If you believe that you suffered an injury or other harm as a result of medical negligence in Kentucky, you should know that medical malpractice cases are known for being extremely complicated and difficult for injured patients to navigate. While you almost always will want a good medical malpractice attorney to handle these complexities, it can be helpful to understand the basic rules—especially so that you don’t miss the deadlines for taking action. This article explains Kentucky’s statute of limitations for medical malpractice lawsuits, along with the state’s other filing requirements and rules that could affect the outcome of your case.
A “statute of limitations” is a law that sets a deadline for filing a lawsuit. Under Kentucky’s statute of limitations, medical malpractice lawsuits against doctors, dentists, or hospitals must be filed within one year after the patients discover—or should have discovered with “the exercise of reasonable care”— that they’ve been injured as a result of the alleged negligence.
Although the statute itself modifies this “discovery rule” by imposing an overarching filing deadline of five years after the incident, the Kentucky Supreme Court has held that this five-year “statute of repose” violates the state constitution. Effectively, that means that patients have one year after the discovery date to file their lawsuits in Kentucky, no matter how much time has passed since the allegedly negligent act or failure to act. (Ky. Rev. Stat. § 413.140(1)(e), (2) (2021); McCollum v. Sisters of Charity of Nazareth Health Corp., 799 S.W.2d 15 (Ky. 1990).)
There are a few limited circumstances that will pause (or "toll" in legalese) the running of the "clock" for the statute of limitations in Kentucky. The most common is when the injured patient was a child. In that case, the one-year period for filing a medical malpractice lawsuit doesn't start until the patient turns 18.
The statute of limitations is also tolled while the the injured patients are mentally disabled ("of unsound mind," in the language of Kentucky law) and while defendants who are normally Kentucky residents have left the state, have gone into hiding, or are otherwise obstructing being served with the complaint (the legal document that starts the lawsuit process).
Many states require that, at the start of medical malpractice cases, the plaintiffs submit some kind of evidence that they have good reason to file the lawsuit, often in the form of an affidavit of merit. Kentucky went even further in 2017 by passing legislation that mandated a time-consuming review process before a complaint could even be filed with the court. Under these now-repealed laws, plaintiffs had to submit their complaints to a medical review panel and wait for the panel to review the medical records and other evidence, hear testimony, and give an opinion as to whether that evidence supported the complaint. However, the Kentucky Supreme Court struck down the act in 2019. The court held that the mandatory review process delayed access to the courts, thus violating the state constitutional right to a judicial remedy for personal injury “without … delay.” Finding “no set of circumstances” in which the law would be valid, the court ruled that the entire act was void. (Commonwealth of Kentucky v. Claycomb, 566 S.W.3d 202 (Ky. 2018); Ky. Const. § 14.)
After the Claycomb decision, the Kentucky legislature enacted a more scaled-down requirement for a certificate of merit, to be filed along with the complaint in medical malpractice suits against doctors, hospitals, dentists, or long-term care facilities. Depending on the circumstances, this certificate may take one of several forms:
You won’t need to file a certificate of merit along with the complaint if the defendant has not responded to your request for copies of medical records; in that case, you will have 90 days to file the certificate after you finally receive the requested records. (Ky. Rev. Stat. § 411.167 (2021).)
Because most medical malpractice cases involve scientific or medical issues that are outside of the knowledge of typical jurors, testimony from one or more medical experts is generally necessary prove all of the elements of medical malpractice—especially the appropriate standard of care and whether the defendant health care provider failed to meet that standard.
However, expert testimony may not be required in limited situations, most notably when the common knowledge of lay jurors is enough for them to recognize or infer negligence from the facts in the case. Examples of circumstances in which Kentucky courts have applied this exception (under a legal concept known as “res ipsa loquitur,” Latin for “the thing speaks for itself”) include when a dentist’s drill slipped and punctured a patient’s tongue, when a surgical tool was left in a patient’s body after an operation, or when a patient broke a bone during physical therapy.
Unless your case involves an obvious exception like this, you will need to hire at least one expert to prove that you were harmed as a result of medical negligence—and to counter the expert testimony that the defendant will put forward. An experienced medical malpractice lawyer should know how to find the right expert with the right qualifications in the appropriate specialty.
Unlike many other states, Kentucky law does not set any limits on damages in medical malpractice cases, including noneconomic damages like pain and suffering. That means that you will receive whatever amount the jury awards you (unless the judge reduces the award, which seldom happens).
What if more than one defendant is responsible for the harm you suffered as a result of medical malpractice? And what if you are partially to blame—for example, if you made your injuries worse by ignoring the doctor’s after-care instructions? In cases of shared fault, Kentucky uses what’s known as a “pure comparative negligence” rule to apportion liability for damages.
Under this rule, you can still receive an award if you were partially at fault, but it will be reduced in proportion to your share of the blame. The jury will decide the total amount of damages and the percentages of any shared fault. Then the award will be allocated according to those percentages. So if the jury awarded a total of $100,000 in damages, but found you were 30% at fault, you would receive $70,000. And if more than one defendant was responsible for your injuries, they will each pay a share of the damages according to their percentage of fault. (Ky. Rev. Stat. § 411.182 (2021).)