Kentucky legislation Would Mandate Mediation for Medical liability Claims

Kentucky legislators have introduced legislation that would mandate mediation for all medical malpractice litigation against licensed health care providers. The bill would require the parties to a lawsuit alleging medical negligence to "fully explore" the possibilities of reaching a fair voluntary settlement in mediation. The bill contains an opt-out provision, which would allow the parties to seek an order from the court exempting them from the mediation requirement. The bill sets out detailed mediation procedures such as the mediation must commence within 180 days after responsive pleadings are filed. But the parties could agree to delay mediation for up to 60 days. In addition, the parties would have 20 days to agree on a mediator, but if they could not agree within that time, the presiding court would make the appointment. At least seven days before the mediation, the parties must give the mediator a statement of issues, positions and interests and the important documents. If a party fails to do this or is more than 30 minutes late to the mediation session, the mediator could cancel the mediation and file a certificate of noncompliance with the court. Punitive measures could be inflicted on the non-complying party, including the payment of all cancellation fees and sanctions imposed by the court.

The parties must attend the mediation with their attorneys - a lawyer could not appear in the client's stead. If applicable, a representative of the insurer must attend the mediation. Those present at the mediation must have authority to settle. In the case of a party who has insurance, this includes the insurance company, if the insurance policy requires the insurer's consent to a settlement. A settlement agreement reached through mediation must be reduced to writing and signed by the parties or their lawyers.