The “Certificate of Good Faith” Requirement in Tennessee Medical Malpractice (Health Care Liability) Lawsuits

Almost four years ago Tennessee adopted a requirement lawyers filing medical malpractice (now called health care liability) lawsuits must file a "certificate of good faith." Under the current version of the statute the certificate must be filed with the complaint.

The Tennessee pre-suit notice statute can be found at T.C.A. Section 29-26-122. I wrote an article about the most recent version of the statute for the Tennessee Bar Journal; the article is titled "Med Mal Makeover: The New Medical Malpractice Notice and Certificate of Good Faith Statute."

I have assembled a list of the cases that discussed the certificate of good faith requirement. One of the cases is pending before the Tennessee Supreme Court and an opinion is expected in the next few weeks.

Case Pending in the Tennessee Supreme Court:

Myers v. AMISUB (SFH), Inc., 2011 WL 664753 (Tenn. Ct. App. Feb. 24, 2011) (perm. app. granted Aug. 23, 2011) (defendant need not show prejudice by non-compliance with pre-suit notice requirement and duty to file certificate of good faith; trial court reversed and remanded for dismissal). Note: oral argument held April 4, 2012.

Tennessee State Court Cases

Hinkle v. Kindred Hosp., 2012 WL 3799215 (Tenn. Ct. App., Aug. 31, 2012) (expert’s detailed affidavit that was filed with complaint was sufficient to satisfy the certificate of good faith requirement).

Jackson v. HCA Health Services of Tennessee, 2012 WL 1379847 (Tenn. Ct. App. Apr. 18, 2012) (failure to file certificate of good faith required dismissal; no extraordinary cause demonstrated; challenge to statute on constitutional grounds dismissed).

Crawford v. Kavanaugh, 2011 WL 5829602 (Tenn. Ct. App. Nov. 21, 2011) (case dismissed for failure to file a certificate of good faith; plaintiffs were required to do so even though the case had been originally filed before the law requiring it came into effect, was voluntarily dismissed, and re-filed under the Savings Statute).

Cude v. Herren, 2011 WL 4436128 (Tenn. Ct. App. Sept. 26, 2011) (case filed under Saving Statute after pre-suit notice and certificate of good faith requirements came into effect must give pre-suit notice and file certificate of good faith; extraordinary cause to excuse pre-suit notice and certificate of good faith was not demonstrated).

Robles v. Vanderbilt University Medical Center, 2011 WL 1532069 (Tenn. Ct. App. Aug. 25, 2011) (plaintiffs had a right to take a voluntary dismissal of medical malpractice case which failed to include a filing of a certificate of good faith and to re-file case with certificate of good faith).

Brister v. HCA Health Services of Tenn., 2011 WL 2395218 (Tenn. Ct. App. June 8, 2011) (after ruling the plaintiff need not comply with notice requirement if complaint sounds in ordinary negligence, the court said it did not need to address the second issue of whether a certificate of good faith had to be filed, presumably meaning that a certificate of good faith does not need to be filed if the allegations are only those of ordinary negligence).

Mathes v. DRD Knoxville Medical Clinic, 2011 WL 1402879 (Tenn. Ct. App. Apr. 13, 2011) (complaint sounded in ordinary negligence and therefore compliance with the pre-suit notice requirement and the certificate of merit requirement were not required).

Brandon v. Williamson Medical Center, 343 S.W.3d 784 (Tenn. Ct. App. 2010) (plaintiff’s complaint dismissed for failure to file certificate of good faith; failure not excused for “extraordinary cause” or “excusable neglect”).

Barnett v. Elite Sports Medicine, 2010 WL 5289669 (Tenn. Ct. App. Dec. 17, 2010) (medical malpractice case dismissed for failure to file certificate of good faith; no extraordinary cause shown; certificate of good faith is not required in battery case).

Martins v. Williamson Medical Center, 2010 WL 4746238 (Tenn. Ct. App. Nov. 22, 2010) (complaint sounded in malpractice and thus certificate of good faith was required).

Tennessee Federal Court Cases

Stinnet v. United States, 2012 WL 3834826 (M.D. Tenn. Sept. 4, 2012) (case dismissed, in part because no certificate of good faith was filed with complaint; claims sounded in medical malpractice, not ordinary negligence).

Taylor v. Johnson City, Tennessee, 2012 WL 3441226 (E.D. Tenn. Aug. 14, 2012) (claims designated a “medical negligence” were not in fact medical negligence claims under Tennessee law and therefore pre-suit notice and a certificate of good faith were not required).

Southwell v. Summit View of Farragut, LLC, 2012 WL 3340176 (Aug. 9, 2012) (dismissal of medical negligence claims affirmed for failure to give proper notice and failure to file certificate of good faith; court gave plaintiff a chance to amend and assert ordinary negligence claims). (A more detailed statement of the facts in this case is in the opinion and order of the district court, found at 2011 WL 2749614.)

Shuler v. McGrew, 2012 WL 3260685 (W.D. Tenn. Aug. 8, 2012) (case dismissed for failure to give pre-suit notice and file a certificate of good faith; plaintiff’s argument that the claims were not medical malpractice claims rejected; request to amend complaint denied).984 (W.D.Tenn. Mar. 23, 2012) (FTCA claim dismissed for failure to file certificate of good faith; claims sounded in medical negligence and thus certificate had to be filed).

Guthrie V. Ball, 2012 WL 2597931 (E.D. Tenn. 2012) (complaint dismissed because plaintiff could not demonstrate that pre-suit notice was sent to address on Department of Health website, even though notice was sent to defendant’s former employer, where he worked when he treated plaintiff; case dismissed without prejudice).

Seiber v. Anderson County, 2011 WL 6258446 (E.D. Tenn. Dec. 14, 2012) (plaintiff’s state law negligence claims sounded in medical malpractice; case dismissed for failure to give pre-suit notice).

Estate of Robles, 2011 WL 5521172 (M.D. Tenn. Nov. 14, 2011) (defense for failure to comply with filing of certificate of good faith in prior state court action stricken as futile; certificate of good faith was filed in federal court).

Priest v. United States, 2011 WL 5023277 (M.D. Tenn. Oct. 20, 2011) (FTCA claims sounded in medical negligence, not ordinary negligence, and thus certificate of good faith was required; extraordinary cause to excuse filing of certificate not present; no evidence that medical records were withheld by defendant and no evidence that plaintiff sought expert testimony, distinguish Truth supra).

Mayo v. United States, 785 F.Supp. 2d 692 (M.D. Tenn. 2011) (FTCA claims sounded in medical negligence, not ordinary negligence, and thus certificate of good faith was required; extraordinary cause to excuse filing of certificate not present).

Truth v. Eskioglu, 781 F. Supp. 630 (M.D. Tenn. 2011) (failure of defendant to provide patient with full medical records excused patient from filing a certificate of good faith; in any event, misrepresentation case against doctor would have survived as a claim of ordinary negligence).

Williams v. United States, 754 F. Supp. 2d 942 (W.D. Tenn. 2010) (certificate of good faith applies to claims filed under the FTCA because the requirement is one of substantive law; simply supplying medical records to the defendant does not meet the requirements of a certificate of good faith).

Maliani v. Vanderbilt University Medical Center, 2010 WL 4054268 (M.D. Tenn. Oct. 15, 2010) (medical malpractice claims dismissed for failure to give notice and for failure to file a certificate of good faith).

Williams v. United States, 2010 WL 1957238 ( W.D. Tenn. May 12, 2010) (medical malpractice claim under FTCA should not be dismissed for failure to file a certificate of good faith because notice of claim was given under FTCA before the law required notice and the filing of a certificate of good faith).

Jenkins v. Marvel, 683 F. Supp. 2d 626 (E.D.Tenn. 2010) (pre-suit notice requirement met given unique circumstances of case given that case had been previously filed before pre-suit notice was required and voluntarily dismissed; certificate of good faith was filed).