The coming Republican control of state government makes it likely that doctors and other health-care providers will get from the General Assembly what they have wanted for more than 30 years: legislation to limit non-economic damages in malpractice lawsuits.

But the voters will have the final say, because the measure will require changing the state constitution.

Meanwhile, the legislature and Gov. Matt Bevin can, on their own, enact a law requiring such lawsuits to be evaluated by a screening panel. “The plaintiff and defendant would each nominate one doctor, and those doctors would select a third. The panel would hear evidence, then issue an opinion on whether negligence occurred and if it did, whether it caused the patient’s injuries.

Regardless of the finding, the plaintiff could still file suit and proceed to trial, but the panel’s finding would be admissible,” Andrew Wolfson writes for The Courier-Journal. “Peer-reviewed university studies, including one in the Journal of Legal Medicine, have found that screening panels have not reduced the number of claims, litigation costs or malpractice insurance premiums, while they have caused protracted delays,” Wolfson reports.

Any broader measure to limit damages would require a constitutional amendment because the 1891 Constitution says legislators “shall have no power to limit the amount to be recovered for injuries resulting in death, or for injuries to person or property.”

“Supporters of tort reform, like Louisville emergency room Dr. Robert Couch, say “sky-is-the-limit” liability forces physicians to order unnecessary tests and procedures and that eliminating such defensive medicine would reduce health care costs,” Wolfson reports. “He also said the fact Kentucky is surrounded by states that have all enacted damage caps and other restrictions makes it harder to recruit doctors to the commonwealth.”

On the other hand, “Opponents say reducing liability could increase costly medical errors, lowering the quality of care and increasing costs,” Wolfson writes. “Experts say that medical malpractice costs account for such a minuscule amount of the nation’s total health-care bill – only 2 percent by some estimates – that reforms have virtually no impact on the bottom line for patients.”

Generally, Wolfson notes, studies show caps and other malpractice changes reduce insurance premiums for doctors by 23 to 31 percent, researchers at the University of Alabama at Birmingham’s Center for Health Policy have written, “Legislators should consider whether they benefit consumers enough to justify limiting recoveries for those most seriously injured by malpractice.”

Wolfson starts his article with the story of an Indiana insurance lobbyist who helped win a law there limiting damages to $500,000 and eliminating any damages for pain and suffering: “Fourteen years later, as the victim of malpractice during and after routine knee surgery, he was left wheelchair-bound and tethered to a respirator and a morphine drip.”

In 2006 he wrote an article for The New York Times titled “Crushed by My Own Reform,” saying damage caps “remove the only effective deterrent to negligent medical care.”

Any malpractice-tort crisis in Kentucky “seems to have abated, as medical malpractice claims have abated across the U.S., including in Kentucky, according to the National Practitioners Data Bank, to which all claims must be reported,” Wolfson writes. “The amount paid on medical malpractice claims in Kentucky, including cases that were settled, declined $20 million in inflation-adjusted dollars from 2005 to 2015, according to the Data Bank, while the number of claims paid in 2015 declined to 134 from 150 five years earlier. Only 1 percent of 1,667 claims from 2005 to 2015 were for $2 million or more, and only 5 percent were for $1 million to $2 million. Medical and insurance groups note the figures only include claims that were paid, not ones in which doctors prevail, which still cost money to defend.”

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According to the U.S. Food and Drug Administration, at least 66 e-cigarette batteries have exploded since 2015. The FDA is currently reviewing e-cigarette explosions, but has yet to take action. Recently, New York Senator, Chuck Schumer, asked the FDA and the Consumer Product Safety Commission to “consider recall options.” He cited the fact that exploding e-cigarettes have left people with third degree burns, blindnes, and face, mouth and teeth injuries.

Here are some safety tips for e-cigarette vapers. Approximately 80% of reported explosions occur during or shortly after charging. The first tip is don’t buy a cheap charger. Pay extra for a charger that stops charging when the battery is fully re-charged. Also, don’t use a battery with a broken wrap. This will avoid metal-to-metal contact, which can cause sparking. Batteries should be stored in a case to avoid contact with metal objects like car keys. Finally, don’t use any USB port other than the one your vape came with when you bought it. Using USB ports on laptops and other devices is not recommended.

In the end, the safest approach is to avoid using e-cigarettes. In recent years, there have been many incidents of explosions and fires involving products powered by Lithium Ion Polymer (LiPo) batteries, including hoverboards, the Samsung 7 cell phone and e-cigarettes. Even the most cautious vaper may not be able to detect defects to his or her e-cig battery or charging device.

When looking for the best in medical expert witnesses, contact Rieback Medical Legal Consultants.  We provide only the highest quality, certified medical expert witnesses. Call 954-472-1825 for a free consultation or fill out our online form.

By Jim Saunders, The News Service of Florida

TALLAHASSEE, Fla. - Florida Supreme Court justices appeared skeptical Thursday about the constitutionality of a 2013 medical-malpractice law that critics argue could lead to violations of patient privacy rights.
 
Five justices asked critical questions about the law, which is part of years of battles between groups such as doctors and plaintiffs' attorneys about the state's malpractice system. The 1st District Court of Appeal upheld the law last year.
 
The law allows what are known as "ex parte communications" as physicians' defense attorneys gather information in medical-malpractice disputes. The communications would involve defense attorneys talking with other doctors who have treated the patients involved in the disputes. Those doctors may have treated the patients for issues unrelated to the malpractice allegations -- and the patients' attorneys would not be present for the conversations.
 
Critics argue, in part, that the law could dissuade people from pursuing medical-malpractice cases because of concerns that private medical information would be disclosed during conversations between their doctors and defense attorneys. During Thursday's hearing, Justice Barbara Pariente suggested that the law could have a "chilling" effect on malpractice cases.
 
"Your medical information is one of the most private of what you possess as a citizen, what you talk to your doctor about, your treating doctors, and it could go far from just your medical condition," Pariente said at another point in the hearing.
 
The challenge to the law was filed in 2013 in Escambia County. The plaintiff in the case, Emma Gayle Weaver, contemplated filing a medical-malpractice lawsuit against physician Stephen Myers but was concerned about the constitutionality of the ex-parte change, according to court documents. Weaver was the wife of the late Thomas E. Weaver, whose care was at issue in the malpractice allegations.
 
Erik Bartenhagen, an attorney representing Myers, told the Supreme Court that other states have similar laws and that ex parte communications are aimed at helping resolve malpractice cases.
 
"The purpose of it is to have a full and free exchange of all information relating to a claim prior to entering the courthouse doors in order to weed out frivolous cases and settle meritorious cases," Bartenhagen said.
 
Robert Peck, an attorney representing Weaver, raised a series of constitutional objections to the law, including arguing that it violates privacy rights in the Florida Constitution. Also, he contended that the Legislature's passage of the law violated the separation of powers because the Supreme Court has the constitutional authority to decide issues such as whether to allow ex parte communications.
 
The Supreme Court typically takes months to rule on cases. But Pariente was joined by Chief Justice Jorge Labarga and justices R. Fred Lewis, Peggy Quince and James E.C. Perry in asking critical questions about the law. The other justices, Charles Canady and Ricky Polston, sat quietly throughout the 45-minute hearing.
 
Lewis was particularly pointed in his questions of Bartenhagen, at one point referring to conversations allowed by the law as "clandestine."
 
Bartenhagen said much of the patient information can be obtained through other types of evidence-gathering in malpractice cases, but the use of ex parte communications can make the information available earlier.
 
"I think the feeling is that this will lead to more open and free discussion and that therefore the value of the case will be determined earlier," he said. "Right now (without ex parte communications), there's no way for these frank and candid discussions between the defense and other treating physicians to happen until you take a formal deposition or you schedule a sworn statement with the plaintiff there."
 
But Lewis indicated he doesn't think such reasoning means the law is constitutional. He also refuted assertions by Bartenhagen that other protections are in place to prevent the disclosure of private patient information that is not relevant to the malpractice cases.
 
"There's no one there (in ex parte discussions) to say, 'Hey, that's not relevant, don't go there,' " Lewis said. "How can you protect against it if nobody knows it's going on?"

While this is in Florida, it could take place in any state.  Make sure to pay attention to your rights and who may be trying to alter or push laws to take them away.