Kentucky Medical Malpractice Laws

If you're filing a medical malpractice lawsuit in Kentucky, understand the statute of limitations lawsuit-filing deadline and other filing requirements.

By , J.D. University of San Francisco School of Law
Updated 4/12/2022

Before you decide to file a medical malpractice lawsuit in Kentucky, be aware that these cases are notoriously complex. Strict procedural rules need to be obeyed, volumes of medical records need to be sifted through and analyzed, and the plaintiff's "burden of proof" is substantial. In this article, we'll take a look at the Kentucky statute of limitations deadline for medical malpractice lawsuits, the state's "certificate of merit" requirement, and more.

The Kentucky Medical Malpractice Statute of Limitations

First, some background for readers who may not be fluent in the language of "legalese": A statute of limitations is a state law that sets a limit on the amount of time you have to file a lawsuit.

Kentucky's statute of limitations for medical malpractice lawsuits is at Kentucky Revised Statutes section 413.140(1)(e), which says that this kind of case must be filed within one year "after the cause of action accrued." The next logical question is, when does a medical malpractice cause of action "accrue" in Kentucky? Another part of the same law (in subsection (2)) provides the answer: in medical malpractice cases, "the cause of action shall be deemed to accrue at the time the injury is first discovered or in the exercise of reasonable care should have been discovered." In other words, once you know (or should know in the eyes of the law) that you were harmed by a medical error, you must file your lawsuit within one year.

The statute includes a larger catch-all filing deadline (known as a "statute of repose" in legalese) of five years from the date of the alleged negligence, regardless of the discovery date. But the Kentucky Supreme Court ruled that this statute of repose violates the state constitution's "open courts" provisions by potentially cutting off plaintiffs' right to seek a remedy for their injuries in court before their cause of action has accrued (McCollum v. Sisters of Charity of Nazareth Health Corp., 799 S.W.2d 15 (Ky. 1990)). The upshot of this holding is that the "clock" for the one-year statute of limitations doesn't start until the discovery date, even if that's more than five years after the incident that led to your injuries.

Having read all of this, you're probably wondering what happens if you file your lawsuit after the one-year statute of limitations has expired. In that situation, you can assume that the defendant (the doctor or hospital you're suing) will ask the court to dismiss the case, and that the court will grant the motion. Once that happens, that's the end of your lawsuit. So you can see why it's important to pay attention to the Kentucky statute of limitations and understand how the deadline applies to your situation.

Kentucky's "Certificate of Merit" Requirement for Medical Malpractice Claims

Briefly (from 2017 to 2019), Kentucky law required people with medical malpractice claims to obtain an opinion from a medical review panel about the merits of their case before they could file a lawsuit in court—a process that could take months. Here again, the Kentucky Supreme Court held that the laws violated the Kentucky Constitution by delaying access to the courts (Commonwealth of Kentucky v. Claycomb, 566 S.W.3d 202 (Ky. 2018)).

After the court struck down the laws concerning the mandatory, pre-filing medical review process, the state's legislature enacted a different law, at Kentucky Revised Statutes section 411.167, which simply requires plaintiffs to file a "certificate of merit" along with their complaint (the initial document that starts the lawsuit when it's filed with the court). The certificate of merit is an affidavit declaring that:

  • the plaintiff's attorney (or the plaintiff) has reviewed the facts of the case and consulted with an expert who meets the qualifications for expert medical witnesses and who has knowledge about the issues involved in the case, and
  • in the expert's opinion, there is a reasonable basis for pursuing the medical malpractice lawsuit.

However, the law does allow for some alternative affidavits explaining why it's not possible or appropriate to get this expert opinion by the time the lawsuit is filed. For instance, the plaintiff may file an affidavit stating that:

  • the plaintiff's lawyer made three separate attempts (in good faith) to get an opinion from three different experts, but none of them would agree to give a consultation
  • it wasn't possible to get a consultation from an expert before the expiration of the statute of limitations (in which case the certificate of merit must be filed in the next 60 days), or
  • the plaintiff will not need any expert testimony to prove the allegations in the lawsuit.

There are very few medical malpractice cases that won't require expert witnesses. Juries almost always need to hear testimony from medical experts to understand and make findings on issues such as the appropriate standard of care, whether the health care provider negligently failed to provide that care, and whether that failure actually caused the plaintiff's injuries. In some rare cases, however, lay jurors can presume the health care provider was negligent without an expert's opinion, such as when a scalpel or sponge is left in a patient's body after surgery.

No Medical Malpractice Damages Cap in Kentucky

A number of states have set a "cap" on the amount of compensation a plaintiff can receive in a medical malpractice case. These caps mean that, even when a plaintiff establishes the defendant's liability for malpractice, there is a limit on the actual amount of damages the jury can award, regardless of the extent of the plaintiff's specific losses.

There is currently no cap on medical malpractice damages in Kentucky (including for things like pain and suffering), so an injured patient is free to recover for all financial losses that can be attributed to the defendant's malpractice.

This article provides a brief summary of some of the Kentucky laws that any medical malpractice plaintiff needs to have in mind. If you've got questions about how the state's laws will affect your potential situation, an experienced Kentucky medical malpractice attorney will have the answers.

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