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

TO BE PUBLISHED

Commonwealth of 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-
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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 

Appellees owned, occupied, and maintained a hospital located at 250 Park Street in 

Bowling Green, Kentucky; that Appellees therefore owed a duty to regularly 

inspect the property for defects and hazards and to correct same; and that 

Appellees’ negligent breach 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, the Plaintiff, William Travis 

Boston, parked his vehicle in the front of the hospital in 

order to walk through 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 permanently and 

severely injured, has had his ability to labor and earn 

money in the future permanently impaired, has endured 
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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, Boston received care and treatment at Appellees’ hospital 

shortly after sustaining his injuries on June 10, 2020. From the face of his 

complaint, however, he only took issue with the injury he sustained from his fall 

on Appellees’ premises – not with the care and treatment he received for his injury. 

Notwithstanding, Appellees 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, Appellees 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 consideration, the circuit court agreed and granted Appellees’ 

motion. This appeal followed.

STANDARD OF REVIEW

Whether a court has 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 
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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 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;
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(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.
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(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 
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disclosure of any “consulting” or nontrial expert, except 

as expressly stated in this section.

In dismissing Boston’s premises liability claims against Appellees, the 

circuit court relied 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.) Viewing 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 certificate 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 stands for the 

following proposition: If, by way of example, a plaintiff sustains injuries 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 
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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 Kentucky 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 411.167(1) applied to any negligence action against a physician, surgeon, or 

dentist, or against a hospital licensed pursuant to KRS Chapter 216. Yet, the 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 “alleging that the longterm-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.
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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 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.

(Emphasis added.) Under a plain reading of this provision, if 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 required 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 in the legal interpretation of the 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 
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Motor Co., 283 Ky. 87, 140 S.W.2d 840, 841 (1940) (“We have held frequently 

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 

sustains 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[.]” KY. CONST. § 

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 medical malpractice – as our Supreme Court held well 

before the enactment of this Act – 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 Kentucky 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 quotation marks, citations, and footnote omitted.) 
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“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, “if 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 quotation marks and citation omitted). With 

those principles in mind, it is not reasonable 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.

Notwithstanding, 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 
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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 not 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 staff “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 considered 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 analysis, 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 testimony 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 with 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 ordinary 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 action 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 declaration 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 the 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 classified as “ordinary” or “professional,” the 
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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 exercise (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 this 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. To the extent Boston 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 foregoing, 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.

BRIEFS FOR APPELLANT:

Mat A. Slechter

Louisville, Kentucky

BRIEF FOR APPELLEES:

Aaron D. Smith

E. Kenly Ames

Bowling Green, Kentucky 

Jonathan B. Blick

Bowling Green, Kentucky