They say an opportunity missed is an opportunity lost. Such is the case in Kentucky as yet another legislative session has passed without any meaningful reforms to our state’s legal system.
For yet another year, Kentucky will lag behind states that have enacted common sense reforms to encourage economic growth and promote better health care while still ensuring fairness and access to the courts.
We may never know what company with the promise of new jobs scratched Kentucky off the list of possible locations. We may never know how many top-notch physicians chose to practice in other states. We may never know all the opportunities lost because Kentucky has yet to follow the example of the majority of states in our region by passing tort reform.
Sadly, this outcome should come as no surprise. Certain powers in Frankfort have, for many years, thwarted efforts at legal reform at the behest of the plaintiffs’ bar.
The mere mention of tort reform sends personal injury lawyers scurrying to the press and to their friends in the legislature with “Chicken Little” tales of how the sky would certainly come crashing down on the Bluegrass were it to pass.
But where are the supposed horror stories from states that have passed tort reform? You don’t hear those stories because trial lawyer fear-mongering is little more than empty rhetoric meant only to protect their own self-interest.
Instead, what you see in states that have enacted legal reforms is new physicians moving in, and job creation. You also see hospitals and nursing homes better able to focus on what matters—providing care in needed areas—rather than defending against meritless lawsuits and limitless awards.
Tort reform is simply about establishing a consistent and transparent level of risk for businesses, health care facilities and caregivers. It is bad news for trial lawyers because it limits their potential profit, which under current law in Kentucky, is effectively limitless. But what is in the best interest of the trial bar is not always what is in the best interest of the public, taxpayers or even the clients these lawyers serve.
Recently, the Courier-Journal reported that Louisville (the nation’s 49th largest media market) ranked seventh in volume of trial lawyer advertisements. Why do trial lawyers spend so much on advertising in Kentucky compared to elsewhere? The answer is because there is a big bulls-eye on Kentucky as each of our surrounding states has already enacted some type of tort reform.
In defending the status quo, personal injury lawyers simply deny that there is any crisis (with careful resort to national statistics, inclusive of states that have enacted tort reform, rather than Kentucky statistics). We know better.
Tort reform would benefit all those involved in the process by weeding out meritless lawsuits that soak up litigant and court resources and inflate the cost of trying legitimate claims. Moreover, placement of modest and reasonable limitations on noneconomic damages would incentivize doctors to locate to (and to stay in) Kentucky, attracting much-needed specialists and benefiting critically underserved rural areas.
Legal reform is also a win for Kentucky’s economy. The U.S. Chamber of Commerce’s Institute for Legal Reform (ILR) publishes an annual study assessing the economic impact of states’ legal systems. In 2015 the ILR estimated that reforming Kentucky’s legal environment would reduce tort costs by $451 million.
According to a 2012 study conducted by the same group, 70 percent of senior attorneys at major corporations reported that a state’s litigation environment is one factor that is likely to impact important business decisions such as where to locate – and create jobs.
It is time for us to cut through all the nonsense and focus on the facts. It is time to enact tort reform in Kentucky.
Michael G. Adams serves as Senior Counsel to the Partnership for Commonsense Justice and is a partner with Chalmers Pak Burch & Adams LLC in Louisville.