Published: February 22, 2008 11:35 pm         

Column: Is medical malpractice on the state legislature’s table?

RICHMOND, Ky. — In 2004, insurance companies pushed to cap medical malpractice awards. Kentucky was one of the 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.

People close to the legislative process whisper the possibility of malpractice reform.

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 threats 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 Mongiardo 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 Mongiardo’s commitment was extremely personal.

Mongiardo is now Lieutenant Governor Mongiardo. 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.

This 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 Louisville 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 politically 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 the whispers start getting louder, injury advocates can reunite the coalitions that worked in 2004, or they can have a “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.

Sometimes whispers are idle speculation, but sometimes they are not.



Don McNay writes for the Richmond (Ky.) Register. You can write to him at don@donmcnay.com.