Bench & Bar

SEP 2014

The Bench & Bar magazine is published to provide members of the KBA with information that will increase their knowledge of the law, improve the practice of law, and assist in improving the quality of legal services for the citizenry.

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22 B&B; • 9.14 F E AT U R E : T O R T S In conclusion, while we recognize that this article is structured as a " point/counterpoint" presentation, certain issues seem. irrebut- table The emotional and economic components of a malpractice case are unique for both patients and physicians. These compo- n ents take a very real toll upon our health care system. In many in- stances, no one "wins." Tort reform – if undertaken – should not be a mere reflection of national politics. Instead, it should be a product o f consensus, painstakingly molded in the spirit of compromise, recognizing that concessions must be made by all participants and that absent a measure of "pain" there will be no "gain." Gerald Toner is a defense lawyer concentrating in medical malpractice, product liability, and first party insurance liability. Thirty years ago, he was lead counsel in one of Kentucky's seminal no- fault insurance cases and, over the past 10 years, he has tried over 25 cases to a verdict. He is a partner with O'Bryan, Brown & Toner in Louisville. Toner is on the board of directors of DRI, Kentucky Defense Counsel, Kentucky Pediatric Foundation, U of L Pediatric Endowment Foundation, and the Kentucky Bar Association's Communications & Publications Committee. Toner graduated from Har- vard College, cum laude, and from Vanderbilt University Law School. His interests include softball, photography, and writing; his short stories and a novel have been published in Redbook and other national magazines and in book form by Pelican Publishing & Butler Books. Toner's wife, Carol, is a former school teacher who now caters professionally. His two grown children; Jennie and John, are out conquering the world and its problems. Stephanie Caldwell is an associate at O'Bryan, Brown & Toner, PLLC. She concentrates her prac- tice in the defense of physicians and hospitals in medical negligence claims. Prior to joining the firm, Caldwell worked as a staff attorney in the Jefferson County Circuit Court. 1 Carol K. Kane, Medical Liability Claim Frequency: A 2007-2008 Snapshot of P hysicians, AMA Economic and Health Policy Research (August 2010). 2 I d. 3 Kamaljeet P. Murthy, William A. Grobman, et al., Association Between Rising Professional Liability Insurance Premiums and Primary Cesarean Delivery Rates, 1 10(6) Obstet. Gynecol. 1264 (2007); A. Russell Localio, Ann Lawthers, et al., Relationship Between Malpractice Claims and Caesarian Delivery, 269(3) JAMA 3 66 (1993). 4 A nnelee Boyle, Uma M. Reddy, Helain J. Landry, et al., Primary Cesarean Deliv- ery in the United States, 122(1) Obstet. Gynecol. 33 (2013). 5 Id. 6 K ane, supra note 1. 7 Sara C. Charles, Coping with a Medical Malpractice Suit, 174 West J. Med., 55 ( 2001). 8 I d. 9 F la. Stat. §766.104; Minn. Stat. Ann. § 145.682; Miss. Code Ann. § 11-1-58; N.C. Gen. Stat. § 1A-1 r. 9(j). 10 Ohio R. Civ. P. 10(D)(2); Ga. Code Ann. § 9-11-9.1; Conn. Gen. Stat. Ann. § 52- 190a. 11 See N.J. Stat. Ann. § 2A:53A-27. 12 David H. Sohn, Negligence, Genuine Error, and Litigation, 6 Int. J. Gen. Med. 49, 54 (2013). 13 Id. 1 4 Id. at 53. 15 Ronald M. Stewart, Molly West, et al., Tort Reform is Associated with Significant Increase in Texas Physicians Relative to the Texas Population, 17 J. Gastroin- test. Surg. 168 (2013). 1 6 Daniel P. Kessler, William M. Sage, & David J. Becker, Impact of Malpractice Reforms on the Supply of Physician Services, 293(21) JAMA 2618 (2005). For 25 years Lawyers Mutual has stood by its mission to support Kentucky Lawyers. If you have a question, need assistance with risk management, looking for risk management resources, or quote for your professional liability insurance contact us using the information below. Have You Taken Care of Your "Old Dog" Case? Work it. File it. Try it. Close it. When You Need a Court Bond. Anytime, Anywhere. Lawyers Mutual Insurance Agency • 877.553.6376 • Fax: 888.658.6761 • www.lmia.onlinecourtbonds.com Waterfront Plaza • 323 West Main Street, Suite 600 • Louisville, KY 40202 • 502.568.6100 800.800.6101 • Fax 502.568.6103 • Web: www.lmick.com • Email: Meyers@lmick.com Apply Online With Our Quick Quote: www.lmick.com!

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