Legal Insight

Kentucky Supreme Court Addresses Negligent Credentialing

2017 has been a banner year for developments in healthcare litigation in Kentucky. While the focus has largely been on medical review panels, another issue of importance has been that of negligent credentialing claims brought against hospitals. Nationwide, states have been split on whether this cause of action is recognized. Lost in the recent rulings regarding medical review panels was the Kentucky Supreme Court’s quiet release of its opinion on November 2, 2017 striking down negligent credentialing as a separate and new cause of action against hospitals. This opinion provides clarity for hospitals facing claims of negligence related to physicians with staff privileges at their facilities and also provides guidance for counsel to properly defend cases with credentialing allegations. More >

Insurers Beware: Bad Faith Claims

Things seemed to be going better for insurers on bad faith claims in Kentucky after the case of Hollaway v. Direct General Insurance in September of 2016, which clarified the stringent standards for third party bad faith claims. Bad faith law in Kentucky took another turn, however, with the Kentucky Supreme Court case of Indiana Insurance Co. v. Demetre¸ which upheld a $3.425 million verdict against Indiana Insurance Company. What makes this case even more challenging for insurers is that Indiana Insurance paid the claim AND defended the insured in court, proving that bad faith can still be found even where the insurer substantially performs as required. More >

Advantages of Mediation

The world of mediation can be a strange place for those expecting a more adversarial process. Rather than act on behalf of either party, the mediator plays a role in the middle, acting as a buffer between the parties to bring them together for mutual benefit. Just as with the conductor of an orchestra, the mediator is there not to create something herself, but to guide the others to do so. A mediator is not only a conductor or a referee, however, and the way a mediator works within the role can add significant value to a mediation. More >

Kentucky Motor Vehicle Reparations Act: The Basics

Sometimes referred to the “No-Fault Act,” the Kentucky Motor Vehicle Reparation Act (“MVRA”) was enacted by the General Assembly in 1974 and ushered in great change in the Commonwealth’s motor vehicle insurance law. The MVRA, which is codified at KRS 304.39, consists of two main components: basic reparation benefits (“BRB”) and tort limitations. Below, some of the key tenets of each component are discussed. More >

A PSA Regarding the PSA: Patient Safety Work Product and Privilege

Much has been made of the efforts to increase the quality of patient safety and healthcare in recent years.  To further this goal, Congress passed the Patient Safety and Quality Improvement Act of 2005 (“PSA”), which provides the protection of privilege to documents created as part of patient safety efforts in patient safety organizations. These organizations are defined as private, certified organizations that operate within larger healthcare organizations to improve care and reduce medical errors. The purpose behind this protection is to encourage healthcare providers to share information enabling evaluation of healthcare treatment, including failures, to improve patient safety and quality of care without fear of liability.  More >

How to Minimize Professional Liability Risk: Five Practical Steps

One of the biggest challenges professionals face is when their very livelihood is threatened by litigation alleging professional malpractice.  Although the risk of litigation is inherent to many professions, there are a variety of strategies which, if implemented appropriately, can help mitigate that risk.

Fortunately, many of these practical steps can be taken by professionals at the outset of a project to prevent problems from arising at a later date. While the following tactics won’t prevent every potential problem, their utilization can reduce the risk of finding yourself – and your career – in a compromising position. More >

No Malice Aforethought: The Current State of "Malicious Prosecution"

To effectively limit and guide human behavior, the law needs (at least) discoverability, predictability and, above all, consistency. To be just, a cause of action and its elements should be defined and applied in the same way for similarly-situated individuals. That makes it especially problematic that there are so many conflicting rules and interpretations for “malicious prosecution” at both the state and federal levels. More >

The Case for Diversity in a Law Firm Setting

As lawyers and legal professionals, we work in one of the least diverse professions in the country. At McBrayer, we are committed to doing our part to help improve diversity and inclusion in the profession. Lawyers can be slow to change, much like the law itself, but several recent initiatives give us hope.  More >

Rule 30(b)(6) in Depositions and at Trial

One of the big “if only” moments in corporate litigation concerns testimony: if only a corporation as a corporation could face deposition. Despite the legal fiction that corporations have an identity, it remains impossible, absent some serious and frightening advances in future technology, for a corporation to testify on its own behalf. To get around this dilemma, the Federal Rules of Civil Procedure include Rule 30(b)(6) (“30(b)(6)”). This rule allows a party to name an entity such as a corporation, an association or a governmental agency as a deponent, and that entity will then designate a representative to be deposed on behalf of the company. (Kentucky’s Civil Rule of Procedure 30.02(6) substantially tracks the federal rule, so this information applies to both Kentucky and federal courts.) The rub is that 30(b)(6) deponents face a different set of standards for testimony than regular deponents, and that difference could create havoc for a client, up to and including sanctions. More >

Five Ways Municipalities Invite Exposure to Liability

Municipalities can be complicated and complex entities serving hundreds to thousands of individuals and businesses, while  employing numerous people themselves. Cities, not unlike any small or big business, face similar challenges (and liabilities) as  any private corporation, only with the added mandate of providing services and protection for all of those who work or live within their boundaries.  It is impossible, of course, to eliminate all liability facing municipalities in today’s public sector legal environment. Still, liability can be avoided to a large degree with planning and consideration. With that in mind, below are five ways municipalities invite exposure to liability, and more importantly, insight on how to prevent it. More >