Why is a constitutional amendment needed for tort reform? 

by Robert Emslie, MD

Several times in the past 30 years most recently in 1994, the legislature inKentucky has attempted to pass laws to clarify and improve the issue of medical malpractice legal reform.  Each time the legislature has done this it has been struck down by the state judiciary as unconstitutional.  No matter what laws are passed by the legislature at this time they risk the chance that yet again they will face judicial nullification.  The members of the Warren County Medical Association, as well as other organizations throughout Kentucky, support constitutional change so that the legislature can consider this matter.  At this point we favor legislation that would limit damages which are for “pain and suffering” which are extremely subjective as well as “punitive” damages, again extremely subjective and not defined well in any way by law.  Those changes would not affect in any way the plaintiff’s right to recover economic damages and cost of past or future medical care.

It is clear from surveys throughout the country that although medical malpractice premiums have continued to rise, the rate of rise has been significantly less in states that have some types of caps on awards for “pain and suffering” and “punitive” damages. 

© Warren County Medical Society 2012