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NOT TO BE PUBLISHED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 McWhorter (“Keith”) and Carol McWhorter 

(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. 
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BACKGROUND FACTS AND PROCEDURAL HISTORY

Keith was admitted for surgery at Baptist Health Lexington (“Baptist 

Health”). A few days into his recovery, Keith’s health declined, and it was almost 

six weeks before he was discharged from the hospital.

Nearly a year later, the McWhorters sued Baptist Health 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 KRS1 411.167. 

Baptist Health moved the trial court to dismiss the McWhorters’ 

complaint for failure to comply with KRS 411.167. After the matter was fully 

briefed,2the McWhorters filed a certificate of merit, and a hearing was held. The 

trial court found the McWhorters’ complaint did not comply with KRS 411.167 

and dismissed it with prejudice. This appeal followed. 

STANDARD OF REVIEW

Construction and application of statutes is a matter of law. KL & JL 

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

1

 Kentucky Revised Statutes. 

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. 
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de novo with no deference 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 

information 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.” (Emphasis 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) (citations 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, 
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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 the 

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 omitted). The 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 the 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 the 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.
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THOMPSON, K., JUDGE, CONCURS IN MAJORITY OPINION 

AND JOINS IN THE SEPARATE CONCURRENCE.

JONES, JUDGE, CONCURS IN RESULT AND FILES 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 plaintiff 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 originally 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 contains only the requirements for the filing of that document.
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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 certificate 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. 

BRIEF FOR APPELLANTS:

David M. Cross

Donald L. Wilkerson, III

Albany, Kentucky 

BRIEF FOR APPELLEE:

Jeffrey T. Barnett

Kimberly G. DeSimone

Lexington, Kentucky