What Are Requirements for a Medical Malpractice Lawsuit in Kentucky?
If you get hurt because of a medical practitioner’s negligence or failure to use the appropriate standards of care, you may be entitled to financial compensation through a medical malpractice lawsuit. This is one of the most complex types of personal injury claims in Kentucky. For a valid and successful claim to damages, you or your lawyer must satisfy multiple medical malpractice requirements.
Statute of Limitations
First, you must file a medical malpractice claim before your statute of limitations expires. The statute of limitations is a legal deadline for commencing a cause of action. Kentucky has one of the shortest statutes of limitations in the country; you only have one year from the date of the alleged act of medical malpractice to file your lawsuit with the civil courts, in most cases.
Limited circumstances will toll, or pause, this statute of limitations. If you are bringing a claim on behalf of an injured minor, for example, such as in a birth injury lawsuit, you have one year from the date that the minor turns 18. If you do not discover your injury or its connection to medical malpractice right away, you will have one year from the date of reasonable discovery.
Certificate of Merit Requirement
In Kentucky, state law (Kentucky Revised Statute, Section 411.167) requires all claimants to file certificates of merit along with their medical malpractice claims. A certificate of merit, also referred to as an affidavit of merit, is a document signed by a relevant and qualified expert stating that he or she has reviewed the facts of the case and concluded that there is a reasonable basis to commence the cause of action.
An expert is someone who is qualified to testify about a subject based on extensive experience or knowledge. Typically, the expert used must be relevant to the subject of the cause of action. A claim brought on the basis of an anesthesia error, for example, will most likely need the expert opinion of an anesthesiologist for relevance.
There are some scenarios where a certificate of merit is not legally required. For example, if the claim is based on an argument that does not need medical testimony to prove – such as lack of informed consent – the plaintiff will not need to provide an affidavit of merit. The certificate of merit requirement replaced Kentucky’s medical review panel law, which was passed in 2017 and ruled unconstitutional in 2018.
Elements of Proof
A medical malpractice claim in Kentucky must be proven by the plaintiff or filing party. The burden of proof is a “preponderance of the evidence,” which is also known as the “more likely than not” standard. It requires enough clear and convincing evidence to convince a jury that the defendant is more likely than not responsible for the plaintiff’s injury or harm. A medical malpractice claim consists of four elements of proof:
- Duty of care: a legal responsibility owed to the plaintiff through a doctor-patient relationship established with the defendant.
- Breach of duty: an act or omission that violated the defendant’s duty of care to the plaintiff or fell short of the medical industry’s required standards of care.
- Damages: losses suffered by the plaintiff, such as an injury, permanent disability, lost wages, medical bills or emotional distress.
- Causation: a direct link between the plaintiff’s injuries or losses and the medical provider’s breach of the standard of care.
These are the elements of negligence, or the failure of a health care provider to meet the medical standards of care. If a doctor knowingly violates the duty of care, it is known as medical malpractice. Both types of torts can qualify an injured patient for financial compensation through a lawsuit in Kentucky. If you believe you have grounds for a medical malpractice lawsuit, don’t hesitate to contact an attorney for assistance navigating all of the state’s requirements.