Katherine Betz v. Mitchell D. Kaye, Md ( 2022 )

RENDERED: DECEMBER 9, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-1285-MR
KATHERINE BETZ AND BRIAN
BETZ APPELLANTS
APPEAL FROM CHRISTIAN CIRCUIT COURT
v. HONORABLE JOHN L. ATKINS, JUDGE
ACTION NO. 21-CI-00559
MITCHELL D. KAYE, MD, AND
MITCHELL D. KAYE, MD,
INDIVIDUALLY APPELLEES
OPINION
AFFIRMING
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BEFORE: COMBS, MCNEILL, AND K. THOMPSON, JUDGES.
MCNEILL, JUDGE: Katherine and Brian Betz (“Betzes”) appeal from the
Christian Circuit Court’s order dismissing their complaint for failure to comply
with KRS1 411.167, which requires that a certificate of merit be filed with the
complaint in medical malpractice actions. Finding no error, we affirm.
On July 8, 2021, the Betzes filed a complaint against Mitchell D.
Kaye, M.D., and his professional service corporation (collectively, “Dr. Kaye”)
alleging that Dr. Kaye negligently performed a bilateral breast reduction surgery
on Katherine Betz resulting in severe necrosis and pain. Dr. Kaye moved for
summary judgment, arguing the Betzes failed to file a certificate of merit with their
complaint as required by KRS 411.167. Following a hearing, the trial court
granted the motion and dismissed the complaint. This appeal followed.
Summary judgment is proper when the trial court determines that no
genuine issues of material fact exist and the moving party is entitled to judgment as
a matter of law. Steelvest, Inc. v. Scansteel Serv. Ctr., 807 S.W.2d 476, 480 (Ky.
1991); CR2 56.03. Both the grant of summary judgment and issues of statutory
interpretation and application present questions of law, which we review de
novo. Shelton v. Kentucky Easter Seals Soc’y, Inc., 413 S.W.3d 901, 905 (Ky.
2013) (summary judgment); Adamson v. Adamson, 635 S.W.3d 72, 77 (Ky. 2021)
(statutory interpretation and application).
1
Kentucky Revised Statutes.
2
Kentucky Rules of Civil Procedure.
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The Betzes make three arguments on appeal: (1) KRS 411.167 does
not apply retroactively to their claims; (2) KRS 411.167 is unconstitutional; and (3)
KRS 411.167(4) excuses them from filing a certificate of merit because their
negligence claim does not require expert medical testimony. As an initial matter,
we must first address the deficiency of the Betzes’ appellate brief. Their argument
section fails to make “reference to the record showing whether the issue was
properly preserved for review and, if so, in what manner” as required
by CR 76.12(4)(c)(v). We require a statement of preservation:
so that we, the reviewing Court, can be confident the
issue was properly presented to the trial court and
therefore, is appropriate for our consideration. It also has
a bearing on whether we employ the recognized standard
of review, or in the case of an unpreserved error, whether
palpable error review is being requested and may be
granted.
Oakley v. Oakley, 391 S.W.3d 377, 380 (Ky. App. 2012).
“Our options when an appellate advocate fails to abide by the rules
are: (1) to ignore the deficiency and proceed with the review; (2) to strike the brief
or its offending portions, CR 76.12(8)(a); or (3) to review the issues raised in the
brief for manifest injustice only[.]” Hallis v. Hallis, 328 S.W.3d 694, 696 (Ky.
App. 2010) (citing Elwell v. Stone, 799 S.W.2d 46, 47 (Ky. App. 1990)). Because
the record is small, and we have been able to determine whether their arguments
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were properly preserved, we will ignore the deficiency and proceed with the
review.
It is undisputed the Betzes did not file a certificate of merit as required
by KRS 411.167. Instead, they argue the statute does not apply to their claims
because Katherine was injured prior to its enactment. However, it is unclear this
argument was preserved for our review because the recording of the summary
judgment hearing held on October 6, 2021, is not part of the certified record on
appeal. “It is the appellant’s duty to present a complete record on appeal. Failure
to show preservation of claims prohibits this Court’s review of those claims.”
Steel Techs., Inc. v. Congleton, 234 S.W.3d 920, 926 (Ky. 2007), abrogated by
Osborne v. Keeney, 399 S.W.3d 1 (Ky. 2012).
Similarly, the Betzes failed to properly notify the Attorney General of
their constitutional challenges to KRS 411.167 rendering them unpreserved for our
review. KRS 418.075(1) provides, in relevant part, that “[i]n any proceeding
which involves the validity of a statute, the Attorney General of the state shall,
before judgment is entered, be served with a copy of the petition, and shall be
entitled to be heard . . . .” (Emphasis added.) Our Supreme Court has made it
clear that “strict compliance with the notification provisions of KRS 418.075 is
mandatory[.]” Benet v. Commonwealth, 253 S.W.3d 528, 532 (Ky. 2008) (citation
omitted). Here, the only notification provided to the Attorney General was the
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notice of appeal, after the entry of judgment. Therefore, the Betzes “failed fully
and timely to comply with the strict rubric of KRS 418.075[.]” Id. Because they
failed to notify the Attorney General of their constitutional challenges during the
pendency of the trial court proceedings, we will not address them.
Finally, the Betzes argue that KRS 411.167(4) excuses them from
filing a certificate of merit because their claim does not require expert medical
testimony. KRS 411.167(4) provides that 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[.]” However, in such circumstances, the
complaint must “be accompanied by an affidavit or declaration that no cause of
action is asserted for which expert testimony is required.” Id. Even assuming the
Betzes’ claim did not require expert medical testimony, their complaint was not
accompanied by an affidavit or declaration to such effect. Therefore, the trial court
did not err in dismissing their complaint for failure to comply with KRS 411.167.
Based upon the foregoing, the order of the Christian Circuit Court is
affirmed.
COMBS, JUDGE, CONCURS.
THOMPSON, K., JUDGE, CONCURS IN RESULT ONLY.
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BRIEF FOR APPELLANT: BRIEF FOR APPELLEES:
Wm. Clint Prow Craig L. Johnson
Providence, Kentucky Timothy B. George, Jr.
Louisville, Kentucky
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