RENDERED: MAY 27, 2022; 10:00 A.M. NOT TO BE PUBLISHED 

# Commonwealth of Kentucky Court of Appeals

NO. 2021

- CA

- 0844

- MR

HUGH KEITH MCWHORTER AND CAROL MCWHORTER APPELLANTS

v. APPEAL FROM FAYETTE CIRCUIT COURT

HONORABLE ERNESTO SCORSONE, JUDGE

ACTION NO. 21

- CI

- 00532

BAPTIST HEALTHCARE SYSTEM, INC. D/B/A BAPTIST HEALTH LEXINGTON APPELLEE

OPINION AFFIRMING
**   **  **
BEFORE: DIXON, JONES, AND K. THOMPSON, JUDGES. DIXON, JUDGE: Hugh Keith Mc W horter ( “ Keith ” ) a nd Carol Mc W horter (collectively, “the McWhorters”) appeal from the June 24, 2021, order of the Fayette Circuit Court dismissing their complaint. Following a careful review of the record, briefs, and law , we affirm.- 2

-

BACKGROUND FACTS AND PROCEDURAL HISTORY
Keith was admitted for surgery at Baptist Health Lexington (“Baptist Health”). A few days into his recover y , Keith’s health declined , and i t was almost six weeks before he was discharged from the hospital.

Nearly a year later , the McWhorter s sued Baptist Healt h for medical negligence and loss of consortium . However, their complaint was not accompanied by a certificate of merit or another acceptable alternative as required by KRS 1 411.167.

Baptist Health moved the trial court to dismiss the McWhorters’

comp laint for failure to comply with KRS 411.167 . After the matter was fully briefed, 2 the McWhorters filed a certificate of merit , and a hearing was he l d. T he trial court found the McWhorters’ complaint did not comply with KRS 411.167
and dismissed it with prejudice. This appeal followed.
STANDARD OF REVIEW
C onstruction and application of statutes is a matter of law. KL & JL
Invs

. , Inc. v. Lynch , 472 S.W.3d 540 (Ky. App. 2015). W e review questions of law

1 Kentucky Revised Statu t es.

2 Along with their response to Baptist Health’s motion to dismiss, the McWhorters moved the trial court to extend the time in which they could file their certificate of merit.- 3

-

de novo with no defer ence to the trial court ’ s application of the law. Cinelli v.
Ward , 997 S.W.2d 474 ( Ky. App. 1998).
ANALYSIS On appeal, the McWhorters first contend that they complied with KRS 411.167(7) which , in pertinent part , provides a “ claimant, in lieu of serving a certificate of merit, may provide the defendant or defendants with expert
informat ion in the form required by the Kentucky Rules of Civil Procedure. ” The McWhorters argue this section does not stipulate a timeframe for compliance . Yet, their argument ignores KRS 411.167(1), which mandates a claimant “ shall file a
certificate of merit with the complaint in the court in which the action is
commenced. ” ( E mphasis added

. )

This argument was examined in Dumphord v. Gabriel , No. CV 5:20

- 461

- DCR, 2021 WL 3572658 (E.D. Ky. Aug. 12, 2021) , which noted:

In his view, the lack of a specific time frame in that subsection means that the legislature intended to allow plaintiffs to provide the information any time after the filing of the complaint.

. . . But “[s]tatutes should be construed in such a way that they do not become ineffectual or meaningless,” and “[a]ny apparent conflict between sections of the same statute should be harmonized if possible so as to give effect to both sections.” Lewis v. Jackson Energy Coop. Corp. , 189 S.W.3d 87, 91 (Ky. 2005) (citation s omitted). Dumphord’s reading of the statute would render the certificate of merit requirement both ineffectual and meaningless. A proper reading of the statute, as a whole,- 4

- indicates that before filing a complaint, plaintiffs have the choice to either file a certificate of merit or provide the defendants with expert information “in lieu of serving a certificate of merit.” [KRS] 411.167(7). If plaintiffs could take advantage of subsection 411.167(7)’s exception at any time, the central requirement of t he statute

– that a certificate of merit be filed at the same time as the complaint

– could be ignored in every case. Dumphord has provided utterly no support for his argument that the Kentucky General Assembly intended that result.
Id. at *5 (footnote o mitted). T he McWhorters ’ argument herein must fail for the

same reasons discussed in Dumphord

.

Next, the McWhorters assert that Baptist Health’s motion to dismiss their complaint for failure to comply with KRS 411.167 should have been denied
because th e issue was not specifically raised in the answer. However, this
contention is unsupported by procedural requirements or the record. Neither the Kentucky Rules of Civil Procedure nor KRS 411.167 provide that a defendant must specifically alert th e trial court to a plaintiff’s failure to comply with KRS
411.167 in its answer or waive such noncompliance as a defense. Consequently,
the McWhorters ’ argument must fail.
CONCLUSION Therefore, and for the foregoing reasons, the order entered by the Fayette Circuit Court is AFFIRMED

.- 5

- THOMPSON, K., JUDGE, CONCURS IN MAJORITY OPINION AND JOINS IN THE SEPARATE CONCURRENCE.

JONES, JUDGE, CONCURS IN RESULT AND FILE S SEPARATE OPINION.
JONES , JUDGE, CONCURRING: I write separately to clarify that I believe a trial court retains its inherent authority under our Civil Rules of
Procedure to grant an extension of time to file a certificate of merit pursuant to
KRS 411.167, if requested by the plain tiff pursuant to CR 6.02.

The Kentucky Supreme Court has made clear that with the exception of statutory proceedings, “the Rules of Civil Procedure govern all civil actions
within the Court of Justice.” McCann v. Sullivan University System, Inc. , 528 S.W.3d 331, 333 (Ky. 2017). 3 Thus, KRS 411.167 must be interpreted in conjunction with our Civil Rules.

CR 6.02, which governs enlargement of time provides: When by statute or by these Rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may, at any time in its discretion, (a) with or without motion or notice order the period enlarged if request therefor is made before the expiration of the period orig inally prescribed or as extended by a

3 While the requirement for a certificate of merit is contained in a statute, this is clearly not a “statutory proceeding.” The McWhorters’ complaint sounds in negligence for injuries done to their persons, a cause of action originating out of the common law. It is not a creature of statute. Additionally, a statutory proceeding is one that is “complete within itself having each procedural detail prescribed” such as dependency, neglect, and abuse actions, election contests, and unemployment claims. McCann , 528 S.W.3d at 334 (citation omitted). The certificate of merit statute co ntains only the requirements for the filing of that document.- 6

- previous order or (b) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect; but it may not extend the time for taking any action under Rules 50.02, 52.02, 59.02, 59.04, 59.05, 60.02, 72.02, 73.02 and 74 except to the extent and under the conditions stated in them. KRS 411.167 is a statute that requires an act to be done at a certain time; it requires the filing of a certif icate of merit at the time a complaint is filed. Moreover, the statute does not prohibit the granting of extensions. As such, I believe the trial court retained its inherent discretion under CR 6.02(b) to grant
extension to file the certificate of merit.

Here, Appellants requested an extension of time, which the trial court denied. The record is silent as to what was considered by the trial court in denying the requested extension, and Appellants have not argued that the trial court’s denial
of their motion for an extension of time was an abuse of discretion. Since the Appellants have not shown the trial court’s denial of their motion for an extension of time was an abuse of discretion, I join in the majority’s decision to affirm the
trial court.

B RIEF FOR APPELLANT S :
David M. Cross Donald L. Wilkerson, III Albany, Kentucky BRIEF FOR APPELLEE: Jeffrey T. Barnett Kimberly G. DeSimone Lexington, Kentucky