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§47.6 Certificate of Good Faith Requirement

The Case: Myers v. Amisub (SFH), Inc., 382 S.W.3d 300 (Tenn. 2012).

The Basic Facts:  After non-suiting initial medical malpractice case, which was filed before certificate of good faith statute was enacted, plaintiff re-filed and failed to file a certificate of good faith.

The Bottom Line:

  • “Tennessee Code Annotated section 29-26-122 requires the filing of a certificate of good faith in all medical malpractice cases requiring expert testimony, confirming that an expert has signed a written statement that there is a good faith basis to maintain the action[.]” 382 S.W.3d at 305.
  • “The proper way for a defendant to challenge a complaint’s compliance with Tennessee Code Annotated section 29-26-121 and Tennessee Code Annotated section 29-26-122 is to file a Tennessee Rule of Procedure 12.02 motion to dismiss. In the motion, the defendant should state how the plaintiff has failed to comply with the statutory requirements by referencing specific omissions in the complaint and/or by submitting affidavits or other proof. Once the defendant makes a properly supported motion under this rule, the burden shifts to the plaintiff to show either that it complied with the statutes or that it had extraordinary cause for failing to do so. Based on the complaint and any other relevant evidence submitted by the parties, the trial court must determine whether the plaintiff has complied with the statutes. If the trial court determines that the plaintiff has not complied with the statutes, then the trial court may consider whether the plaintiff has demonstrated extraordinary cause for its noncompliance.” Id. at 307.
  • “Tennessee Code Annotated section 29-26-122 expressly provides that ‘[i]n any medical malpractice action in which expert testimony is required by § 29-26-115, the plaintiff or plaintiff’s counsel shall file a certificate of good faith with the complaint.” Tenn. Code. Ann. § 29-26-122(a) (emphasis added). The use of the word “shall” in both statutes indicates that the legislature intended the requirements to be mandatory, not directory. Bellamy v. Cracker Barrel Old Country Store, Inc., 302 S.W.3d 278, 281 (Tenn. 2009) (quoting Stubbs v. State, 216 Tenn. 567, 393 S.W.2d 150, 154 (1965) (“When ‘shall’ is used ... it is ordinarily construed as being mandatory and not discretionary.’)).” Id. at 308.
  • “The essence of Tennessee Code Annotated section 29-26-122 is that a defendant receive assurance that there are good faith grounds for commencing such action. The requirements of pre-suit notice of a potential claim under Tennessee Code Annotated section 29-26-121 and the filing of a certificate of good faith under Tennessee Code Annotated section 29-26-122 are fundamental to the validity of the respective statutes and dictate that we construe such requirements as mandatory.” Id. at 309.
  • “Because these requirements are mandatory, they are not subject to satisfaction by substantial compliance. Substantial compliance is sufficient only when the statute’s requirements are directory, not mandatory.” Id. at 310.

Recent Cases:  Dennis v. Smith, No. E2014-00636-COA-R3-CV, 2015 WL 1518005 (Tenn. Ct. App. March 31, 2015) (filing a signed statement from expert did not satisfy certificate of good faith requirement); Caldwell v. Vanderbilt Univ., No. M2012-00328-COA-R3-CV, 2013 WL 655239 (Tenn. Ct. App. Feb. 20, 2013) (certificate of good faith requires plaintiff to obtain a signed written statement from expert, not merely assertion that plaintiff thinks one of her treating doctors is competent and will testify favorably); Jackson v. HCA Health Services of Tennessee, Inc., 383 S.W.3d 497 (Tenn. Ct App. 2012) (affirming constitutionality of certificate of good faith requirement); Kerby v. Haws, No. M2011-01943-COA-R3-CV, 2012 WL 6675097 (Tenn. Ct. App. Dec. 20, 2012) (sanctions are only available under certificate of good faith statute where statute’s express terms have been violated); Hinkle v. Kindred Hosp., No. M2012-02499-COA-R3-CV, 2012 WL 3799215 (Tenn. Ct. App. Aug. 31, 2012) (a plaintiff can comply with the certificate of good faith requirement by providing an expert affidavit with the complaint demonstrating a good faith basis for bringing the claim, even if the plaintiff does not contemporaneously file an actual certificate of good faith; a plaintiff who complies with the statutes in spirit, if not by their technical terms, is therefore not required to demonstrate extraordinary cause for an exception to compliance).

Author's Note : Effective October 1, 2008, a patient was required to give formal notice to defendants before filing a medical malpractice case and required to file a certificate of good faith after filing suit. There were numerous problems with the legislation, and new legislation was passed and became effective July 1, 2009. The 2009 legislation is codified at T.C.A. §29-26-121 and 122. At the time this book went to press, there were no cases interpreting the notice or certificate of good faith requirement. Those contemplating filing a medical malpractice case may find it helpful to read the author's article, "The New New Medical Malpractice Notice and Certificate of Good Faith Statutes," Tennessee Bar Journal¸ Vol. 45, No. 7 (July 2009). The article is available at no charge at www.tba.org.

The 2009 legislation modified a significant section of the certificate of good faith requirement in §29-26-122 (the certificate now must be filed at the time suit is filed but if notice is properly given the statute of limitations is extended by 120 days) but the article referenced above does not otherwise contain an extensive discussion of the certificate of good faith requirement or the implications of a finding that a lawsuit was not filed in good faith. To learn more about those subject, the author suggests that you read Rebecca Blair's article "New Law May Reduce Frivolous Suits but Make Valid Claims More Difficult," Tennessee Bar Journal, Vol. 44, No. 9 (October 2008). The article is available at no charge at www.tba.org.

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The foregoing is an excerpt from Day on Torts: Leading Cases in Tennessee Tort Law, published by John A. Day, Civil Trial Specialist, Fellow in the American College of Trial Lawyers, recipient of Best Lawyers in America recognition, Martindale-Hubbell AV® Preeminent™ rated attorney, and Top 100 Tennessee Mid-South Super Lawyers designee. Read John’s full bio here.

To order a copy of the book, visit www.dayontortsbook.com. John also blogs regularly on key issues for tort lawyers. To subscribe to the Day on Torts blog, visit www.dayontorts.com.

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