Kentucky Law Update to Insureds: Certificates of Merit

The law in Kentucky is ever evolving, especially in recent years as the Kentucky Legislature has attempted to enact what has been referred to as “tort reform.” In 2017, Kentucky enacted its own version of a Medical Review Panel, which required plaintiffs to file a proposed complaint with the MRP, which would then be reviewed by a panel of three healthcare providers before a lawsuit could be filed in court. This process was later deemed unconstitutional by the Kentucky Supreme Court and the system was abolished in 2019. Shortly after, on June 27, 2019, the Kentucky Legislature enacted a new statute, KRS 411.167, requiring a certificate of merit to accompany the filing of all medical malpractice complaints. Theoretically, it would ensure that any case has been reviewed by a qualified medical professional before a lawsuit is filed. This is the latest attempt by Kentucky to institute some version of tort reform in the Commonwealth. 

What is a certificate of merit?

According to the statute, a certificate of merit is an affidavit or declaration that states one of three things:
 
1. The claimant has reviewed the facts of the case and consulted with at least one expert qualified under Kentucky law to comment on the standard of care or negligence and concluded, based on that review, that there is a reasonable basis to proceed with the action, OR
2. The claimant could not obtain a consultation before the timeframe allowed to file this action expired. If this is the case, the affidavit or declaration must be supplemented with an affidavit or declaration from a qualified expert (described above) within 60 days after service of the complaint, or the lawsuit will be dismissed unless an extension is granted by the court for good cause, OR
3. The claimant could not obtain a consultation because the claimant or his attorney made at least three separate good-faith attempts with three different qualified experts to consult on the matter and none of those experts would agree to a consultation, so long as none of those qualified experts gave an opinion that there was not a reasonable basis to file the lawsuit.

When is a certificate of merit required?

A certificate of merit is required in all medical malpractice claims, unless the claimant intends to rely on one or more causes of action in which expert testimony is not required. Some examples given under the statute are cases of res ipsa loquitur (meaning the occurrence of an accident automatically implies negligence) or claims for lack of informed consent. There will be some cases where plaintiffs will try to argue that their case does not require a certificate of merit because it is dealing with a claim that is so straightforward and clear it does not require expert testimony to aid in the explanation of malpractice to a jury. However, in most traditional medical malpractice cases, a certificate of merit will be required. 

What does this mean for you?

The intent behind the statute is to limit the number of frivolous cases filed in the medical malpractice context. While plaintiff attorneys should not be filing lawsuits without a good faith basis in the first place, the hope is that the requirement of a sworn affidavit that a medical professional has reviewed the case and opined it has merit will limit the number of lawsuits filed and prevent a lawsuit from being filed against numerous healthcare providers, only to be voluntarily dismissed at a later date. Ultimately, once a lawsuit is filed with a certificate of merit, it does not change the course of the litigation process. The consulting expert does not need to be identified at the time the lawsuit is filed. In fact, that consulting expert may never be identified. The consulting expert does not have to be the same person identified in expert disclosures. If a certificate of merit is not filed, your lawyer can move the Court to dismiss the case. Currently, judges appear to differ on their response to these types of motions. Some judges might agree and dismiss the case, while other judges may be more lenient and allow additional time to file the required certificate of merit. If the plaintiff ultimately files the certificate of merit, the case will move forward. If not, the case could potentially get dismissed.

You can find a copy of the entire statute here:

https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=49312

What if I am asked to review a case?

Typically, a competent plaintiff’s lawyer will hire an expert medical professional to review a case before a lawsuit is filed. This expert is compensated for his/her time reviewing the file. However, there might be times where a plaintiff lawyer tries to satisfy the requirements of this new law by having a treating physician review a plaintiff’s medical records and serve as this pre-suit expert. Please contact our office if you have been contacted by a patient or patient’s attorney about reviewing records and have questions about this process.