Tell it Like it is Doctor: A Discussion of Reasonable Medical Probability in Kentucky

The concern is with law cases arising out of a client's complaints subsequent to an accident which cannot be related directly back to this accident. A discussion is presented of what the plaintiff under the Ky laws must prove in any personal injury negligence action. Often the testimony by the Med expert is vague, uncertain, & confusing. The study of the causes of injury or disease in medicine is known as "etiology." The attorney has to try to prove the etiology of his client's injury. Various cases are examined. Future damages, ie, future Med expenses, loss of earning capacity & future pain & suffering involve a prediction of the future Med course of the patient. The evidence is discussed which the plaintiff must introduce to sustain his burden of proof if he is to get an instruction authorizing recovery for these future damages. Courts do not favor reopening cases for newly discovered evidence. While reasonable Med probability is the test in Ky, in both the area of causation & the area of future damage, no cases really define "probability." The MD can testify any way he likes, & his testimony will then be examined in its total context to see whether the probability test has been satisfied. If it has been satisfied on causation, the plaintiff will get a liability instruction & the case will go to the jury. If it has on future damages, the plaintiff will get instructions on future Med expenses, loss of earning capacity, & future pain & suffering. If probability is defined as "more likely than not" this would be an acceptable standard in the area of causation but might work hardship in the area of future damage. A possible remedy for such hardship would be to allow the plaintiff to reopen, but Ky law at present really precludes this possibility. M. Maxfield.