On May 29, 2015, the Supreme Court of Tennessee (“Tennessee Supreme Court”) prevented the medical malpractice defendants from benefiting from a potential “gotcha” in Tennessee’s medical malpractice law that requires plaintiffs to file a certificate of good faith in medical malpractice actions in which expert testimony is required: “A certificate of good faith shall disclose the number of prior violations of this section by the executing party.” Tenn. Code Ann. § 29-26-122(a), (c), (d)(4).
In the case the Tennessee Supreme Court was deciding, the plaintiff’s certificate of good faith failed to state the number of prior violations of the statute, and the defendants therefore filed a motion to dismiss, arguing that the plaintiff had failed to comply with the strict statutory requirement of section 29-26-122(d)(4).
It was undisputed that neither the plaintiff nor the plaintiff’s attorney had committed any prior violations of the statute, and therefore the plaintiff argued that if there were no prior violations, there is nothing to disclose (the statute does not state that zero prior violations must be disclosed).
The trial court granted the plaintiff’s request for voluntary dismissal without prejudice, the defendants appealed, and the Tennessee Court of Appeals affirmed the trial court’s order granting the plaintiff’s voluntary dismissal without prejudice. The defendants applied to appeal to the Tennessee Supreme Court, which approved the appeal application.
A prior Tennessee Court of Appeals case had held that if a plaintiff’s certificate of good faith is noncompliant with section 29-26-122(d)(4) by failing to disclose the absence of prior violations, then dismissal with prejudice was required. The Tennessee Supreme Court stated that it disagreed with the holding in the Tennessee Court of Appeals’ prior case, and held that the Tennessee Court of Appeals’ interpretation of the requirement of Tennessee Code Annotated section 29-26-122(d)(4) is inconsistent with a fair reading of the language of the statute (the plain language of the statute requires disclosure of “the number of prior violations” but does not require disclosure of whether or not there have been any prior violations – the Tennessee Supreme Court stated that the General Assembly could easily have worded the statute to instruct a party to disclose whether or not there have been any prior violations and, if so, the number of such prior violations; because it did not do so, if there have not been any prior violations, there is no “number of prior violations” to disclose).
The Tennessee Supreme Court stated, “we conclude that the requirement of Tennessee Code Annotated section 29-26-122(d)(4) that a certificate of good faith disclose the number of prior violations of the statute does not require disclosure of the absence of any prior violations of the statute.”
Source Timothy Davis ex rel. Katherine Michelle Davis v. Michael Ibach, MD, et al., No. W2013-02514-SC-R11-CV.
If you or a loved one were injured as a result of medical malpractice in Tennessee, you should promptly consult with a Tennessee medical malpractice lawyer who may investigate your medical malpractice claim for you and represent you in a medical malpractice case, if appropriate.
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