New Ky. Supreme Court Ruling on Certificates of Merit: "Strict Compliance is Required"
Late last week, the Supreme Court of Kentucky issued two opinions pertaining to KRS 411.167, Kentucky’s Certificate of Merit Statute.[1] The Kentucky General Assembly promulgated this statute in 2019 to alleviate the initiation of frivolous lawsuits against medical professionals.
Generally, the statute requires a plaintiff to 1) consult with an expert witness prior to filing a Complaint against a medical entity or professional and then 2) file an affidavit certifying that the expert supports the case against the defendant. These two cases brought the interpretation of KRS 411.167 to the Supreme Court of Kentucky for the first time. The Court addressed several issues on appeal.
Bottom Line:
“The Court stated that ‘the trial court cannot consider lesser sanctions for failing to comply with a statute when we have held that strict compliance is required.’ These cases emphasize that strict compliance with KRS 411.167 is required for litigants suing a physician in Kentucky.”
First, in Sanchez v. McMillin, et al., Sanchez argued the statute only applies to pro se litigants, and not litigants with counsel, as evidenced by the language in KRS 411.167(1) stating that “claimants” shall provide a certificate of merit. The Supreme Court rejected this argument, reasoning that the language in KRS 411.167(2) provided that the claimant or his or her counsel must comply with the statute. Additionally, the Supreme Court stated that if the General Assembly meant for the statute to only apply to pro se litigants, it would have expressly said so in the language of the statute.
The Court next addressed whether the KRS 411.167 is a “directory” or “mandatory” statute. Sanchez argued that when he answered the Defendants’ discovery, he provided the same information required of the certificate of merit, and therefore he substantially complied with the statute, even if his compliance was delayed. Relying on a case from the U.S. District Court for the Eastern District of Kentucky, the Supreme Court of Kentucky reasoned that if substantial compliance with the statute was sufficient, the statute would be rendered toothless.[2] Therefore, strict compliance with the statute is mandatory.
The third issue before the Court in Sanchez was similar to the issue before the Court in McWhorter. Both Sanchez and McWhorter address the timing of the certificate of merit, and whether a plaintiff is entitled to an extension of time to file a certificate of merit. While the issue in front of the trial court in McWhorter was not properly preserved on appeal, the Court nevertheless noted that KRS 411.167(7) requires the certificate of merit to be filed with the Complaint, and not after the Complaint. Likewise, in Sanchez, the Court reiterated that strict compliance with the language of the statute is required. Indeed, the Court stated that “the trial court cannot consider lesser sanctions for failing to comply with a statute when we have held that strict compliance is required.”
These cases emphasize that strict compliance with KRS 411.167 is required for litigants suing a physician in Kentucky. This is to the benefit of physicians and medical entities in the Commonwealth of Kentucky, as it provides another potential avenue of early dismissal should a plaintiff fail to comply with the language of the statute.
Maddie Loeffler is a medical negligence defense and healthcare law attorney with Sturgill, Turner, Barker & Moloney, PLLC. She can be reached at mloeffler@sturgillturner.com or 859.255.8581.
This article is intended as a summary of state and/or federal law and does not constitute legal advice.
[1] Mario Sanchez v. Rodney McMillin, M.D.; Community Medical Associates, Inc. d/b/a Norton Immediate Care Centers-Highlands; and Natalie Kelsey, M.D., No. 2022-SC-0272-DG and No. 2022-SC-0274-DG (Ky. Feb. 15, 2024, to be published); Hugh Keith McWhorter and Carol McWhorter v. Baptist Healthcare System, Inc. d/b/a Baptist Health Lexington, 2022-SC-0354-DG (Ky. Feb. 15, 2024, to be published).
[2] Dumphord v. Gabriel, No. 5:20-461-DCR, 2021 WL 3572658, at *5 (E.D. Ky. Aug. 12, 2021).
