Kentucky’s “Certificate of Merit” Requirement for Medical Malpractice Claims Explained
A medical malpractice claim is one of the most complicated types of lawsuits in Kentucky. As a victim of medical malpractice, you are at a disadvantage; you may not understand the laws connected to your case, but a hospital and its legal team will. Hiring a medical malpractice lawyer to represent you is the best way to protect your rights. A lawyer can help you navigate all of Kentucky’s medical malpractice laws, including the certificate of merit requirement.
What Is Kentucky’s Certificate of Merit Requirement?
Under Kentucky Revised Statutes, Section 411.167, a claimant who wishes to file a medical malpractice claim must file a certificate of merit with the complaint in the court in which the action is commenced. The law defines a “certificate of merit” as an affidavit or declaration that the claimant has consulted with at least one qualified medical expert as to the standard of care, and the expert has concluded that there is a reasonable basis to commence the action.
The expert must be qualified to give expert testimony under the Kentucky Rules of Civil Procedure and the Kentucky Rules of Evidence, and who the claimant (or his or her lawyer) reasonably believes is knowledgeable in the issues that are relevant to the legal action. For example, if the medical malpractice case involves an alleged surgical error, a relevant and qualified medical expert might be a professional surgeon.
Are There Exceptions to the Rule?
Yes. A claimant may proceed with a medical malpractice claim in Kentucky without presenting a certificate of merit if he or she is unable to obtain the required consultation due to the statute of limitations being too soon to allow for the consultation to be completed. Kentucky has one of the shortest medical malpractice statutes of limitations: just one year from the date of the alleged act of malpractice. If the claimant does not have enough time to receive a consultation from a medical expert before the time limit will expire, he or she will be given 60 days after filing the lawsuit to get one.
There is another exception if the claimant or his or her attorney made at least three good-faith attempts with three different experts to obtain a consultation to satisfy the certificate of merit requirement but none of the experts agreed to the consult, as long as none of the experts gave their opinion that there was no reasonable basis to commence the legal action. Finally, a certificate of merit is not required if the claimant intends to rely solely on a legal argument that does not require expert testimony, such as “lack of informed consent.”
How Have Kentucky’s Medical Malpractice Laws Recently Changed?
Kentucky’s current certificate of merit requirement for filing a medical malpractice claim has not always been the law. In 2017, Kentucky passed the Medical Review Panel Act, which required a three-person panel to evaluate the merits of a proposed case before a medical malpractice lawsuit could be filed. In November 2018, the Medical Review Panel Act was ruled unconstitutional on the grounds that it prevented public access to the courts. Then, in 2019, the state enacted its current certificate of merit law through House Bill 429, which went into effect on June 27, 2019.
How to Get a Certificate of Merit in Kentucky
If you wish to file a medical malpractice claim in Kentucky, the best way to proceed is by contacting an experienced medical malpractice attorney. An attorney who specializes in this type of case will understand all of the state’s related laws, including how to meet Kentucky’s certificate of merit requirement.
Your lawyer will have access to relevant and qualified medical experts who can carry out your consultation and perform a case review, for example – making the process easier for you during this difficult time. Your lawyer can contact one or more experts for you to satisfy the certificate of merit requirement while you focus on healing.