In 2017, in an effort to prevent “frivolous” lawsuits, the Commonwealth of Kentucky’s General Assembly passed the Medical Review Panel Act (MRP). The Act created a panel of healthcare providers to review prospective malpractice lawsuits, ensuring that qualified experts agreed that malpractice likely occurred before allowing a lawsuit to proceed. In 2018, the Kentucky Supreme Court held that this legislation was unconstitutional as it violated the guarantee of open courts provision of the Kentucky Constitution.1
In 2019, the General Assembly passed the Certificate of Merit Statute (KRS 411.167), which requires the plaintiff at the outset of the litigation to certify that that the matter has been reviewed by a qualified expert, and that after examining that review, the claimant has decided that there is some reasonable basis to allow the lawsuit to proceed. Like the MRP, the Certificate of Merit was an attempt to ensure that a potential claimant obtain an expert review prior to filing a lawsuit. Most medical malpractice claims require an expert to testify that the medical provider erred, and that the error led to a patient’s injury. These necessary elements are defined as (1) breach of the standard of care (what a reasonably competent provider would do under the same or similar circumstance) and (2) causation. Both elements are necessary to succeed under a malpractice claim.
Certificate of Merit Does Not Prove Malpractice
The lack of substantive requirements for the expert review makes it difficult under the statute to effectively gauge whether lawsuits should or should not proceed.
First, the Certificate of Merit statute does not actually require an expert to opine that a defendant medical provider breached the standard of care and caused injury, nor does it provide the opinion be used as expert testimony in court. Instead, it requires at best a cursory analysis by an expert witness, which is not subject to review or validation by anyone other than the claimant.
Second, even if multiple specialties are involved, the claimant must only consult with one expert in any field; for example, a neurosurgeon could opine about the care provided by a radiologist.
Third, the consulting expert does not even have to believe that the providers breached the standard of care; instead, the claimant must only believe the lawsuit has a reasonable basis to proceed. “The claimant has reviewed the facts of the case and has consulted with at least one (1) expert . . . and has concluded on the basis of review and consultation that there is a reasonable basis to commence the action.” Therefore, under this plain language, it is sufficient if only the claimant believes that the lawsuit should proceed, not whether there is sufficient expert proof to support the lawsuit.
The Certificate of Merit statute itself also has numerous exceptions, including filing a claim that does not require expert proof, i.e., a retained sponge, or the inability to obtain the necessary medical records for a review in a timely fashion. However, the courts have generally determined that the Certificate of Merit is required to be filed with the complaint. If it is not attached at the outset, then the complaint should be dismissed.
What’s Next for the Certificate of Merit Requirement?
Enough time has passed since the statute was enacted for the appellate courts in the
There are currently two opinions pending before the Kentucky Supreme Court that may alter the effectiveness of the Certificate of Merit Statute in weaning out frivolous lawsuits.
Commonwealth of Kentucky to provide guidance on it. In a federal case styled Dumphord v. Gabriel, Federal Judge Danny Reeves dismissed the medical negligence claim against the defendant hospital because the plaintiff failed to attach the required Certificate of Merit. In Judge Reeves’ opinion, the Certificate of Merit Statute required either the certificate of merit be attached to the complaint or expert information be provided at the time of filing of the complaint. Without this necessary information, the lawsuit cannot proceed. A similar result was reached in a Kentucky Court of Appeals’ opinion, Evans v. Baptist Health Madisonville, where the Court of Appeals found that the failure to attach the Certificate of Merit required dismissal of the lawsuit.
However, there are currently two opinions pending before the Kentucky Supreme Court (the highest court in the Commonwealth of Kentucky) that may alter the effectiveness of the Certificate of Merit Statute in weaning out frivolous lawsuits. Moreover, with the departure of Senator Ralph Alvarado, MD, from the General Assembly, it is unknown if further legislative attempts to shield medical providers from a lawsuit will be forthcoming.
The two opinions being actively litigated before the Kentucky Supreme Court are Sanchez v. McMillin and McWhorter v. Baptist Healthcare System, Inc. The issue in both cases is whether a motion can be filed shortly after the complaint, asking the trial court to allow additional time to file the Certificate of Merit. In McWhorter, the Court of Appeals affirmed the lower court’s decision dismissing the medical negligence claim because the plaintiff failed to attach the required Certificate of Merit. In Sanchez, the Court of Appeals determined that a litigant could file a motion, and the trial court would have the discretion to allow the late filing, as long as the litigant could show “excusable neglect.” That could include being unable to find a relevant expert, or their expert not completing a timely review. Quite possibly, the Certificate of Merit decisions will only have an effect upon pro se litigants (plaintiffs without an attorney), as they will likely find it difficult to navigate these claims and provide the certificate required without being allowed the late filing option.
We expect the Supreme Court will rule on this issue in the next four to six months, offering the definitive opinion on whether further exceptions are allowed for litigants to meet the requirements of the statute. This should not make a major difference in the number of malpractice lawsuits, but it could have an effect on the number of cases dismissed early in the proceedings.
Andrew D. DeSimone is a medical malpractice defense attorney with Sturgill, Turner, Barker & Moloney, PLLC, and chair of the firm’s healthcare law practice group. He can be reached at adesimone@ sturgillturner.com or 859.255.8581. This article is intended to be a summary of state or federal law and does not constitute legal advice.