Infections During Childbirth

Even with the best prenatal care and the best doctors and nurses overseeing a pregnancy, it is still possible to contract an infection before, during or after delivery. Infections are insidious, and can strike without warning. Sometimes, they happen because of one mistake. It is always a good idea to make sure you know what is normal in these situations and what is not, so that you can react accordingly.


The most common infection found in women who have just given birth is called chorioamnionitis or intra-amniotic infection (IAI). IAI happens most often from irregularities in the genital tract, and it affects the amniotic fluid and placenta, as well as the chorion and amnion, which are membranes that surround the embryo as it develops. It occurs in roughly 5% of women at the time of delivery.

Symptoms include fever, a foul-smelling discharge, uterine tenderness, and, most severely, tachycardia (a faster-than-normal heart rate) in both mother and baby. Most often, it will occur if labor is very long; the longer the labor, the more chance there is of bacteria beginning to form in the urinary and genital tracts. This can happen spontaneously, but it is plausible that it could occur as a result of medical mistake – taking longer than one should, for example, to decide to attempt a cesarean delivery instead of a vaginal delivery.

Most of the time, IAI does not result in any long-term issues for mother or child; fertility is usually not compromised and the child will make a full recovery. In rare instances, however, children may develop neurological impairments or chronic physical issues (such as asthma or cerebral palsy).

Other Possible Infections

Another infection often seen at time of delivery is group B streptococcus (GBS). GBS is a bacteria that is actually found in about a quarter of all women, healthy and not. It can, however, cause serious problems, especially for newborns if passed from mother to baby during delivery.

GBS naturally occurs in some women, and if you test positive, it does not mean your child will automatically get sick. GBS most often becomes apparent after unusual labor – if your water breaks early (even if you do not deliver), or if you have a fever or UTI at the time of labor, the risk to pass GBS on to your baby is higher. While the risks to the mother are relatively mild, serious GBS can result in diseases like meningitis in babies, or even cause stillbirth.

GBS and other infections like it (such as endomyometritis, which is a type of sepsis usually seen after cesarean sections) can be difficult to tie to any medical negligence or mistake, because both of them have components that naturally occur within the body. It is easy for a defense attorney to claim that the bacteria in a woman’s body simply reacted to normal obstetric procedures, with no negligence occurring. Tests are performed to show the presence or absence of such bacteria, and it is important that you know the results, both for your own sake and possibly for your unborn child.

Get An Expert On Your Side

If you had an infection at delivery and it resulted in harm to you or your child, you may be entitled to compensation. The experienced birth injury attorneys at Meinhart, Smith & Manning, PLLC are well versed in this area of law, and have a long history of success. Contact our Louisville office today for a free consultation.

Posted in Personal Injury

Signs & Symptoms of Cerebral Palsy

When a child is born with a disease or condition, such as cerebral palsy, it can be difficult for parents. While a diagnosis of cerebral palsy will not change the love most parents have for their children, it is still entirely understandable to want answers, especially if the child’s injury might have been caused by someone’s negligence. Understanding the nature of what cerebral palsy is and its related symptoms may be a good first step to determining if it was caused by the negligence of a medical provider.

Symptoms & Causes of Cerebral Palsy

Cerebral palsy (CP) is a generic term for a set of nerve and muscle problems that occur in young children and do not improve with time. Some cases may also involve cognition issues and epilepsy, but this is not required for an accurate diagnosis. While causes and signs will vary, there is a core group of symptoms that generally appear in most cases. These symptoms include:

  • Impairment of muscle tone. This can result in spasticity (stiff muscles and exaggerated reflexes), or general rigidity. Generally, any abnormal posture can occur with CP.
  • Delays in reaching childhood milestones like standing, walking, and crawling.
  • Difficulty with tasks that involve using the mouth, such as sucking or eating.
  • Delays in speech and cognition.
  • Problems with fine motor skills, such as picking up a pencil.

Neurological issues that can crop up, but do not always, include seizures, intellectual disability, problems with vision or hearing, and unusual perceptions of pain (that is, feeling either too much or too little pain).

There are three main subgroups of CP that occur most commonly. The first, spastic CP, is by far the most common, accounting for approximately 80% of cases in the U.S. as of the most recent data available. Spastic CP results in difficulty moving around, holding and letting go of things, and may involve epilepsy or other types of seizures. The second is athetoid or dyskinetic CP, which is primarily characterized by cranial issues – drooling, difficulty swallowing, slurred speech and involuntary movements. The third, the most severe (but also the rarest), is ataxic CP, which appears more as neurological problems. Depth perception, tremors, and balance are most commonly affected by ataxic CP.

The exact cause of cerebral palsy is largely unknown. Research points to a genetic cause in a small percentage of cases, but most are believed to occur due to trauma to fine motor centers either in utero or during birth. Approximately 1 in 764,000 people in the United States have some form of CP, with almost 500,000 of that number under the age of 18.

Medical Malpractice and Cerebral Palsy

Sometimes Cerebral Palsy simply occurs, with no malpractice present. However, birth injuries do account for a significant percentage of cerebral palsy cases. Some of the most common reasons for a later diagnosis of cerebral palsy fall under the rubric of failure to diagnose, such as failure to discover a prolapsed umbilical cord, while others are characterized simply as medical mistakes.

Failure to diagnose is not always grounds for a medical malpractice lawsuit, but it can be if the underlying condition is one that any trained medical professional should be able to detect. Missing a diagnosis that would be elementary for most professionals goes toward an accusation of not meeting the prevailing standard of care – of failing to treat a patient as well as other medical professionals would.

Medical mistakes are a somewhat different picture. This category would include factors such as not ordering a timely cesarean section, if the child is in distress. Medical mistakes go toward imputing negligence to the attending physician or nurse (or midwife, in some states, though they are regulated differently than M.D.s), and proving negligence is a critical component in winning a medical malpractice suit.

Contact A Birth Injury Attorney

An injury to a child is always difficult to deal with, and if it was caused by another’s negligence, it can be even harder. The attorneys at Meinhart, Smith & Manning, PLLC have years of experience in these kinds of cases, and we work hard to get our clients their due compensation. Contact our Louisville office today for a free consultation.


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Posted in Personal Injury

What is a Shoulder Dystocia Injury?

When a child is being born via natural delivery, there are many ways that something could go wrong. One of the most difficult and frightening problems that a mother and baby can experience during labor is something called shoulder dystocia. While there is almost no way to predict it, it does happen with regularity in delivery rooms, and it can either wind up a minor inconvenience, or it can cause severe difficulties.

Medical Facts about Shoulder Dystocia Injuries

Shoulder dystocia occurs when a child’s shoulders become lodged or stuck at the entry to the birth canal during delivery. However, sometimes it is hard to pin down when shoulder dystocia is actually occurring. Is it only in cases of time delay? Or is it whenever a physician finds that the child cannot normally be delivered (that is, with only minimal downward pressure)? This is important because without a definition of the malady, it is hard to define a standard of care. If one court says that shoulder dystocia requires a time delay in delivery, this may alter a plaintiff’s chances for recovering compensation in a medical malpractice case.

The major maternal risk factors for shoulder dystocia are gestational diabetes, abnormal pelvic anatomy, and being short in stature. There is also some evidence that induced labor has a slightly higher rate of shoulder dystocia. General factors include a long labor and possible fetal macrosomia (in other words, a baby that is much larger than average for its stage of development).

Mitigation and Complications

If shoulder dystocia does occur during a standard vaginal delivery, questions arise regarding the obstetrician’s next move. There are several maneuvers that are considered standard procedure in these cases, and an obstetrician will have been trained in at least one or two of them.

The most common way to assist a child from the birth canal is via traction. However, if a mother or doctor is opposed to traction, the most accepted way to potentially dislodge a baby’s impacted shoulder is called the McRoberts maneuver. The maneuver consists of having the mother pull her legs up until they are resting on her abdomen. This will tilt the pelvis and, in many cases, actually help the impacted shoulder pull free. A study published in 1997 by Benjamin Gherman et al. states that the maneuver alone helped free infants approximately 42% of the time.

Even with the best intentions, however, maternal or fetal injury can result. By far the most common injury sustained to the baby is brachial plexus – that is, nerve damage to the spinal area. However, in extreme circumstances, lack of oxygen to the brain can result, likely due to the umbilical cord becoming trapped. This is dangerous ground for medical professionals; given the lack of clarity around shoulder dystocia and what exactly constitutes the standard of care, one wrong move can lead to ruin.

Know Your Legal Rights

If you and your child have been affected by shoulder dystocia, you may be able to obtain compensation for your pain and trouble. The injury attorneys at Meinhart, Smith & Manning, PLLC are well versed in this kind of law, and we will do our best to help you. Contact our Louisville office for a free consultation.


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Posted in Personal Injury

Family Tragedies: Wrongful Death of the Mother During Birth

The birth of a child is supposed to be one of the most wonderful moments in a family’s history. However, it can quickly turn into a nightmare if proper care is not exercised. If the unthinkable happens, and mother or baby loses their life, understanding the family’s rights can help the survivors obtain some measure of compensation for this horrible loss.

Maternal Death During Childbirth Statistics

The United States, despite its civilized status, has an alarmingly high death rate for mothers during childbirth. The rate is actually increasing, despite advances in science and neonatal care; according to the National Institute of Health, the rate in 1982 was 7.5 deaths per 100,000 births; in 2005, which is the most recent data available, it was 15.1 per 100,000. For African American women, the rate is even higher – 36.5 deaths per 100,000 births as of 2008. This is patently unacceptable. There is no indication that women of color suffer diseases like preeclampsia any more commonly than white women, yet they die significantly more often.

The even more unacceptable fact is that most of these deaths are likely preventable. American data as to causes of death is unreliable in the extreme, often not following up as to a possible cause of death if another event may have intervened. For example, if someone passes away at home after a cesarean section, the death may not be attributed to any pregnancy-related cause. Also, some of these deaths are attributable to malpractice, and are simply never reported because no case is brought.

Causes of Wrongful Maternal Death

Very often, when a woman dies in childbirth, her surviving family decides to bring suit against the doctor or hospital, alleging medical errors and/or wrongful death. Wrongful death occurs when someone loses their life due to the wanton, negligent or reckless acts of another, while medical malpractice is a cause of action brought when a health professional fails to treat a patient according to the prevailing standard of care.

The causes of maternal death in childbirth tend to mirror those worldwide – hemorrhaging (both antepartum and postpartum), preeclampsia and assorted disorders, and heart trouble. More specifically, placenta previa is the most common type of hemorrhaging that turns fatal for mothers. It is defined as an instance when the placenta abnormally implants and shifts so that it wholly or partially covers the opening in the mother’s cervix; it can lead to severe bleeding and may require a cesarean section to ensure safe delivery. It is important to note that the rate of all of these problems does increase in women of color, proportionately to the rise in overall maternal deaths, which suggests that the quality of care they receive may be subpar in some respects. And all of the problems listed previously can, in certain situations, be attributable to medical negligence.

A Wrongful Death Attorney Can Help

If you or a loved one has suffered a loss of this nature, the attorneys at Meinhart, Smith & Manning, PLLC can help. We have years of experience in matters of wrongful death and personal injury, and we will put it to work for you. Contact our Louisville office today for a free consultation.


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Posted in Personal Injury

One Wrong Move: Vacuum & Forceps Injuries At Birth

The delivery of a child is one of the most medically complex acts a doctor learns how to perform. Every second can matter, and every movement must be critically assessed. When deliveries need to be sped up, that action has traditionally been performed with forceps, though as medicine evolves, vacuum extractions have become more common. Nonetheless, both methods can lead to problems. It is important to know your rights if things take a turn for the worse.

Vacuum & Forceps: Uses & Risks

If a delivery progresses normally, in theory there will be no need for forceps or a vacuum extractor. However, there are reasons why a natural delivery would need to be sped up – namely, if the child is in respiratory distress, or if it is stuck in the birth canal. If this is the case, these tools are used to help the child free itself, though whether a doctor uses forceps or a vacuum extractor may simply boil down to personal preference.

Forceps are a tool used to help guide a baby’s head out of the birth canal. It is designed to fit around a baby’s head, though it is absolutely imperative that the doctor know how much force to use. Too much can cause facial nerve paralysis, and implies a breach of the standard of care. Babies delivered with forceps are also much more prone to spinal cord injuries, specifically in the high cervical vertebrae, which are directly below the skull.

Vacuum extractors, by comparison, are touted as a safer tool due to the lack of human force they require. However, the machine exerts quite a bit of force all on its own. In a study of 134 births delivered with a vacuum extractor, 28 infants sustained some degree of scalp trauma, from superficial to serious. There are clearly positives and negatives about both tools.

Specific Injuries

Different injuries are more likely with one tool than with the other, but some are depressingly common with both. Brain injuries resulting in neurological trauma happen in 1 of every 664 infants delivered with forceps, and 1 in 860 delivered with a vacuum extractor. Given the relative softness and elasticity of a newborn’s neck, skull and spinal cord, one can reasonably expect that pressure on that area would lead to problems. Developmental delays may occur with brain trauma, which impair motor skills and can sometimes impair cognitive abilities.

Another very common injury with both methods of delivery hastening is an injury to the brachial plexus (BPI), or the network of nerves around the spinal cord that can restrict movement or other bodily functions. The brachial plexus nerves affect the arms, most commonly the upper arms, above the elbow. There are four types of BPIs: (1) avulsion, which is a complete tear of the nerve from its setting; (2) rupture, which is a tear of the nerve root; (3) neuroma, which is when the nerve becomes surrounded by scar tissue and thus inhibited, and (4) praxis, which means a stretching or tearing of the nerve, but not a complete tear.

The most commonly seen BPIs are Erb’s palsy and Klumpke’s palsy, both of which can affect the arms and hands in myriad ways. It depends which of the injuries to the nerve has actually occurred in each case. For example, a baby who has suffered a praxis may recover the use of the arm muscles within days, weeks or months, while avulsion may render the arm largely unusable, simply because no sensation will reach affected areas.

Has Your Child Been Injured?

Even a temporary injury can have an effect on a child’s quality of life, and it is important to know your rights in order to be compensated fairly if the injury is worse. The birth injury attorneys at Meinhart, Smith & Manning, PLLC know the ins and outs of these cases, and we will put our extensive experience to work for you. Contact our Louisville office today for a free consultation.

Posted in Personal Injury

What is the APGAR Score?

When a child is born, all a parent wants to do is get acquainted. However, there are formalities to deal with. At one minute and five minutes after birth, a test of sorts is given to the newborn to quickly assess his or her health and cognitive function. Named after the anesthesiologist who developed it, the Apgar score is thought to be an accurate way to tell whether a newborn needs immediate medical attention. It is done at every birth in the United States that occurs in the presence of a medical professional.

What The Score Means

Though the test was named after Virginia Apgar, the name is also used sometimes as an acronym for the criteria the test is measuring. A baby’s Apgar score measures five things. They are:

  • Appearance – skin color, et cetera
  • Pulse – Heart rate
  • Grimace response – reflexes and facial response
  • Activity – muscle tone and ability to respond normally
  • Respiration – breathing sound & effort

The total score will be a number out of ten points; ten is maximum, but very rarely scored. A seven, eight or nine is considered normal, with no need for emergency treatment. However, a low score at one minute is not immediate cause for concern – most of the time, the score will improve to normal by five minutes. Low scores are most common if there has been anything unusual about the birth – for example, cesarean section or breech birth.

The score is also meant only to assess immediate health concerns; if your baby scores low, it is not necessarily indicative of any long-term medical conditions.

Legal Ramifications

It is rare, but plausible, that an Apgar score can be falsified or mistakenly recorded by the reporting physician. The test is always conducted by a physician other than the delivering obstetrician, but if there is any kind of relationship, the score may be altered. For example, a recent case in Philadelphia involved an infant with a five-minute Apgar score of 7, but the raw scoring was not documented on the child’s chart. It was later determined that the testing physician was married to the delivering obstetrician, and inflated the score to shield their spouse from any potential punitive consequences.

The main time that an Apgar score can come into question in a civil suit, however, is when it is used as evidence that a child sustained a brain injury or other condition in some other manner than at delivery. Sometimes, in actions for medical malpractice, the defense attempts to use a child’s Apgar score as proof that they were in good health while their client had charge of them. For example, if a child is diagnosed with cerebral palsy, but had a listed five-minute Apgar score of 7, the defense can use that as evidence that the diagnosis was not due to any kind of medical negligence.

For example, a California woman delivered a healthy infant with Apgar scores of 8 and 8, though with low platelets. That child later was diagnosed with hydrocephalus and suffered a massive brain bleed, causing neurological injuries. In the ensuing lawsuit, it was alleged that since the infant’s Apgar scores were within normal range, that the delivery was not the proximate cause of the infant’s later bleeding and trauma. The jury disagreed, finding for the plaintiff.

Contact A Birth Injury Attorney

A low Apgar score does not mean a lifetime of disability for a child, but a high Apgar score does not necessarily mean that nothing has gone wrong. If you or a loved one has a child who has sustained a birth injury, we can help. The firm of Meinhart, Smith & Manning, PLLC has years of experience in these cases, and we will do our best to put it to work for you. Contact our Louisville office today for a free consultation.

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Posted in Personal Injury

Missed Cancer Diagnosis Inspires Meinhart Smith & Manning Scholarship Winner

April LiwanagWhen our law firm asked scholarship applicants to write an essay about how medical malpractice or injury from negligence affected their lives, the response was overwhelming. Among the applications submitted, one stood out. April Liwanag told the story of how physician overconfidence led to a delayed diagnosis when her mother contracted breast cancer.

April, a student at Michigan State University College of Law, was awarded the 2014, Meinhart Smith & Manning Scholarship to continue her studies. The $1,000 scholarship was designed to support those who’ve been directly impacted by a serious injury and who are motivated to help others.

Ms. Liwanag clearly recognizes the dual role injury attorneys have. Getting a full and fair settlement is the primary objective, but by holding those in authority accountable, others might be spared the kind of agony she described.

April’s mother, a nurse, was diagnosed with cancer in her right breast. A mass in the left breast was thought by physicians to be benign and ignored. Multiple surgeries on the right breast eventually culminated in complete removal on that side. Meanwhile, the undiagnosed cancer in the left breast continued unabated and untreated. It wasn’t until April’s mother insisted on a biopsy that this second danger was revealed. Treatment had been delayed two months and resulted in a second mastectomy, repeating all the emotional upheaval, surgery, and recovery.

“A thought I do not like entertaining is what if my mother had not demanded the biopsy on her left breast? Unfortunately, many people do not have the knowledge and assertiveness as my mother had to question her doctors’ recommendations,” April wrote.

Thankfully, her mother survived the ordeal and is currently in remission.

The kind of adversity suffered by April and her family has a real power to reshape lives for the better. We are confident that April will make an excellent injury law attorney, in no small part because of her experience.

April graduated from the University of Hawaii, Cum Laude, with her Bachelor’s in English and Psychology. She also has awards in legal research and writing, and was a finalist for the MSU Law Review Best Brief Competition.

We know from our work here in Kentucky that April’s story isn’t unique, and we are happy to help her achieve her educational goals and to move on from the tragedy.

Posted in Firm News

Causes and Symptoms of Lack of Oxygen at Birth

oxygen-deprivationIf asked to list the most important elements for our bodies to function correctly, oxygen would likely be at the top. It fuels every process in our bodies to some degree. Consequently, lack of oxygen can cause significant and frightening injuries, even if only deprived for a very short time. It is important to know the signs and symptoms of hypoxia, or oxygen loss, so that immediate and long-term steps can be taken. If you or a loved one develops injuries from oxygen deprivation, you may be able to obtain compensation.

Severe Oxygen Deprivation Causes and Symptoms

Severe oxygen deprivation in babies and children usually stems from some injury sustained at birth. Head trauma is usually the most common cause, but other more specific problems may develop, such as Erb’s palsy, and in some cases, cerebral palsy, though most cases of cerebral palsy develop in utero. Some physicians allege a link between oxygen deprivation at birth and autism, but medical science has not conclusively confirmed that.

Mild and moderate oxygen deprivation, while something that requires monitoring, will not usually leave the sufferer with any long-lasting effects, though sometimes there will be a noticeable impairment in short-term memory. Cognitive deficits may appear in a moderate case, but it is not until severe deprivation has occurred that you begin to see symptoms such as seizures and brain injury.

What You Should Do

If you believe your child has suffered injury due to oxygen deprivation at birth, you may be able to file a medical malpractice claim. Medical malpractice in Kentucky is defined as the instance when a physician does not adhere to the prevailing standard of care and their patient suffers injury as a result. The statute of limitations on filing an action is one year from either the date of the injury, or a date where the injury ought to reasonably have been discovered.

In most cases where an injury resulted from oxygen deprivation, especially in the case of babies, a case can be made that the standard of care has been breached. Kentucky has somewhat more lax rules than many other states, in that no special rules are imposed upon expert witnesses in malpractice cases. Nor is there a damage cap on what an injured patient can receive – many states impose limits on either actual or punitive damage amounts that can be recovered in the event of success at trial, but as of this writing, Kentucky has no caps. In this way, the state’s laws are a bit more friendly to plaintiffs than many others – the power of the medical lobby has led to very short statutes of limitations and sharp damage caps in many other states throughout the country.

Contact a Birth Injury Attorney

Birth injury cases can be extremely expensive to mount on your own, especially if you are dealing with the trauma of injury to yourself or your child. The attorneys at Meinhart, Smith & Manning, PLLC can help you. We have a history of excellence in malpractice cases, and will do our best for you. Contact us today.

Posted in Personal Injury

What Duty Does A Hospital Owe?

emergency-vehicle-accidentIn late July, Iveth Yaneth Garcia-Menchaca took her two-month old baby, Issac, to Kosair Children’s Hospital after his father allegedly beat his head into the bathtub. Personnel did their best to save the child, but could not – he was declared brain dead and preparations were made to take him off his feeding tube. However, the mother filed suit against this, stating that only parents could make those medical decisions. A circuit court judge declined to sanction that idea, stating that no parental right survived. Ms. Garcia-Menchaca still did not recognize the ruling, saying she was ‘devastated.’ It brings up an interesting question – can a hospital be found liable for an injury they did not create?

Physical Injuries

In the case of physical trauma to a patient, a hospital cannot be liable for the actual injury, but it or its personnel can absolutely be found liable if they fail to adequately treat the injury, through recklessness or negligence. Such conduct would most likely amount to medical malpractice, which is when a health care professional, knowing the governing standard of care, violates it and causes an injury to a patient.

In this particular case, Kosair’s treatment of Issac was by all accounts exemplary; the fact that their personnel were unable to resuscitate him is not relevant to the question of any alleged negligence. So no liability for physical injury would apply.

Emotional and Mental Injuries

The tort of intentional infliction of emotional distress is a common one, observed in nearly all states. However, there is no indication in Ms. Garcia-Menchaca’s case that Kosair intended to cause her any distress, and instead wanted merely to minimize the time and expense spent on caring for a child who was past saving.

Kentucky does, however, recognize the tort of negligent infliction of emotional distress (NIED). The elements of NIED are fairly simple, and they encompass negligence per se – that is, to have NIED, one must have negligent conduct; a case of negligence must be proven. (Negligence as a matter of law turns on five points that all must be proven by the plaintiff – duty of care, breach of that duty, proximate cause, actual cause, and damages.) If a defendant has conducted themselves negligently, and it caused severe emotional distress to the plaintiff, the elements of NIED have been met.

The idea of emotional distress is much more relevant to this case. Here, the doctor, and by extension, the hospital, owed a duty of care toward Issac, their patient. However, no Kentucky case law supports the theory that a duty of care is owed toward the parents or other family of a patient – it does exist in other states, most notably New York, but as of right now there is no case on point in Kentucky. And if one cannot prove that the defendant had a duty of care toward the plaintiff, the entire case collapses. Ms. Garcia-Menchaca could not argue that Kosair breached any duty of care toward her as the patient’s parent, because as of this writing, no duty of that nature has been established in Kentucky law. If there is no duty of care, there is no negligence as a matter of law, and without negligence, any NIED claim would collapse as well.

Contact An Attorney

If you or a loved one has suffered injury through the negligent or reckless acts of a medical professional, we may be able to help. Call Meinhart, Smith & Manning, PLLC today for a free consultation.

Posted in Personal Injury

Possible Medical Malpractice Reform in Kentucky

medical-malpracticeKentucky is soon to decide what is proving to be an extremely hotly contested election. Mitch McConnell, the Senate Majority Leader, is facing off against Alison Lundergan Grimes, Kentucky’s Secretary of State, for McConnell’s Senate seat, and the campaign has been muckraking, to say the least. It is extremely close, and there are a few hot-button issues that are serving to set voters on one side or the other. The issue of medical malpractice reform has come up again and again in the media, and has the potential to polarize voters.

Current State of Medical Malpractice in Kentucky

As it stands right now, the current climate for medical malpractice in Kentucky is surprisingly patient-friendly. Medical malpractice is defined in Kentucky as a healthcare professional “violating the governing standard of care when providing treatment to a patient, causing the patient to suffer an injury.” This definition is noticeably wider than that of other states – Florida’s, for example, refers only to health care providers, then defines that further, leaving out certain classes like hospice workers or acupuncturists.

Kentucky has also bucked the prevailing trend when it comes to damages. The majority of other states have placed caps on punitive damages in medical malpractice cases, bowing to the cries of the medical lobby that insist enormous verdicts are common and will bankrupt doctors. Kentucky currently has no cap on punitive damages or attorney’s fees in malpractice cases.

Tort Reform

Proponents of tort reform allege multiple reasons for why Kentucky should fall in line with the prevailing trend in medical malpractice rules – most notably, enacting a punitive damage cap. Dave Adkisson, the president of the Kentucky Chamber of Commerce, argues that the current medical liability climate in Kentucky actually drives away employers, because they fear incurring tort liability. He also makes the point that Kentucky already has a shortage of health care providers, and continuing unfettered malpractice liability will make that shortage worse.

Opponents of tort reform cite a distrust of the medical lobby and an unwillingness to tilt the proverbial playing field in a direction they already see as imbalanced. David Hyman, MD, JD, and Charles Silver, JD, co-authored an article published in Chest, a medical journal, that debunks many of the myths that proponents of tort reform in Kentucky propagate. Most notably, the idea that uninjured patients are routinely awarded ‘enormous verdicts’ and that ‘tort reform is the only answer’ is taken to task. The authors use data from Texas to show that after tort reform was adopted in 2003, very little changed in the amount of money plaintiffs were awarded.

There are several proposals before the Kentucky legislature that would tighten regulations, making the field arguably more level. One of the most talked-about is Senate Bill 119, which would create panels of medical experts to review claims. The opinions of the panel would not be binding, but they would create more persuasive evidence that a claim was frivolous that could be used in court. Opponents are unsure whether this would actually cut down on frivolous lawsuits, or if it would simply be another expensive boondoggle – the panels would require upkeep, after all.

An Expert Can Help

If you or a loved one have been harmed by medical malpractice, it is important to know what you can and cannot do, and due to the expense of malpractice legislation it is often best to have an expert attorney on your side. Call the attorneys at Meinhart, Smith & Manning, PLLC today for a free consultation.

Posted in Medical Malpractice

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