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§47.6D Certificate of Good Faith - No Requirement to File In Battery Claim

The Case:  Barnett v. Elite Sports Medicine, No. M2010-00619-COA-R3-CV, 2010 WL 5289669 (Tenn. Ct. App. Dec. 17, 2010).

The Basic Facts:  Plaintiff filed a medical malpractice lawsuit before there was a duty to give notice or file a certificate of good faith.  See Tenn. Code Ann. §§ 29-26-121 (notice) and 122 (certificate of good faith).  She also alleged battery for failure to authorize the procedure.  She voluntarily dismissed the case and re-filed it after the 2009 versions of the statutes became effective.  She did not file a certificate of good faith with the second filing.  Defendant moved for a dismissal of the case. The trial judge granted the motion.

The Bottom Line:

 

·       “The cause of action to recover for a medical battery is premised on the patient’s failure to authorize or consent to a particular procedure. Blanchard v. Kellum, 975 S.W.2d 522, 524 (Tenn. 1998). A ‘simple inquiry’ to determine whether a case constitutes medical battery was set out in Blanchard as follows:

 

(1) was the patient aware that the doctor was going to perform the procedure (i.e., did the patient know that the dentist was going to perform a root canal on a specified tooth or that the doctor was going to perform surgery on a specified knee?); and, if so, (2) did the patient authorize performance of the procedure? A plaintiff’s cause of action may be classified as a medical battery only when answers to either of the above questions are in the negative. If, however, answers to the above questions are affirmative and if the plaintiff is alleging that the doctor failed to inform of any or all risks or aspects associated with a procedure, the patient’s cause of action rests on an informed consent theory.”

 

2010 WL 5289669, at *4.

 

·       “We disagree with Defendants’ contention that, under the allegations of the complaint, a certificate of good faith was required. The requirement to file a certificate of good faith is contained at Tenn. Code Ann. § 29-26-122(a) which states that the certificate is required ‘[i]n any medical malpractice action in which expert testimony is required by § 29-26-115.’ Expert testimony is not required to sustain a claim for medical battery inasmuch as the primary inquiry before the court is whether the patient knew of and authorized the procedure. Blanchard, 975 S.W.2d at 524.” Id. at *5.

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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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