Amended Medical Malpractice Complaint Not Subject to Certificate of Good Faith Requirement when Initial Action was Filed Before October 1, 2008

Tenn. Code Ann. Sec. 29-26-122 requires medical malpractice complaints to be supported by a certificate of good faith. This statute became effective October 1, 2008, yet because health care cases can linger for years in pre-trial stages, many cases filed before that date are still active. The Tennessee Court of Appeals recently considered how the certificate of good faith statute affects amended pleadings in cases originally filed before October 1, 2008.

In Rogers v. Jackson, No. M2013-02357-COA-R3-CV (Tenn. Ct. App. May 19, 2014), plaintiff filed a medical malpractice suit regarding the death of his wife. The original complaint was filed on February 1, 2008. Defendants filed an answer, then on October 2, 2008 moved to amend their answer to assert comparative fault against a second doctors group as well as the deceased patient. The motion to amend was granted. Based on this amended answer, plaintiff filed an amended complaint on December 29, 2008, adding this additional doctor and his group as defendants in the suit.

Arguing that the amended pleadings were filed after the implementation of the certificate of good faith requirement, the added defendants filed a motion to strike the allegations of fault in the amended answer and amended complaint based on the argument that no certificates of good faith were filed regarding the claims against them. The trial court denied the added defendants The Tennessee Court of Appeals, however, affirmed the trial courts decision to allow the case to proceed against the defendants named in both the original and the amended complaint.

The added defendants argued that the amended complaint started a new action against them, and was thus subject to the certificate of good faith requirement. The Court of Appeals explained, though, that the plaintiff had amended his complaint pursuant to Tenn. Code Ann. Sec. 20-1-119, which allows a plaintiff ninety days to amend his complaint or initiate a separate action against a party which was alleged by a defendant to have caused or contributed to the plaintiffs injury. This statute incorporates Tenn. R. Civ. P. 15, which provides that if the claim asserted in an amended pleading arose out of the same conduct or occurrence as the original pleading, then the amendment relates back to the date the original pleading was filed and is not considered a new action. Because the amended complaint arose out of the same medical treatment as the original complaint, the amended complaint related back to the February 1, 2008 filing date and no certificate of good faith was required.

Based on a proper reading of the certificate of good faith statute, the statute allowing amendments when a defendant alleges comparative fault against a non-party, and the Tennessee Rules of Civil Procedure, this appears to be the correct result. There is at least one other way the court could have reached this same result, but this is a straight-forward way to get there.

Look for an effort to appeal this to the Tennessee Supreme Court.  I predict a Rule 11 application not because an appeal would have merit, but because (a) this is a health care liability case and if a judge or jury finds against a doctor an appeal is mandated by God; and (b) the hope that the if Lt. Gov. Ramsey is successful in defeating three of our justices in the August election the new appointees to the court will be anti-plaintiff.