote belongs to Republican Brandon Smith.

  Smith will vote for capping  malpractice. Another cap vote could be Democrat Tim Shaughnessy who voted  yes in 2004. 

  Shaughnessy is vice president for a hospital chain, and facing a well known Republican for re-election. 

  You can almost  count on an amendment passing the Senate.   

  The 2004 legislation died in the House of Representatives Judiciary committee.  Gross Lindsey of Henderson chaired the committee but in 2006, he lost his legislative seat to Dr. David Watkins. 

  The Judiciary Committee is now chaired by Kathy Stein, a strong willed consumer advocate and champion for victim’s rights.   

  In a normal year, Representative Stein’s opposition would kill the legislation.  Even if an amendment made it to the full house, in a normal year, the Democrats would stop it.  

  2008 is not a normal year. 

  The legislature is considering a constitutional amendment that would allow casino gambling.   The Governor’s political  fate  rests on it.

  Al Cross noted in a Courier Journal column that “Beshear has to make it clear that the (casino) package is his sole priority, and that their (the legislators) relationship with him depends on it.”

  Pro-casino advocates have pitched the idea of “putting the amendment on the ballot and let the people decide.”

  The same pitch malpractice cap supporters are making.

  State Senate President David Williams is opposed to casinos but strongly favors capping injury awards.   Like him or hate him, he is a master of getting his way.

  He may “compromise” and let voters decide on both issues.   That would be a political brilliant move and start a fundraising bonanza for the Republicans.

  Quayle and his allies discovered that  fighting to cap medical malpractice awards brings in big Republican money.  Insurance carriers and the medical establishment are well funded.  

  Medical malpractice money would help Republicans in several contested state Senate races.  Other Republicans  would benefit in an open Congressional seat in Western Kentucky, along with John McCain’s presidential run  and  Mitch McConnell’s bid for re-election.

  It would give the Republicans millions in new donations, in the name of “letting the people decide on both issues.”

  If they whispers start getting louder, injury advocates can reunite  the coalitions that worked in 2004, or they can have “swat team” ready to react to a last minute deal.  The other option is hoping it might blow over..

  The decision makers for the victims   need to heed the whispers as warning.

  ometimes whispers are idle speculation but sometimes they are not.

 
Don McNay  is the author of Son of a Son of a Gambler:  Winners, Losers and What to Do When Win the Lottery and previously  wrote The Unbridled World of Ernie Fletcher.  He is the founder of McNay Settlement Group in Richmond Ky. You can write to him at This e-mail address is being protected from spam bots, you need JavaScript enabled to view it or read what he has written at www.donmcnay.com