Day on Torts
Thinking about not filing a certificate of good faith in a health care liability action in Tennessee? Read this opinion to learn the potential issues when one raises the “common knowledge” exception to the general rule requiring experts in such cases and the “extraordinary cause” required to avoid dismissal if you don’t file a certificate of good faith.
In Ruff v. Vanderbilt University Medical Center, No. M2022-01414-COA-R3-CV (Tenn. Ct. App. June 25, 2024), plaintiff filed a health care liability suit based on his previous eye surgery. Plaintiff alleged that the two surgeons failed to properly position his left eye back in its socket, causing his eye to bulge.
Although plaintiff complied with the HCLA pre-suit notice requirements, he failed to file a certificate of good faith with his complaint. Defendant moved to dismiss, which the trial court granted, and the Court of Appeals affirmed.
“A certificate of good faith must be filed with the complaint in any health care liability action in which expert testimony is required.” (citing Tenn. Code Ann. § 29-26-122(a)). Plaintiff argued that this case fell within the common knowledge exception, making expert testimony unnecessary, but the Court disagreed. The Court wrote that “the complex details of [plaintiff’s] eye surgery and medical condition are beyond the common understanding of a lay person.”
Plaintiff argued that he was exempt from the certificate of good faith requirement because defendant failed to provide his medical records in a timely fashion. The Court rejected this assertion, stating that plaintiff failed to “show[] that his failure to file the requested certificate was ‘due to’ the lack of medical records.” Plaintiff also asserted that his failure to file the certificate should be excused for extraordinary cause. Plaintiff pointed out that he consulted with five medical professionals while attempting to obtain a certificate of good faith, which he coined an extraordinary effort. The Court wrote, though, that “extraordinary effort does not equate to extraordinary cause.”
Because the claim required expert testimony, dismissal based on the lack of certificate of good faith was appropriate.
The Court released this opinion ten months after oral arguments in this case.