Hugh Keith McWhorter v. Baptist Healthcare System, Inc. D/B/A Baptist Health Lexington ( 2022 )

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NOT TO BE PUBLISHED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
APPEAL FROM FAYETTE CIRCUIT COURT
v. 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.
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,2 the 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: BRIEF FOR APPELLEE:
David M. Cross Jeffrey T. Barnett
Donald L. Wilkerson, III Kimberly G. DeSimone
Albany, Kentucky Lexington, Kentucky
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