Statute of Limitations in Kentucky Medical Malpractice Cases
Acting quickly is imperative as medical malpractice cases in Kentucky — for injury or death –must be filed within one year of when the injury was discovered or reasonably should have been discovered.
Notice and Expert Requirements
A medical malpractice case in Kentucky commences after filing your lawsuit in the appropriate court. Unlike Tennessee and some other states, Kentucky does not have any pre-suit notice requirements in medical malpractice cases. There is no need to notify a potential defendant of your intent to sue, and there is no requirement for a pre-suit affidavit of merit signed by an expert witness.
Expert witness testimony is generally required to prove your case, unless the facts themselves establish a prima facie case of negligence. A prima facie case is one in which the injury could not have occurred absent negligence. For example, a foreign object left inside your body that causes an infection would be a prima facie case of medical malpractice. An expert is not needed in such cases because (1) leaving a sponge in a body is negligent conduct, and 2) but for the presence of the foreign body, you would not have been injured. This is a very plaintiff-friendly facet of Kentucky medical malpractice law, because it allows plaintiffs to avoid the cost of medical expert witnesses in prima facie cases.
Damage Caps and Fault
One section of the Kentucky Constitution that has had a substantial impact on the law-making process is Section 54, which prohibits the General Assembly from limiting the amount a person may recover for personal injury, damage to property, or death. Although there is no extensive discussion of this provision in the Debates of the 1890-1891 Constitutional Convention, the delegates who delivered the report containing them explained that: The Legislature has,perhaps, in some cases, put a limit on the amount to be recovered for damages by railroad accidents to persons resulting in death or injury to person or property. This section forbids the General Assembly from putting any limit upon the amount of damages to be recovered, leaving it to the jury.
Some claim the lack of damages cap in medical malpractice actions in Kentucky has hurt the healthcare industry, but repeated studies have not shown this to be the case.
Kentucky utilizes a pure comparative fault system in medical malpractice actions, meaning that a percentage of fault can be assigned to each party to the case, and any verdict is apportioned accordingly. For example, if both you and the opposite party in an accident are partially responsible for causing the accident, then fault will be distributed between the both of you on a percentage basis. Since Kentucky is a pure comparative negligence state, any fault attributed to the plaintiff simply reduces the plaintiff’s award by an amount equal to the plaintiff’s share of the blame. For example, in a medical malpractice case where the patient is awarded $100,000 in total damages, but is also found to be 35 percent at fault (perhaps if he/she had ignored the doctor’s after-care instructions), then the patient would receive $65,000 (which is the original$100,000 award reduced by 35 percent).
Based in Louisville, Kentucky, the Shelton Law Group practices Kentucky medical malpractice law. We will finance your legal battle. You only pay if you win. That’s because we work on a contingency fee basis. We believe this is the fairest approach.Why should you pay for something that doesn’t benefit you? Put your trust in a Louisville, Kentucky based medical malpractice firm which puts people in Kentucky first.Contact the Shelton Law Group today. Call 1-888-761-7204 and schedule a free consultation. We give your case the attention it deserves. The Shelton Law Group – we take your case personally.