Kentucky Enacts Certificate of Merit Requirement for Filing Medical Liability Cases

The Kentucky General Assembly has enacted KRS 411.167 which now requires a claimant commencing any civil action against a healthcare provider, or long-term care facility, to file a “certificate of merit” when the complaint is filed. This new requirement applies to any new lawsuits against healthcare professionals including doctors, nurses, or hospitals, filed after June 27, 2019. The new statute requires that the plaintiff must file a certificate of merit which reflects that they consulted with at least one expert who is qualified to give expert opinions as to the standard of care or negligence and that the expert concluded that there is a reasonable basis to commence the action. A single certificate of merit is sufficient even if there have been multiple defendants named.

Like any statute, there are exceptions. The claimant does not have to file a certificate of merit if the claimant was unable to obtain the expert consultation required because the applicable statute of limitations was about to expire. In that case, the certificate has to be supplemented regarding the consultation of an expert within 60 days after service of the complaint.

A certificate of merit is not required where the claimant intends to rely solely on causes of action in which expert testimony would not be required such as claims of res ipsa loquitur or lack of informed consent. Also, in a situation where the claimant has made a request for his medical records but has not received those records, the claimant is not required to file a certificate of merit until 90 days after the records have been produced.

This new statute will give healthcare defendants the opportunity to file a motion to dismiss if the complaint does not include the appropriate certificate of merit, or some exception thereto. Obviously, the intention of the legislation was to require plaintiff’s counsel to have actually conferred with an expert, pre-suit, and to have obtained an opinion that there was a reasonable basis to commence the action. It will be interesting to see if the effect of this new legislation will truly decrease the number of medical liability cases filed against healthcare providers and long-term care facilities.