Day on Torts
In a Tennessee HCLA case, the statutorily required certificate of faith must be a separate document and cannot simply be contained within the complaint.
In Dotson v. State, No. E2019-00325-COA-R9-CV (Tenn. Ct. App. Dec. 3, 2019), plaintiff filed a healthcare liability case against the state based on the alleged negligence of Dr. Brooks, who was a state employee, related to the death of her newborn baby. Because the claim was against a state employee, this suit was filed with the Claims Commission. Plaintiff also filed suit against another doctor and a private hospital in Washington County. When plaintiff filed her complaint with the Claims Commission, she attached a certificate of good faith, but that certificate of good faith contained the caption from the Washington County lawsuit and only mentioned the Washington County defendants, not Dr. Brooks. Within the complaint filed with the commission, however, paragraph 22 tracked the certificate of good faith language found in Tenn. Code Ann. § 29-26-122.
The state filed a motion to dismiss on the basis of an insufficient certificate of good faith. While the Commission found that the certificate of good faith that was filed failed to satisfy the requirements of the HCLA, it refused to dismiss the case, ruling that plaintiff “satisfied the requirements of the statute because paragraph 22 of the complaint tracks the language of the statute ‘virtually verbatim’ and because [plaintiff] made specific reference to Dr. Brooks within the body of the complaint.” The Court of Appeals reversed this decision.
Tenn. Code Ann. § 29-26-122(a) requires an HCLA complaint to be accompanied by a certificate of good faith stating that plaintiff’s counsel has obtained a written statement from an expert affirming that there is a good faith basis for the claims made in the complaint. “[T]he filing of a certificate of good faith with a complaint is mandatory, and strict compliance is required.” (internal citation omitted). While plaintiff argued that the Commission correctly ruled that the certificate of good faith requirement could be fulfilled in the complaint, the Court of Appeals held that a separate document was necessary.
The Court noted that the statute states that “plaintiff or plaintiff’s counsel shall file a certificate of good faith with the complaint.” (internal citation omitted). The Court found that “the natural and ordinary meaning of the statute’s words clearly and unambiguously requires that the certificate of good faith be a document that is filed in addition to and contiguous to the complaint.” The Court held that “[b]ecause strict compliance is required…, inclusion of the certificate of good faith language within the body of the complaint is insufficient to satisfy the certificate of good faith requirement.” Accordingly, the Claims Commission’s judgment was reversed and the Court ruled that the case should have been dismissed.
Defendant had also raised a statute of limitations argument, but the Court ruled that it was pretermitted by the holding on the certificate of good faith issue.
While the opinion never stated that this was an issue of first impression, it also failed to cite any previous Tennessee cases addressing the question of whether the certificate of good faith was required to be separate from the complaint. Based on the HCLA and this opinion, HCLA plaintiffs should be sure to file their certificates of good faith and complaints as separate documents.
NOTE: to aid lawyers in giving clients guidance about how long it takes to receive an opinion after oral argument in the appellate courts, we are going to start sharing that information with readers. Please understand that the length of time that elapses between oral argument and the date the opinion is released is dependent on a multitude of factors, not the least of which is the complexity of the issues presented. In this case, the opinion was released about six weeks after oral argument.