RENDERED: MARCH 29, 2024; 10:00 A.M. TO BE PUBLISHED 

# Commonwealth o f Kentucky Court of Appeals

NO. 2023

- CA

- 0583

- MR

WILLIAM TRAVIS BOSTON APPELLANT

APPEAL FROM WARREN CIRCUIT COURT v. HONORABLE CHRISTOPHER COHRON , JUDGE ACTION NO. 21

- CI

- 00714

COMMONWEALTH HEALTH CORPORATION, INC.; AND BOWLING GREEN

- WARREN COUNTY COMMUNITY HOSPITAL CORPORATION D/B/A THE MEDICAL CENTER AT BOWLING GREEN APPELLEES

OPINION REVERSING AND REMANDING

**   **  **
BEFORE: CALDWELL, CETRULO , AND JONES , JUDGES

. CALDWELL , JUDGE: William Travis Boston (“Boston”) appeals the May 11, 2023 order of the Warren Circuit Court dismissing , on subject matter jurisdiction grounds, the premises liability negligence claims he filed against the above

-- 2

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captioned appellees (hereinafter “Appellees”)

. Upon review, we reverse and
remand.
BACKGROUND

On June 7, 2021, Boston filed suit in Warren Circuit Court alleging
A p pellees owned, occupied, and maintained a hospital located at 250 Park Street in Bowling Green, Kentucky ; that A ppellees therefore owed a duty to regularly inspect the property for defects and hazards and to correct same; and that
A ppellees’ negligent bre ach of their duties caused him to sustain injuries. As further detailed in his complaint:

4. . . . [T]he [Appellees] caused or allowed to exist a defective and dangerous condition at the entrance to the hospital, in the form of an uneven surface due to a dislodged cobblestone; failed to regularly and properly inspect the property for such hazards; and failed to warn persons lawfully on or about the premises of the hazard they knew, or with due diligence should have known, to exist. 5. On June 10, 2020, th e Plaintiff, William Travis Boston, parked his vehicle in the front of the hospital in order to walk th rough the front entrance when he tripped on a raised piece of cobblestone, causing Plaintiff to strike the ground and suffer grievous bodily injury.
6. As a direct and proximate result of the negligence and carelessness of the [Appellees], the Plaintiff, William Travis Boston, has been caused to incur medical expenses, will be caused to incur medical expenses in the future, has incurred lost wages, is per manently and severely injured, has had his ability to labor and earn money in the future permanently impaired, has endured- 3

- great pain and suffering of body and mind, and will endure great pain and suffering of body and mind in the future. To be sure, Bos ton received care and treatment at Appellees’ hospital shortly after sustaining his injuries on June 10, 2020. F rom the face of his complaint, however, h e only took issue with the injury he sustained from his fall on Appellees’ premises

– not with the car e and treatment he received for his injury

. Notwithstanding, A ppellees moved to dismiss his suit based on Kentucky Revised Statute ( “ KRS ” ) 411.167, titled: “ Certificate of merit for medical malpractice
actions .” (Emphasis added

. ) In sum, A ppellees contended Boston was required to
file either the indicated “certificate of merit” ( or a declaration or affidavit averring that no such certificate was required ) contemporaneously with his complaint; and
that Boston’s failure to do so had deprived the circuit court of subject matter jurisdiction and thus warranted dismissal without prejudice pursuant to Kentucky Rule of Civil Procedure ( “ CR ” ) 12.02(a)

.

Upon con sideration, the circuit court agreed and granted Appellees’
motion. Th is appeal followed

. STANDARD OF REVIEW
Whether a court ha s subject matter jurisdiction over a case is a question of law , and therefore our review is de novo

. Floyd County Bd. of Educ. v. Ratliff , 955 S.W.2d 921 (Ky. 1997). Statutory interpretation , the primary focus of- 4

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this appeal, is likewise an issue of law subject to de novo review

. See KL & JL Invs., Inc. v. Lynch , 472 S.W.3d 540 (Ky. App. 2015) ; Cinelli v. Ward , 997 S.W.2d 474 (Ky. App. 1998).
ANALYSIS

Boston argues the circuit court erroneously determined KRS 411.167 deprived it of subject matter jurisdiction to resolve his premises liability negligence
claims . We agree. Our analysis begins with the substance of the statute itself, which provides:

(1) A claimant commencing any actio n 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 t he 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 Ke ntucky 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 inv olved in the particular action, and has concluded on the basis of review and consultation that there is reasonable basis to commence the action;- 5

- (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 affidav it 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 claiman t 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) defendan t 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 l oquitur 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.- 6

- (5) If a request by the claimant for the records of the claim ant ’ 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 secti on 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 th e 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 Ken tucky Rules of Civil Procedure. Nothing in this section requires the- 7

- disclosure of any “consulting” or nontrial expert, except as expressly stated in this section. In dismissing Boston’s premises liability claims against A ppellees, the
circuit court rel ied entirely upon its understanding of KRS 411.167(1)

– specifically, the statement in that subsection that the “certificate of merit” requirement applies to “ any action identified in KRS 413.140(1)(e) [.]”

In turn, KRS 413.140(1)(e) provides: “ The following actions shall be commenced within one (1) year after the cause of action accrued:

. . . An action against a physician, surgeon, dentist, or hospital licensed pursuant to KRS Chapter 216, for negligence or malpractice [.]” (Emphasis added.) View ing these words in conjunction, the circuit court reasoned that in any type of “ negligence ” action against a person qualified as a physician, surgeon, or dentist, or against a hospital licensed pursuant to KRS Chapter 216, a plaintiff must provide a certif icate of merit with the complaint (or the affidavit or declaration specified in KRS 411.167(4)) or suffer dismissal

.

Taken to its extreme, the circuit court’s reasoning stan ds for the following proposition: If , by way of example, a plaintiff sustains i njuries due to an automobile accident caused by a physician’s negligent driving, or due to a helicopter crash caused by a dentist’s negligent piloting, or due to the discharge of a firearm negligently maintained by a surgeon , the plaintiff must , on pain of dismissal, file a certificate of merit or the aforementioned affidavit or declaration- 8

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when suing any of those individuals. Continuing in this vein, the circuit court
reasoned a certificate of merit, or the affidavit or declaration was required where, as here, Boston was allegedly injured in a “slip and fall” stemming from a hospital’s negligent maintenance of its premises ; and that because Boston failed to file one, dismissal was warranted.

With that said, a court ’s interpretation of a statute must not be guided by a single sentence or word (here, the open

- ended word “negligence” incorporated by reference from an entirely different statute ) but must look to the provisions of the whole statute in question

. Democratic Party of Kentu cky v.
Graham , 976 S.W.2d 423 ( Ky. 1998). And, taken in that context, the circuit court’s interpretation of KRS 411.167 gives rise to inconsistencies. For example,
the circuit court came to believe the certificate of merit requirement set forth in
KRS 41 1.167(1) applied to any negligence action against a physician, surgeon, or dentist, or against a hospital licensed pursuant to KRS Chapter 216

. Yet, th e same provision clearly specifies that with respect to “a long

- term

- care facility as defined
in KRS 216 .510,” that requirement only applies to actions “all eging that the long

term

- care facility failed to provide proper care to one (1) or more residents of the facility [.]” (Emphasis added.) The circuit court offered no rationale for what it apparently perceived as the statute’s disparate treatment of these classes of potential defendants.- 9

- The circuit court’s interpretation is also at odds with KRS 411.167(5) , which provides in relevant part:

If a request by the claimant for the recor ds 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. (Emphasis added.) U nder a plain reading of this provision, i f the claimant never received care or medical treatment from the defendants, the claimant is never required to file a certificate of merit ; nor could a claimant be expected to file an
affidavit or declaration to explain why the care or medical treatment the defendants
never rendered require d no certificate of merit

. Logically, the same would hold true if “the claimant’s medical treatment by the defendants” was not even at issue
in the claimant’ s suit. A different interpretation would lead to absurdity.

However, it is the title of this legislation that is most dispositive

. To be clear, the title of KRS 411.167 ( i.e. , “ Certificate of merit for medical malpractice actions” ) plays no role i n the legal interpretation of th e statute. See
KRS 446.140. But the title of the Act from which that statute derived certainly
does

. See Wheeler & Clevenger Oil Co., Inc. v. Washburn , 127 S.W.3d 609, 613 (Ky. 2004); Meyers v. Walter , 253 S.W.2d 595, 597 ( Ky. 1952) (“This construction is further supported by the title of the Act [

. ] ”); Fayette County Fiscal Court v. Fayette County , 314 Ky. 595, 236 S.W.2d 455 (1950); Ingram ’ s Adm ’ r v. Advance- 10

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Motor Co. , 283 Ky. 87, 140 S.W.2d 840, 841 (1940) (“We have held f requently that in the construction of an Act its title is to be read in connection with it.”); Logsdon v. Howard , 280 Ky. 342, 133 S.W.2d 60, 62 (1939) (“The meticulous care with which the legislature circumscribed its title to the 1938 act not only
sustai ns the interpretation we have made of the described situation, but it even goes so far as to not admit of any other interpretation.”). Additionally, Kentucky ’ s Constitution requires that “[n]o law enacted by the General Assembly shall relate
to more than one subject, and that shall be expressed in the title[.]” K Y

. C ONST

. §
51

. Here, the title of the Act from which KRS 411.167 derived ( i.e. , 2019 Ky. Acts ch. 180 , § 1 (HB 429) (eff. Mar

. 27, 2019)) , is “ AN ACT relating to medical malpractice .” And m edical malpractice

– as our Supreme Court held well
before the enactment of this A ct

– is a subject markedly different from premises liability negligence. See , e.g. , Caniff v. CSX Transp., Inc. , 438 S.W.3d 368, 373 (Ky. 2014), explaining:

[P] ursuant to Ke ntucky law, in most medical malpractice cases, a plaintiff is required to put forth expert medical testimony to establish the applicable standard of care, any breach that occurred and any resulting injury to the plaintiff. The case at bar is not a medical malpractice case, or any other type of professional negligence case. At its root, this case is a normal “slip and fall” case. (Internal quot ation marks , citations , and footnote omitted.)- 11

- “ When in enacting laws the Legislature is presumed to take cognizance of the Constitution, previously enacted statutes and the common law. ” Young v. Grauman , 278 Ky. 197, 128 S.W.2d 549, 550 (1939). Moreover, “ i f a statute is reasonably susceptible to two constructions, one of which renders it unconstitutional, the court must adopt the construction which sustains the constitutionality of the statute.” Davidson v. American Freightways, Inc. , 25 S.W.3d 94, 96 (Ky. 2000) ( internal quot ation marks and citation omitted). With those principles in mind, i t is not reas onable to presume the Legislature intended , when enacting HB 429, for that law to apply to two subjects, one of which

– premises liability claims

– falls well outside the Act’s stated title of “ AN ACT relating to medical malpractice.” Considering what is set forth above, KRS
411.167 only applies to “negligence” actions that could be considered a species of medical malpractice. A normal slip and fall case, such as the one at bar, does not qualify as such and is thus not subject to KRS 411.167.

Notwithstan ding, Appellees argue the circuit court’s interpretation of KRS 411.167 is consistent with binding precedent from this Court. In that regard, they rely on Evans v. Baptist Health Madisonville , 643 S.W.3d 105 (Ky. App. 2022). The plaintiff in that matter, Evans, alleged:

[S] he visited the hospital on December 27, 2019. She alleged that she sought medical treatment in the hospital ’ s emergency room because she was experiencing seizures and that she continued to experience symptoms- 12

- while in the emergency room. Evans explained that she was accompanied to the emergency room by her husband and was seated in a wheel

- chair so she would no t fall. Evans alleged that when she asked to visit the restroom, hospital staff ordered her to walk there. She alleged that as she walked to the restroom, she suffered a seizure, fell to the floor, and suffered severe injury. She alleged that hospital s taff “knew or with any training whatsoever would have known [Evans] should not have been required to self

- ambulate given the symptoms she presented.” She alleged that the negligence of hospital staff was a substantial factor in causing her injuries.
Id

. at 106. Ultimately, the trial court dismissed Evans’ negligence suit against the hospital based on CR 12.02 and this Court affirmed, explaining in relevant part :

Evans intended to base her cause of action against the hospital upon the alleged professional negligence of the health care providers involved in her care. Evans alleged that despite her symptoms, hospital staff negligently instructed her to walk to the restroom, ignoring her protests. Evans charged that hospital staff “knew or with any training whatsoever would have known [Evans] should not have been required to self

- ambulate given the symptoms she presented.” A review of our opinion in Chamis v. Ashland Hospital Corporation , 532 S.W.3d 652 (Ky. App. 2017), is instructive. In Chamis , we consid ered whether expert testimony was needed to establish a hospital ’ s standard of care, its breach of the standard of care, and the resulting injury where the plaintiff alleged that hospital staff negligently allowed her decedent to fall from a bed. In our an alysis, we accepted the hospital ’ s position that the matter was not a “slip and fall” case but rather a medical malpractice case due to the nature of the claims

– negligence and failure to meet the standard of care. Id

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- at 656. We agreed that expert test imony was required to establish the degree of care and skill expected and that the patient had fallen because hospital staff breached the standard of care. Id . at 657. In dicta , we noted that determining whether the patient should have ambulated only wit h the assistance of two persons was an exercise in professional judgment. Id

. Where the plaintiff alleged that staff members were negligent by failing to take reasonable steps to protect the patient, we specifically held that the matter was not an ordina ry negligence case. Id

. Regardless of whether we conclude that Evans ’ s action against Baptist Health is one for ordinary negligence or one for malpractice, the circuit court did not err by concluding that the provisions of KRS 411.167 applied. In an act ion against a hospital for negligence or malpractice, KRS 411.167(1) requires the filing of a certificate of merit. On the other hand, even if we were to conclude that Evans ’ s complaint stated a cause of action for ordinary negligence (for which expert testimony would not be required), the provisions of KRS 411.167(4) would nonetheless still apply. KRS 411.167(4) requires the complaint to be accompanied by an “affidavit or de claration that no cause of action is asserted for which expert testimony is required.” No such affidavit or declaration was filed in the trial court.
Id. at 108. Arguing that Evans is analogous to the case at bar, the Appellees seize upon our use of t he phrases, “slip and fall,” “ordinary negligence,” and “professional negligence” set forth above, but they ignore the obvious point that distinguishes these cases. In Evans , regardless of whether the hospital’s alleged “negligence” could have been classi fied as “ordinary” or “professional,” the- 14

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claimant’s “slip and fall” injury stemmed not from a hazard on the hospital’s premises as here, but from the hospital’s care and treatment of the claimant: Evans was allegedly injured due to the hospital staff’s e xercise (or lack of exercise) of
either common

- sense or professional judgment regarding her medical condition

– a quintessential example of medical malpractice or its subspecies, medical negligence

. Accordingly, Appellees’ attempt to analogize Evans to th is case lacks
merit. As a final matter, Boston notes he filed a CR 11 motion for sanctions against Appellees for what he regarded as Appellees’ frivolous motion to dismiss his negligence claims based upon KRS 411.167; that the circuit court denied his motion in light of how it disposed of this matter; and he asserts that “ [a] ccordingly, the Circuit Court should consider [his] motion for sanctions after final judgment.” However, Boston’s two

- sentence statement to this effect stops short of asking this Court to review whether Appellees’ underlying arguments

– which succeeded
below

– should have been considered frivolous. T o the extent Bo ston is arguing he
is entitled to reassert his CR 11 motion and that the circuit court is entitled to revisit it, nothing in this Opinion should be construed as any prohibition in that regard

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- CONCLUSION Considering the for e going, we REVERSE the May 11, 2023 order of the Warren Circuit Court dismissing Boston’s negligence claims against Appellees, and REMAND for further proceedings consistent with this Opinion.

ALL CONCUR.

BRIEF S FOR APPELLANT:
Mat A. Slechter Louisville, Kentucky BRIEF FOR APPELLEE S : Aaron D. Smith E. Kenly Ames Bowling Green, Kentucky
Jonathan B. Blick Bowling Green, Kentucky