Health Care Malpractice Insurance

KRS tit. XXV, ch. 304, subtit. 40

in effect

KRS 304.40-010 Legislative policy

304.40-010. Legislative policy The declaration of legislative policy of KRS 304.40-030 to 304.40-140 is as follows: It is hereby declared by the General Assembly of the Commonwealth of Kentucky that the availability of health care liability insurance for physicians and surgeons, dentists, registered nurses, hospitals, and others engaged in providing health care is necessary for the general health and economic welfare of the people; and without such insurance, health care services may be severely curtailed; and that while the need for such insurance is increasing, the supply is not adequate and is likely to become less adequate in the future; and that present plans to provide adequate health care liability insurance in Kentucky have not been sufficient to meet the needs of our citizens. It is further declared that the Commonwealth has an obligation to provide an equitable method whereby every insurer licensed to write personal liability insurance in Kentucky be required to meet this market demand. It is the purpose of KRS 304.40-010 to 304.40-140 to define this obligation and provide a mandatory program to assure an adequate supply of health care liability insurance coverage in the Commonwealth of Kentucky. Effective: June 19, 1976 History: Created 1976 Ky. Acts ch. 164, sec. 1, effective June 19, 1976.

KRS 304.40-020 Definitions

304.40-020. Definitions As used in KRS 304.40-030 to 304.40-140: (1) "Association" means the joint underwriting association established pursuant to the provisions of KRS 304.40-030 to 304.40-140. (2) "Medical malpractice insurance" means insurance as defined in KRS 304.5- 070(1)(j). (3) "Commissioner" means the commissioner of the Department of Insurance. (4) "Net direct premiums" means gross direct premiums written on the lines of insurance set forth in KRS 304.40-030(1), as computed by the commissioner, less return premiums for the unused or unabsorbed portions of premium deposits. Effective: July 15, 2010 History: Amended 2010 Ky. Acts ch. 24, sec. 1534, effective July 15, 2010. -- Created 1976 Ky. Acts ch. 164, sec. 2, effective June 19, 1976.

KRS 304.40-030 Joint underwriting association -- Health care provider categories -- Termination -- Powers of association

304.40-030. Joint underwriting association -- Health care provider categories -- Termination -- Powers of association (1) A temporary joint underwriting association is hereby created, consisting of all insurers authorized to write and engage in writing in this state on a direct basis the following lines of insurance, as reported in the companies' annual statements: (a) Workers' compensation; (b) Liability other than auto; (c) Private passenger auto liability; (d) Commercial auto liability; (e) The liability portion of commercial multiperil policies; and (f) Health insurance including prepaid hospital services contracts and group or blanket health insurance. Every such insurer shall remain a member of the joint underwriting association as a condition of its authority to continue to transact such kinds of insurance in this state. (2) The implementation of the operation of the joint underwriting association shall become effective upon the order of the commissioner. The commissioner shall not order the association to commence underwriting operations until he or she, after due hearing and investigation, has determined that medical malpractice insurance cannot be made available in the voluntary market for any of the categories defined in subsection (3)(a), (b), and (c) of this section. The joint underwriting association shall remain in effect for a period of no longer than two and one-half (2-1/2) years from the date that it commences underwriting operations. (3) For the purposes of the joint underwriting association, three (3) health care provider categories shall be established: (a) Physicians and surgeons; (b) Hospitals; and (c) All other licensed health care providers. The commissioner shall hold separate hearings and conduct investigations on each of the three (3) categories of health care providers and determine for each category whether or not medical malpractice insurance is readily available in the voluntary market. If the commissioner finds that insurance is not readily available for any of the categories of health care providers, the joint underwriting association shall commence underwriting operations for that category. KRS 304.40-030 to 304.40-140 shall not preclude any licensed health care provider from procuring medical malpractice insurance from the voluntary market. If the commissioner determines at any time that medical malpractice insurance is readily available in the voluntary market for either (a) physicians and surgeons, (b) hospitals, or (c) all other licensed health care providers, the association shall thereby cease its underwriting operations for such category of medical malpractice insurance which the commissioner has determined is readily available in the voluntary market. (4) The association shall, pursuant to the provisions of KRS 304.40-030 to 304.40-140 and the plan of operation with respect to medical malpractice insurance, have the power on behalf of its members: (a) To issue, or to cause to be issued, policies of insurance to applicants, including incidental coverages and subject to limitations as specified in the plan of operation, but not to exceed one hundred thousand dollars ($100,000) for each claimant under one (1) policy and one million dollars ($1,000,000) for all claimants under one (1) policy in any one (1) year; (b) To underwrite such insurance and to adjust and pay losses with respect thereto, or to appoint service companies to perform those functions; (c) To assume reinsurance from its members; (d) To cede reinsurance; and (e) To negotiate and obtain in the voluntary market medical malpractice insurance for any health care provider to whom the association has issued or caused to be issued a policy of medical malpractice insurance with the foregoing limits. Effective: July 15, 2010 History: Amended 2010 Ky. Acts ch. 24, sec. 1535, effective July 15, 2010. -- Created 1976 Ky. Acts ch. 164, sec. 3, effective June 19, 1976.

KRS 304.40-040 Plan of operation -- Content of plan -- Approval -- Revised plan -- Amendments

304.40-040. Plan of operation -- Content of plan -- Approval -- Revised plan -- Amendments (1) Within forty-five (45) days following the order of the commissioner implementing the operation of the association, the directors of the association shall submit to the commissioner for review a proposed plan of operation, consistent with the provisions of this subtitle. (2) The plan of operation shall provide for economic, fair, and nondiscriminatory administration and for the prompt and efficient provision of medical malpractice insurance; and shall contain other provisions including, but not limited to, preliminary assessment of all members for initial expenses necessary to commence operations, establishment of necessary facilities, management of the association, assessment of members to defray losses and expenses, commission arrangements, reasonable and objective underwriting standards, acceptance and cession of reinsurance, appointment of servicing carriers or other servicing arrangements and procedures for determining amounts of insurance to be provided by the association. (3) The plan of operation shall be subject to approval by the commissioner after consultation with the members of the association, representatives of the public, and other affected individuals and organizations. If the commissioner disapproves all or any part of the proposed plan of operation, the directors shall within fifteen (15) days submit for review an appropriate revised plan of operation or part thereof. If the directors fail to do so, the commissioner shall promulgate a plan of operation or part thereof, as the case may be. The plan of operation approved or promulgated by the commissioner shall become effective upon order of the commissioner. (4) Amendments to the plan of operation may be made by the directors of the association, subject to the approval of the commissioner, or shall be made at the direction of the commissioner. Effective: July 15, 2010 History: Amended 2010 Ky. Acts ch. 24, sec. 1536, effective July 15, 2010. -- Amended 1980 Ky. Acts ch. 188, sec. 247, effective July 15, 1980. -- Created 1976 Ky. Acts ch. 164, sec. 4, effective June 19, 1976.

KRS 304.40-050 Policies issued by association -- Cancellation -- Rate -- Nonprofit group retrospective rating plan -- Deficit -- Contributions by members

304.40-050. Policies issued by association -- Cancellation -- Rate -- Nonprofit group retrospective rating plan -- Deficit -- Contributions by members (1) All policies issued by the association shall be written for the term of one (1) year. The directors of the association may elect to issue policies on an occurrence basis or a claims made basis. No policy form shall be used by the association unless it has been filed with the commissioner and either (a) the commissioner has approved it, or (b) thirty (30) days has lapsed and the commissioner has not disapproved it in accordance with KRS Chapter 304, Subtitle 14. (2) Cancellation of the association's policies shall be governed by the laws and regulations governing the cancellation of other policies of casualty insurance, except that the association may also cancel any of its policies in the event of nonpayment of any stabilization reserve fund charged, by mailing or delivering to the insured at the address shown on the policy, written notice stating when not less than ten (10) days thereafter cancellation shall be effective. (3) The rates, rating plans, rating rules, rating classifications and territories applicable to the insurance written by the association and statistics relating thereto shall be subject to Chapter 304, Subtitle 13 of the Kentucky Revised Statutes, giving due consideration to the past and prospective loss and expense experience for medical malpractice insurance written and to be written in this state, trends in the frequency and severity of losses, the investment income of the association, and such other information as the commissioner may require. All rates shall be on an actuarially sound basis, giving due consideration to the group retrospective rating plan and the stabilization reserve fund, and shall be calculated to be self-supporting. The commissioner shall make available to the association the loss and expense experience of insurers previously writing medical malpractice insurance in this state. (4) All policies issued by the association shall be subject to a nonprofit group retrospective rating plan to be approved by the commissioner, under which the final premium for all policyholders of the association as a group will be equal to the administrative expenses, loss and loss adjustment expenses and taxes, plus a reasonable allowance for contingencies and servicing. Policyholders shall be given full credit for all investment income, net of expenses and a reasonable management fee on policyholder supplied funds. The standard premium before retrospective adjustment for each policy issued by the association shall be established on the basis of the association's rates, rating plans, rating rules, rating classifications, and territories then in effect. The maximum final premium for all policyholders of the association as a group shall be limited as provided in KRS 304.40-060(4). Since the business of the association is subject to the nonprofit group retrospective rating plan required by this subsection, there shall be a presumption that the rates filed and premiums for the business of the association are not excessive. (5) The commissioner shall examine the business of the association as often as he or she deems appropriate to assure that the group retrospective rating plan is being operated in a manner consistent with this section. If he or she finds that it is not being so operated, he or she shall issue an order to the association, specifying in what respects its operation is deficient and stating what corrective action shall be taken. (6) The association shall certify to the commissioner the estimated amount of any deficit remaining after the stabilization reserve fund has been exhausted in payment of the maximum final premium for all policyholders of the association. Within sixty (60) days after such certification, the commissioner shall authorize the members of the association to commence recoupment of their respective shares of the deficit by applying a surcharge to be determined by the association at a rate not to exceed two percent (2%) of the annual premiums on future policies affording those kinds of insurance which form the basis for their participation in the association under procedures established by the association. The association shall amend the amount of its certification of deficit to the commissioner as the values of its incurred losses become finalized, and the members of the association shall amend their recoupment procedure accordingly. (7) In the event that sufficient funds are not available for the sound financial operation of the association, pending recoupment as provided in subsection (6) of this section, all members shall, on a temporary basis, contribute to the financial requirements of the association in the manner provided for in KRS 304.40-080. Any such contribution shall be reimbursed to the members by recoupment as provided in subsection (6) of this section. Effective: July 15, 2010 History: Amended 2010 Ky. Acts ch. 24, sec. 1537, effective July 15, 2010. -- Created 1976 Ky. Acts ch. 164, sec. 5, effective June 19, 1976.

KRS 304.40-060 Stabilization reserve fund -- Administration -- Charge -- Corporate trustee to hold moneys -- Refund

304.40-060. Stabilization reserve fund -- Administration -- Charge -- Corporate trustee to hold moneys -- Refund (1) There is hereby created a stabilization reserve fund which shall be administered by three (3) directors, one (1) of whom shall be the commissioner or the commissioner's deputy. The remaining two (2) directors shall be appointed by the commissioner. One (1) shall be a representative of the association; the other a representative of its policyholders. The directors shall serve without salary, but shall be reimbursed for actual and necessary expenses incurred in the performance of their duties when approved by the commissioner. (2) Each policyholder shall pay to the association a stabilization reserve fund charge equal to one-third (1/3) of each premium payment due for insurance through the association. Such charge shall be separately stated in the policy. The association shall cancel the policy of any policyholder who fails to pay the stabilization reserve fund charge. (3) The association shall promptly pay to the trustee of the fund all stabilization reserve fund charges which it collects from its policyholders and any retrospective premium refunds payable under the group retrospective rating plan authorized by KRS 304.40-050. (4) All moneys received by the fund shall be held in trust by a corporate trustee selected by the directors. The trustee may invest the trust fund, subject to the approval of the directors. All investment income shall be credited to the fund. All expenses of administration of the fund shall be charged against the fund. The trust fund shall be used solely for the purpose of discharging when due any retrospective premium charges payable by policyholders of the association under the group retrospective rating plan authorized by KRS 304.40-050. Payment of retrospective premium charges shall be made by the directors upon certification to them by the association of the amount due. If the trust fund is finally exhausted in payment of retrospective premium charges, all liability and obligations of the association's policyholders with respect to the payment of retrospective premium charges shall thereupon terminate and shall be conclusively presumed to have been discharged. Any moneys remaining in the fund after all such retrospective premium charges have been paid shall be returned to policyholders under procedures authorized by the directors. Effective: July 15, 2010 History: Amended 2010 Ky. Acts ch. 24, sec. 1538, effective July 15, 2010. -- Created 1976 Ky. Acts ch. 164, sec. 6, effective June 19, 1976.

KRS 304.40-070 Application for, and issuance of, medical malpractice insurance coverage

304.40-070. Application for, and issuance of, medical malpractice insurance coverage (1) Any licensed physician, hospital, or other licensed health care provider shall, on or after the effective date of the plan of operation, be entitled to apply to the association for medical malpractice insurance coverage. Such application may be made on behalf of an applicant by an agent authorized by the applicant. (2) If the association determines that the applicant meets the underwriting standards of the association as prescribed in the plan of operation and there is no unpaid, uncontested premium due from the applicant for prior insurance, then the association, upon receipt of the premium or such portion thereof as is prescribed in the plan of operation, shall cause to be issued a policy of medical malpractice insurance. Effective: June 19, 1976 History: Created 1976 Ky. Acts ch. 164, sec. 7, effective June 19, 1976.

KRS 304.40-075 Medical malpractice insurance for charitable health care providers -- Scope of coverage -- Premiums -- Registration of providers -- Review -- Availability of information

304.40-075. Medical malpractice insurance for charitable health care providers -- Scope of coverage -- Premiums -- Registration of providers -- Review -- Availability of information (1) As used in this section, unless the context requires otherwise: (a) "Charitable health care provider" has the same meaning as in KRS 216.940; (b) "Medical malpractice insurer" means every person or entity engaged as principal and as indemnitor, surety, or contractor in the business of entering into contracts to provide medical professional liability insurance, except an entity in the business of providing such medical professional liability insurance only to itself or its affiliated subsidiary, or parent corporation, or subsidiaries of its parent corporations; and (c) "Medical professional liability insurance" means insurance to cover liability incurred as a result of the hands-on providing of medical professional services directly to patients by an insured in the treatment, diagnosis, or prevention of patient illness, disease, or injury. (2) Insurers offering medical professional liability insurance in the Commonwealth shall make available, as a condition of doing business in the Commonwealth pursuant to this chapter, medical professional liability insurance for charitable health care providers and persons volunteering to perform medical services for charitable health care providers, with the same coverage limits made available to its other insureds. (3) (a) Premiums for policies issued under subsection (2) of this section shall be paid by the Commonwealth from the general fund upon written application for payment of the premium by the health care provider wishing to offer charitable services. A health care provider shall submit an application for payment of premium to the Department of Insurance no later than one (1) year from the expiration of the policy for which payment is being requested. (b) The Department of Insurance shall, through promulgation of administrative regulations pursuant to KRS Chapter 13A, establish reasonable guidelines for the registration of charitable health care providers. The guidelines shall require the provider to supply, at a minimum, the following information: 1. Name and address of the charitable health care provider; 2. Number of employees of the charitable health care provider who will be: a. Rendering medical care without compensation or charge and without expectation of compensation or charge; and b. Covered under the policy issued under subsection (2) of this section; 3. The expected number of patients to be provided charitable health care services in the year for which the insurer will offer malpractice coverage; 4. The charitable health care provider's acknowledgment that the insurer's risk management and loss prevention policies shall be followed; 5. A copy of the registration filed with the Cabinet for Health and Family Services under KRS 216.941; and 6. A copy of the medical malpractice policy, declaration page, and any other documentation the commissioner may deem necessary to determine the proper amount of premiums and taxes to be reimbursed. (c) Persons insured under this section shall be required to comply with the same risk management and loss prevention policies which the insurer imposes upon its other insureds. (d) Any premium refund for medical professional liability insurance issued under subsection (2) of this section received for any reason by the charitable health care provider shall be promptly remitted to the department for transmittal to the general fund. (4) This section shall only apply to charitable health care providers, and persons volunteering to perform medical services for charitable health care providers: (a) Who are not otherwise covered by any policy of medical professional liability insurance for the charitable health care services provided; and (b) That meet the terms for eligibility established pursuant to this section. (5) Coverage offered to charitable health care providers, and persons volunteering at charitable health care providers, shall be at least as broad as the coverage offered by the insurer to other noncharitable health care providers or facilities and to medical professionals working at noncharitable health care facilities. (6) The Department of Insurance shall retrospectively review on an annual basis the premiums paid pursuant to this section as opposed to the expenses incurred by the insurers covering risks under this section to determine if the profits made for those risks were consistent with reasonable loss ratio guidelines. If the determination is made that the profits were not consistent with reasonable loss ratio guidelines, the Department of Insurance shall determine the amount of the premiums to be refunded to the Commonwealth. (7) The Cabinet for Health and Family Services shall make available to the Department of Insurance information on its registration of charitable health care providers for the purpose of obtaining medical malpractice insurance. (8) The Department of Insurance shall not provide medical malpractice insurance as specified in subsection (3)(a) of this section to a charitable health care provider who has not registered with the Cabinet for Health and Family Services under KRS 216.941. Effective: June 29, 2021 History: Amended 2021 Ky. Acts ch. 63, sec. 2, effective June 29, 2021. -- Amended 2010 Ky. Acts ch. 24, sec. 1539, effective July 15, 2010; and ch. 166, sec. 12, effective July 15, 2010. -- Amended 2005 Ky. Acts ch. 99, sec. 580, effective June 20, 2005. -- Amended 2004 Ky. Acts ch. 62, sec. 2, effective July 13, 2004. -- Amended 2002 Ky. Acts ch. 351, sec. 13, effective July 15, 2002. -- Amended 2000 Ky. Acts ch. 64, sec. 3, effective July 14, 2000. -- Amended 1998 Ky. Acts ch. 505, sec. 6, effective July 15, 1998. -- Created 1996 Ky. Acts ch. 348, sec. 1, effective July 15, 1996. Legislative Research Commission Note (7/15/2010). A reference to the "Office of Insurance" in subsection (3) of this section, as amended by 2010 Ky. Acts ch. 166, sec. 12, has been changed in codification to the "Department of Insurance" to reflect the reorganization of certain parts of the Executive Branch, as set forth in Executive Order 2010-535 and confirmed by the General Assembly in 2010 Ky. Acts ch. 24. This change was made by the Reviser of Statutes pursuant to 2010 Ky. Acts ch. 24, sec. 1938.

KRS 304.40-080 Determination of insurer's participation in association

304.40-080. Determination of insurer's participation in association All insurers which are members of the association shall participate in its writings, expenses, servicing, allowance, management fees, and losses in the proportion that the net direct premiums of each such member, excluding that portion of premiums attributable to the operation of the association, written during the preceding calendar year, bears to the aggregate net direct premiums written in this state by all members of the association. Each insurer's participation in the association shall be determined annually on the basis of such net direct premiums written during the preceding calendar year, as reported in the annual statements and other reports filed by the insurer with the commissioner. Effective: July 15, 2010 History: Amended 2010 Ky. Acts ch. 24, sec. 1540, effective July 15, 2010. -- Created 1976 Ky. Acts ch. 164, sec. 8, effective June 19, 1976.

KRS 304.40-090 Board of directors -- Selection -- Qualifications

304.40-090. Board of directors -- Selection -- Qualifications The association shall be governed by a board of thirteen (13) directors. Five (5) directors shall be elected by the insurance companies which are members of the association, at a meeting of the member companies at a time and place designated by the commissioner, by cumulative voting of the member companies, whose vote shall be weighted in accordance with each member's net direct premiums written during the preceding calendar year. One (1) of these five (5) directors shall be from a member company domiciled in Kentucky. The commissioner shall appoint seven (7) directors, one (1) named by the Kentucky Medical Association; one (1) named by the Kentucky Bar Association; one (1) named by the Kentucky Hospital Association; one (1) who is a licensed resident property and casualty agent in Kentucky; and three (3) knowledgeable members of the public at large, who have no interest in any of the foregoing categories. The commissioner or the commissioner's designee shall serve as a director. Effective: July 15, 2010 History: Amended 2010 Ky. Acts ch. 24, sec. 1541, effective July 15, 2010. -- Created 1976 Ky. Acts ch. 164, sec. 9, effective June 19, 1976.

KRS 304.40-100 Appeal

304.40-100. Appeal (1) Any applicant to the association, any person insured pursuant to KRS 304.40-030 to 304.40-140, or their representatives, or any affected insurer, may appeal to the commissioner within thirty (30) days after any rule, action, or decision by or on behalf of the association, with respect to those items the plan of operation defines as appealable matters. Upon appeal, an administrative hearing shall be conducted in accordance with KRS Chapter 13B. (2) All final orders of the commissioner made pursuant to this subtitle are subject to appeal to the Franklin Circuit Court in accordance with KRS Chapter 13B. Effective: July 15, 2010 History: Amended 2010 Ky. Acts ch. 24, sec. 1542, effective July 15, 2010. -- Amended 1996 Ky. Acts ch. 318, sec. 246, effective July 15, 1996. -- Amended 1980 Ky. Acts ch. 188, sec. 248, effective July 15, 1980. -- Created 1976 Ky. Acts ch. 164, sec. 10, effective June 19, 1976.

KRS 304.40-110 Annual statement -- Commissioner may require additional information

304.40-110. Annual statement -- Commissioner may require additional information The association shall file in the office of the commissioner annually, on or before the first day of each March, a statement containing information with respect to its transaction, condition, operations, and affairs during the preceding year. Such statement shall contain such matters and information as are prescribed and shall be in such form as is approved by the commissioner. The commissioner may at any time require the association to furnish additional information with respect to its transactions, condition, or any matter connected therewith considered to be material and of assistance in evaluating the scope, operation, and experience of the association. Effective: July 15, 2010 History: Amended 2010 Ky. Acts ch. 24, sec. 1543, effective July 15, 2010. -- Created 1976 Ky. Acts ch. 164, sec. 11, effective June 19, 1976.

KRS 304.40-120 Annual examination of association

304.40-120. Annual examination of association The commissioner shall make an examination into the affairs of the association at least annually. Such examination shall be conducted and the report thereon filed in the manner prescribed in KRS Chapter 304, Subtitle 2. The expenses of such examinations shall be paid by the association in the manner prescribed by that subtitle. Effective: July 15, 2010 History: Amended 2010 Ky. Acts ch. 24, sec. 1544, effective July 15, 2010. -- Amended 1980 Ky. Acts ch. 188, sec. 249, effective July 15, 1980. -- Created 1976 Ky. Acts ch. 164, sec. 12, effective June 19, 1976.

KRS 304.40-130 Exemption from liability when acting in good faith

304.40-130. Exemption from liability when acting in good faith There shall be no liability on the part of, and no cause of action of any nature shall arise against the association, the commissioner or the commissioner's authorized representatives or any other person or organization, for any statements or actions made in good faith by them during any proceedings or concerning any matters within the scope of KRS 304.40-030 to 304.40-140. Effective: July 15, 2010 History: Amended 2010 Ky. Acts ch. 24, sec. 1545, effective July 15, 2010. -- Created 1976 Ky. Acts ch. 164, sec. 13, effective June 19, 1976.

KRS 304.40-140 Rights and privileges of directors of stabilization reserve fund

304.40-140. Rights and privileges of directors of stabilization reserve fund No member of the board of directors of the stabilization reserve fund who is otherwise a public officer or employee shall suffer a forfeiture of his office or employment or any loss or diminution in the rights and privileges appertaining thereto, by reason of membership on the board of directors of the stabilization reserve fund. Effective: June 19, 1976 History: Created 1976 Ky. Acts ch. 164, sec. 14, effective June 19, 1976.

KRS 304.40-250 Legislative purposes

304.40-250. Legislative purposes It is the purpose of KRS 304.40-260 to 304.40-320 to promote the health and general welfare of the inhabitants of the Commonwealth through the adoption of reforms in health care malpractice claims. Such purpose is hereby declared to be a public purpose for which public funds may be expended. Effective: July 13, 1984 History: Amended 1984 Ky. Acts ch. 322, sec. 17, effective July 13, 1984. -- Created 1976 Ky. Acts ch. 163, sec. 1, effective July 1, 1976.

KRS 304.40-260 Definitions

304.40-260. Definitions As used in KRS 304.40-250 to 304.40-320, the following words and terms shall be defined as follows: (1) "Health care provider" means any physician, osteopath, dentist, podiatrist, nurse or nurse's assistant, certified registered nurse anesthetist, physical or occupational therapist, or psychologist, licensed to practice health care in this state; any hospital, medical clinic, medical foundation, health maintenance organization, extended care facility, intermediate care facility, nursing home, emergency treatment center, outpatient medical or surgical center, frontier nursing service, or any other facility or service licensed under any act of this state to provide health care within this state; or any officer, director, employer agent thereof; and any corporation, partnership or sole proprietorship which directly provides medical services to its employees; (2) "Commissioner" means the commissioner of the Department of Insurance; (3) "Patient" means a natural person who receives health care from a licensed health care provider under a contract, express or implied; (4) "Claimant" means the patient or spouse, parent, guardian, trustee, or other authorized agent of the patient; (5) "Tort" means any legal wrong, breach of duty, or negligent or unlawful act or omission proximately causing injury or damage to another; (6) "Malpractice" means any tort or breach of contract based on health care or professional services rendered, or which should have been rendered, by a health care provider to the patient; (7) "Health care" means any act, or treatment performed or furnished, or which should have been performed or furnished, by any health care provider to a patient during that patient's care, treatment, or confinement for a physical or mental condition; and (8) "Malpractice insurer" means any insurance authority or any insurance company properly engaged in the practice of writing malpractice liability insurance under authority of the commissioner of insurance. Effective: July 15, 2010 History: Amended 2010 Ky. Acts ch. 24, sec. 1546, effective July 15, 2010. -- Amended 1984 Ky. Acts ch. 322, sec. 18, effective July 13, 1984. -- Created 1976 Ky. Acts ch. 163, sec. 2, effective July 1, 1976.

KRS 304.40-270 Repealed, 1986

304.40-270. Repealed, 1986 Catchline at repeal: Limitation on prayer for damages in malpractice action. History: Repealed 1986 Ky. Acts ch. 331, sec. 63, effective July 15, 1986. -- Created 1976 Ky. Acts ch. 163, sec. 3, effective July 1, 1976.

KRS 304.40-280 Advance payment by defendant

304.40-280. Advance payment by defendant (1) In any malpractice action against any health care provider, no payment made or offered by or on behalf of the health care provider to the claimant to meet the reasonable expenses of health care, custodial care, loss of earnings, rehabilitation care, or other essential goods or services, shall constitute or be evidence of an admission of liability on the part of such health care provider, and no such payment or offer shall be admissible in evidence in any such action, except after a verdict for the purpose of offsetting any damages awarded. The court shall reduce the amount of any judgment for damages awarded in such malpractice action by the amount of any advance payment made by any defendant health care provider or malpractice insurer on behalf of such defendant health care provider to the claimant. (2) In any malpractice action where there is more than one (1) defendant health care provider, and in the event an advance payment made by or on behalf of one (1) or more of said defendants exceeds the respective liability of said defendant making it, the court shall order any adjustment necessary to equate with its percentage liability the amount which said defendant is obligated to pay, exclusive of costs. (3) In no case shall an advance payment in excess of any award of damages be repayable by the claimant. Effective: July 1, 1976 History: Created 1976 Ky. Acts ch. 163, sec. 4, effective July 1, 1976.

KRS 304.40-290 Instructions to jury in case having multiple defendants

304.40-290. Instructions to jury in case having multiple defendants In any malpractice action in which more than one (1) health care provider is named as a defendant concerning a single injury, the jury shall be instructed that it may apportion damages in different percentages against the defendants or may return a verdict of joint and several liability against two (2) or more defendants. Effective: July 1, 1976 History: Created 1976 Ky. Acts ch. 163, sec. 5, effective July 1, 1976.

KRS 304.40-300 Limitation on malpractice liability

304.40-300. Limitation on malpractice liability No malpractice liability shall be imposed upon any health care provider on the basis of an alleged breach of any guaranty, warranty, contract or assurance of results to be obtained from any procedure undertaken in the course of providing health care, unless such guaranty, warranty, contract or assurance is in writing and signed by the provider. Effective: July 1, 1976 History: Created 1976 Ky. Acts ch. 163, sec. 6, effective July 1, 1976.

KRS 304.40-310 Settled or adjudicated claims -- Report -- Approval of commissioner

304.40-310. Settled or adjudicated claims -- Report -- Approval of commissioner (1) All malpractice claims settled or adjudicated to final judgment against a health care provider shall be reported to the commissioner of insurance by the malpractice insurer of the health care provider or the health care provider if self-insured, within sixty (60) days following final settlement or disposition of the claim. The report to the commissioner shall recite the following: (a) Name and address of health care provider involved; (b) Name and address of claimant; (c) Nature of the claim; (d) Damages asserted and alleged injury; and (e) The amount of any settlement or judgment. (2) The commissioner of insurance shall forward the name of every health care provider against whom a settlement is made or judgment is rendered to the appropriate licensure board or regulatory agency for review of the fitness of the health care provider to practice his or her profession. (3) (a) At any time before a jury is empanelled or before a trial is commenced by a court without a jury, no settlement or other compromise of any claim for malpractice shall be effective between a claimant and the fund unless the proposed settlement or other compromise shall have been approved by the commissioner. (b) The commissioner shall prescribe by rule the procedure for submission of settlements or other compromises involving the fund. (c) If the commissioner shall disapprove a proposed settlement or other compromise involving the fund, the claimant may thereafter pursue his or her interests in a court of appropriate jurisdiction and the action of the commissioner shall not be admissible upon any trial of the action. (d) Notwithstanding the provisions of KRS 413.140, when an offer to compromise or settle has been filed with the commissioner the statute of limitations made and provided for the commencement of an action for malpractice shall not bar any such action until ninety (90) days after notice to the parties of the commissioner's disapproval of any proposed settlement or other compromise. Effective: July 15, 2010 History: Amended 2010 Ky. Acts ch. 24, sec. 1547, effective July 15, 2010. -- Created 1976 Ky. Acts ch. 163, sec. 7, effective July 1, 1976.

KRS 304.40-320 Informed consent -- When deemed given

304.40-320. Informed consent -- When deemed given In any action brought for treating, examining, or operating on a claimant wherein the claimant's informed consent is an element, the claimant's informed consent shall be deemed to have been given where: (1) The action of the health care provider in obtaining the consent of the patient or another person authorized to give consent for the patient was in accordance with the accepted standard of medical or dental practice among members of the profession with similar training and experience; and (2) A reasonable individual, from the information provided by the health care provider under the circumstances, would have a general understanding of the procedure and medically or dentally acceptable alternative procedures or treatments and substantial risks and hazards inherent in the proposed treatment or procedures which are recognized among other health care providers who perform similar treatments or procedures; (3) In an emergency situation where consent of the patient cannot reasonably be obtained before providing health care services, there is no requirement that a health care provider obtain a previous consent. Effective: July 1, 1976 History: Created 1976 Ky. Acts ch. 163, sec. 8, effective July 1, 1976.

KRS 304.40-330 Repealed, 1984

304.40-330. Repealed, 1984 Catchline at repeal: Kentucky patients' compensation fund -- Membership -- Professional liability insurance -- Assessments. History: Repealed 1984 Ky. Acts ch. 322, sec. 20, effective July 13, 1984. -- Amended 1978 Ky. Acts ch. 155, sec. 41, effective June 17, 1978. -- Created 1976 Ky. Acts ch. 163, sec. 10, effective July 1, 1976.

Source: Kentucky Legislative Research Commission (legislature.ky.gov)URL: https://apps.legislature.ky.gov/law/statutes/chapter.aspx?id=38758Fetched: 10/20/2026