KRS § 411.167 — KY Code / Title XXXVI / Chapter 411 / Section 411.167
411.167 Certificate of merit for medical malpractice actions
Status: in_force

411.167 Certificate of merit for medical malpractice actions.

(1) A claimant commencing any action identified in KRS 413.140(1)(e), or against a

long-term-care facility as defined in KRS 216.510 alleging that the long-term-care

facility failed to provide proper care to one (1) or more residents of the facility, shall

file a certificate of merit with the complaint in the court in which the action is

commenced.

(2) "Certificate of merit" means an affidavit or declaration that:

(a) The claimant has reviewed the facts of the case and has consulted with at least

one (1) expert qualified pursuant to the Kentucky Rules of Civil Procedure

and the Kentucky Rules of Evidence who is qualified to give expert testimony

as to the standard of care or negligence and who the claimant or his or her

counsel reasonably believes is knowledgeable in the relevant issues involved

in the particular action, and has concluded on the basis of review and

consultation that there is reasonable basis to commence the action;

(b) The claimant was unable to obtain the consultation required by paragraph (a)

of this subsection because a limitation of time established by KRS Chapter

413 would bar the action and that the consultation could not reasonably be

obtained before that time expired. An affidavit or declaration executed

pursuant to this paragraph shall be supplemented by an affidavit or declaration

pursuant to paragraph (a) of this subsection or paragraph (c) of this subsection

within sixty (60) days after service of the complaint or the suit shall be

dismissed unless the court grants an extension for good cause; or

(c) The claimant was unable to obtain the consultation required by paragraph (a)

of this subsection because the claimant or his or her counsel had made at least

three (3) separate good-faith attempts with three (3) different experts to obtain

a consultation and that none of those contacted would agree to a consultation;

so long as none of those contacted gave an opinion that there was no

reasonable basis to commence the action.

(3) A single certificate of merit is required for an action even if more than one (1)

defendant has been named in the complaint or is subsequently named.

(4) A certificate of merit is not required where the claimant intends to rely solely on

one (1) or more causes of action for which expert testimony is not required,

including claims of res ipsa loquitur and lack of informed consent, in which case the

complaint shall be accompanied by an affidavit or declaration that no cause of

action is asserted for which expert testimony is required.

(5) If a request by the claimant for the records of the claimant's medical treatment by

the defendants has been made and the records have not been produced, the claimant

shall not be required to file a certificate of merit under this section until ninety (90)

days after the records have been produced. For purposes of this section, "records"

includes but is not limited to paper or electronic copies of dictations, video

recordings, fetal heart monitor strips, and imaging studies.

(6) The identity and statements of an expert relied upon in subsection (2) of this section

above are not discoverable, except:

(a) When a claim is made under subsection (2)(c) of this section that the claimant

was unable to obtain the required consultation with an expert, the court, upon

the request of a defendant made prior to compliance by the claimant with this

section, may require the claimant to divulge to the court, in camera and

without disclosure by the court to any other party, the names of the physicians

refusing to consult; or

(b) If any party to an action hereto prevails on the basis of the failure of an

opposing party to offer any competent expert testimony, the court may, upon

motion, for good cause shown compel the opposing party or party's counsel to

provide to the court the name of any expert consulted and any written

materials relied upon in executing the certificate.

(7) The claimant, in lieu of serving a certificate of merit, may provide the defendant or

defendants with expert information in the form required by the Kentucky Rules of

Civil Procedure. Nothing in this section requires the disclosure of any "consulting"

or nontrial expert, except as expressly stated in this section.