RENDERED: OCTOBER 24, 2025; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2025-CA-0186-MR
HAROLD WRIGHT AND MARILYN WRIGHT APPELLANTS
APPEAL FROM UNION CIRCUIT COURT v. HONORABLE DANIEL M. HEADY, JUDGE ACTION NO. 21-CI-00166
DEACONESS UNION COUNTY HOSPITAL AND DR. TERRY PERKINS APPELLEES
OPINION AFFIRMING
** ** ** ** **
BEFORE: THOMPSON, CHIEF JUDGE; CETRULO AND MOYNAHAN, JUDGES.
THOMPSON, CHIEF JUDGE: Harold Wright and Marilyn Wright (Appellants)
appeal from a January 7, 2025 order of the Union Circuit Court granting summary
judgment in favor of Deaconess Union County Hospital and Dr. Terry Perkins
(Appellees). Appellants argue that the circuit court improperly ruled that their
failure to timely file a Certificate of Merit with their medical malpractice claim as required by Kentucky Revised Statutes (KRS) 411.167 mandated dismissal of their
complaint. After careful review, we find no error and affirm the order granting
summary judgment.
FACTS AND PROCEDURAL HISTORY
On September 18, 2020, Mr. Wright went to the emergency room of
Deaconess Union County Hospital (Deaconess) after falling and injuring his knee –
the same knee on which he previously underwent replacement surgery. Dr. Terry
Perkins (Dr. Perkins) examined Mr. Wright, ordered an x-ray and diagnosed a
sprain. Mr. Wright was discharged.
While still in the emergency department, Mr. Wright attempted to
stand from a seated position without staff assistance. His first effort failed. On the
second attempt, he fell to the floor and allegedly sustained a quadriceps tendon tear
which was surgically repaired six days later by his prior treating physician Dr.
Reid Wilson.
On September 17, 2021, Appellants filed suit against Dr. Perkins,
alleging negligent diagnosis and treatment proximately resulting in Mr. Wright’s
fall and tendon injury. They also alleged hospital liability, both direct and
vicarious. Dr. Perkins and Deaconess answered with general denials.
Prior to answering, Deaconess filed a motion to dismiss the Wrights’
action for failure to state a claim upon which relief can be granted. It also asserted
-2- that Appellants improperly failed to file with their complaint a Certificate of Merit
per KRS 411.167 stating that Appellants consulted a qualified expert and
concluded that a reasonable basis exists to commence the action.
On November 22, 2021, Appellants filed an amended complaint with
Mr. Wright’s affidavit under KRS 411.167 stating that Dr. Reid Wilson, would
testify on behalf of Mr. Wright.1 On December 2, 2021, Dr. Perkins was served
with the complaint, amended complaint, summons and affidavit purporting to
comply with KRS 411.167. On May 10, 2022, the Union Circuit Court denied
Appellees’ motions to dismiss upon concluding that Mr. Wright’s affidavit
satisfied KRS 411.167, and that Appellants had demonstrated excusable neglect.
According to the record, the action then languished for about two years with little
activity.
In February of 2024, the Kentucky Supreme Court rendered opinions
in McMillin v. Sanchez, 686 S.W.3d 145 (Ky. 2024), and McWhorter v. Baptist
Healthcare Systems, Inc., 686 S.W.3d 142 (Ky. 2024), holding that KRS 411.167
requires strict compliance with the filing of the Certificate of Merit in medical
malpractice claims. In light of these opinions, Deaconess filed a motion for
summary judgment renewing their argument that Appellants’ failure to file a
1 The affidavit is contradictory though, as it also averred that Dr. Wilson would be unable to voluntarily provide a medical opinion. The affidavit further claimed that Mr. Wright’s health issues had prevented him from obtaining an expert opinion or review under KRS 411.167. -3- Certificate of Merit with the complaint must result in dismissal of their action. Dr.
Perkins joined by way of a separate motion.
On January 7, 2025, the Union Circuit Court entered an order granting
Appellees’ motion to dismiss the action.2 Relying on McMillin, supra, the circuit
court ruled that Appellants’ failure to file a Certificate of Merit with their
complaint was fatal to their claim. Accordingly, it dismissed Appellants’
complaint, and this appeal followed.
STANDARD OF REVIEW
Summary judgment “shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, stipulations, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of
law.” Kentucky Rules of Civil Procedure (“CR”) 56.03. “The record must be
viewed in a light most favorable to the party opposing the motion for summary
judgment and all doubts are to be resolved in his favor.” Steelvest, Inc. v.
Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991). Summary
judgment should be granted only if it appears impossible that the nonmoving party
will be able to produce evidence at trial warranting a judgment in his favor. Id.
2 As part of this order, the circuit court vacated in part its May 10, 2022, order denying Appellees’ motions to dismiss. -4- “Even though a trial court may believe the party opposing the motion may not
succeed at trial, it should not render a summary judgment if there is any issue of
material fact.” Id. Finally, “[t]he standard of review on appeal of a summary
judgment is whether the trial court correctly found that there were no genuine
issues as to any material fact and that the moving party was entitled to judgment as
a matter of law.” Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996).
ARGUMENTS AND ANALYSIS
Appellants argue that the Union Circuit Court erred in granting
summary judgment in favor of the Appellees and dismissing Appellants’ complaint
based upon McMillin, supra. They first maintain that the circuit court erred in
concluding that Appellants did not file a timely Certificate of Merit in conformity
with KRS 411.167. They state that they filed this action on September 17, 2021,
and served Deaconess with the complaint in a timely manner. They go on to argue
that, “Dr. Perkins avoided Service of Process. He could not be found, and he could
not be served.”
Appellants state that they subsequently filed an amended complaint in
accordance with the civil rules, which was served on Dr. Perkins on December 2,
2021. At the same time, Dr. Perkins was served with the original complaint and
the Certificate of Merit. Appellants contend that the filing of the Certificate of
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RENDERED: OCTOBER 24, 2025; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2025-CA-0186-MR
HAROLD WRIGHT AND MARILYN WRIGHT APPELLANTS
APPEAL FROM UNION CIRCUIT COURT v. HONORABLE DANIEL M. HEADY, JUDGE ACTION NO. 21-CI-00166
DEACONESS UNION COUNTY HOSPITAL AND DR. TERRY PERKINS APPELLEES
OPINION AFFIRMING
** ** ** ** **
BEFORE: THOMPSON, CHIEF JUDGE; CETRULO AND MOYNAHAN, JUDGES.
THOMPSON, CHIEF JUDGE: Harold Wright and Marilyn Wright (Appellants)
appeal from a January 7, 2025 order of the Union Circuit Court granting summary
judgment in favor of Deaconess Union County Hospital and Dr. Terry Perkins
(Appellees). Appellants argue that the circuit court improperly ruled that their
failure to timely file a Certificate of Merit with their medical malpractice claim as required by Kentucky Revised Statutes (KRS) 411.167 mandated dismissal of their
complaint. After careful review, we find no error and affirm the order granting
summary judgment.
FACTS AND PROCEDURAL HISTORY
On September 18, 2020, Mr. Wright went to the emergency room of
Deaconess Union County Hospital (Deaconess) after falling and injuring his knee –
the same knee on which he previously underwent replacement surgery. Dr. Terry
Perkins (Dr. Perkins) examined Mr. Wright, ordered an x-ray and diagnosed a
sprain. Mr. Wright was discharged.
While still in the emergency department, Mr. Wright attempted to
stand from a seated position without staff assistance. His first effort failed. On the
second attempt, he fell to the floor and allegedly sustained a quadriceps tendon tear
which was surgically repaired six days later by his prior treating physician Dr.
Reid Wilson.
On September 17, 2021, Appellants filed suit against Dr. Perkins,
alleging negligent diagnosis and treatment proximately resulting in Mr. Wright’s
fall and tendon injury. They also alleged hospital liability, both direct and
vicarious. Dr. Perkins and Deaconess answered with general denials.
Prior to answering, Deaconess filed a motion to dismiss the Wrights’
action for failure to state a claim upon which relief can be granted. It also asserted
-2- that Appellants improperly failed to file with their complaint a Certificate of Merit
per KRS 411.167 stating that Appellants consulted a qualified expert and
concluded that a reasonable basis exists to commence the action.
On November 22, 2021, Appellants filed an amended complaint with
Mr. Wright’s affidavit under KRS 411.167 stating that Dr. Reid Wilson, would
testify on behalf of Mr. Wright.1 On December 2, 2021, Dr. Perkins was served
with the complaint, amended complaint, summons and affidavit purporting to
comply with KRS 411.167. On May 10, 2022, the Union Circuit Court denied
Appellees’ motions to dismiss upon concluding that Mr. Wright’s affidavit
satisfied KRS 411.167, and that Appellants had demonstrated excusable neglect.
According to the record, the action then languished for about two years with little
activity.
In February of 2024, the Kentucky Supreme Court rendered opinions
in McMillin v. Sanchez, 686 S.W.3d 145 (Ky. 2024), and McWhorter v. Baptist
Healthcare Systems, Inc., 686 S.W.3d 142 (Ky. 2024), holding that KRS 411.167
requires strict compliance with the filing of the Certificate of Merit in medical
malpractice claims. In light of these opinions, Deaconess filed a motion for
summary judgment renewing their argument that Appellants’ failure to file a
1 The affidavit is contradictory though, as it also averred that Dr. Wilson would be unable to voluntarily provide a medical opinion. The affidavit further claimed that Mr. Wright’s health issues had prevented him from obtaining an expert opinion or review under KRS 411.167. -3- Certificate of Merit with the complaint must result in dismissal of their action. Dr.
Perkins joined by way of a separate motion.
On January 7, 2025, the Union Circuit Court entered an order granting
Appellees’ motion to dismiss the action.2 Relying on McMillin, supra, the circuit
court ruled that Appellants’ failure to file a Certificate of Merit with their
complaint was fatal to their claim. Accordingly, it dismissed Appellants’
complaint, and this appeal followed.
STANDARD OF REVIEW
Summary judgment “shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, stipulations, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of
law.” Kentucky Rules of Civil Procedure (“CR”) 56.03. “The record must be
viewed in a light most favorable to the party opposing the motion for summary
judgment and all doubts are to be resolved in his favor.” Steelvest, Inc. v.
Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991). Summary
judgment should be granted only if it appears impossible that the nonmoving party
will be able to produce evidence at trial warranting a judgment in his favor. Id.
2 As part of this order, the circuit court vacated in part its May 10, 2022, order denying Appellees’ motions to dismiss. -4- “Even though a trial court may believe the party opposing the motion may not
succeed at trial, it should not render a summary judgment if there is any issue of
material fact.” Id. Finally, “[t]he standard of review on appeal of a summary
judgment is whether the trial court correctly found that there were no genuine
issues as to any material fact and that the moving party was entitled to judgment as
a matter of law.” Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996).
ARGUMENTS AND ANALYSIS
Appellants argue that the Union Circuit Court erred in granting
summary judgment in favor of the Appellees and dismissing Appellants’ complaint
based upon McMillin, supra. They first maintain that the circuit court erred in
concluding that Appellants did not file a timely Certificate of Merit in conformity
with KRS 411.167. They state that they filed this action on September 17, 2021,
and served Deaconess with the complaint in a timely manner. They go on to argue
that, “Dr. Perkins avoided Service of Process. He could not be found, and he could
not be served.”
Appellants state that they subsequently filed an amended complaint in
accordance with the civil rules, which was served on Dr. Perkins on December 2,
2021. At the same time, Dr. Perkins was served with the original complaint and
the Certificate of Merit. Appellants contend that the filing of the Certificate of
-5- Merit on November 22, 2021, relates back in time to the filing of the original
complaint and therefore conforms with KRS 411.167.
KRS 411.167, entitled “Certificate of merit for medical malpractice
actions,” provides that “[a] claimant commencing any action identified in KRS
413.140(1)(e) . . . shall file a certificate of merit with the complaint in the court in
which the action is commenced.” KRS 411.167(1). KRS 413.140(1)(e) refers to
“[a]n action against a physician, surgeon, dentist, or hospital . . . for negligence or
malpractice.” The certificate shall state that the claimant “has concluded on the
basis of review and consultation [with a qualified expert] that there is reasonable
basis to commence the action . . . .” KRS 411.167(2)(a). And as noted above,
McMillin held that KRS 411.167 must be strictly construed. The McMillin court
rejected the medical malpractice plaintiff’s argument that technical and substantive
rather than strict compliance with KRS 411.167 is sufficient, and was not
persuaded by the plaintiff’s argument that the circuit court should have employed
less severe alternatives than dismissal with prejudice.
The question before us is whether the Union Circuit Court properly
concluded that Appellants did not file a Certificate of Merit with the complaint in
strict compliance with KRS 411.167, and that per McMillin, supra, their complaint
therefore must be dismissed. After closely examining the record and the law, we
must answer this question in the affirmative. Again, KRS 411.167(1) requires that
-6- the claimant “shall file a certificate of merit with the complaint[.]” (Emphasis
added.) It is uncontroverted that Appellants did not file their Certificate of Merit
with the complaint, and there is no basis for concluding that their filing of the
certificate some two months later relates back to the filing of the original complaint
for purposes of KRS 411.167(1). Though the circuit court initially excused
Appellants’ late filing of the Certificate of Merit based on excusable neglect, due
to Wright’s health issues such leniency is not available under the strict compliance
standard subsequently set out in McMillin. Therefore, the Union Circuit Court
properly dismissed Appellants’ action by way of summary judgment.
Though not dispositive, we also note that the certificate filed by
Appellants does not reveal the basis of their negligence claim against Dr. Perkins
or Deaconess; the injury or disease that Dr. Perkins allegedly misdiagnosed; how
the tendered medical records would support a claim of negligence; nor, how Dr.
Wilson’s testimony would demonstrate Dr. Perkins’ negligence.
Appellants make several related arguments that are subsumed by or
otherwise repeat portions of their main argument addressed above. They assert
that Dr. Perkins avoided service of process, but do not cite to anything in the
record supportive of this claim.
Further, we are not persuaded by Mr. Wright’s argument that he was
improperly denied his constitutional right to a trial by jury, as the right to prosecute
-7- a medical malpractice action is predicated on strict compliance with KRS 411.167.
McMillin, supra. And finally, Appellants argue that McMillin should not be
applied retroactively. We are not persuaded by this argument because KRS
411.167 was extant at the time of the filing of their complaint, and because
“judicial decisions generally apply retroactively.” Branham v. Stewart, 307
S.W.3d 94, 102 (Ky. 2010).
CONCLUSION
Appellants did not file a Certificate of Merit with their complaint as
strictly required by KRS 411.167. The Union Circuit Court properly so found. For
this reason, and per Scifres, supra, we find no error and affirm the Union Circuit
Court’s order granting summary judgment.
ALL CONCUR.
BRIEFS FOR APPELLANTS: BRIEF FOR APPELLEE DEACONESS: Wendell Holloway Madisonville, Kentucky Colleen O. Davis Louisville, Kentucky
BRIEF FOR APPELLEE DR. TERRY PERKINS, M.D.:
Stephen S. Burchett Michael G. Erena Lexington, Kentucky
-8-