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§47.6E Certificate of Good Faith - Subsequently Added Defendants

The Case:  Groves v. Colburn, No. M2012-01834-COA-R3-CV, 2013 WL 3964758 (Tenn. Ct. App. July 30, 2013).

The Basic Facts:  Plaintiff filed a health care liability suit against a hospital, then later amended her complaint to add a physician as a party but did not file a certificate of good faith with her amended complaint as to the claims against the new party.

The Bottom Line:

 

·    “Our Supreme Court has previously opined that the filing of a certificate of good faith with a complaint is mandatory, and strict compliance is required.Myers, 382 S.W.3d at 308 (noting that the use of the word ‘shall’ in Tenn. Code. Ann. § 29-26-122(a) ‘indicates that the legislature intended the requirements to be mandatory, not directory’).” 2013 WL 3964758, at *3.

 

·      “When Mrs. Groves filed the certificate with her initial complaint, she confirmed that she or her counsel had consulted with at least one expert who provided a signed written statement confirming there was a ‘good faith basis to maintain the action consistent with the requirements of § 29–26–115.’  The expert’s opinion was predicated on his or her belief that there was a good faith basis to maintain the cause of action against the named defendant, Skyline. The allegations in the initial complaint were directed toward nurses who ‘did not immediately notify a physician that Mr. Groves had fallen.’ When Mrs. Groves learned additional information that implicated Dr. Colburn, she was required to consult with an expert to determine whether there was a good faith basis to maintain a cause of action against him and to file a certificate indicating as such with her amended complaint. Since the allegations changed to claim physician liability based on different facts, a new certificate based upon the expert’s review of newly alleged facts was necessary. Because Mrs. Groves failed to file a certificate of good faith with her amended complaint, Tenn. Code. Ann. § 29-26-122(a) directed the trial court to dismiss the action.” Id.

Recent Cases:  Sirbaugh v. Vanderbilt Univ., No. M2014-00153-COA-R9-CV, 2014 WL 7465676 (Tenn. Ct. App. Dec. 30, 2014) (where defendant alleged comparative fault against non-parties and plaintiff waived requirement that defendant file certificate of good faith as to comparative fault allegations, plaintiff was required to file certificate of good faith when she filed amended complaint naming the new defendants).

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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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