Certificates of Good Faith After Defendant Alleges Fault

          Yet another case about the Tennessee law requiring certificates of good faith in medical malpractice (now called health care liability) cases, this one with a twist.

           In Sirbaugh v. Vanderbilt Univ., d/b/a Vanderbilt Univ. Med. Ctr., No. M2014-00153-COA-R9-CV (Tenn. Ct. App. Dec. 30, 2014), plaintiff originally brought suit against two defendants related to a surgical sponge being left in her body. In this initial filing, plaintiff gave proper pre-suit notice to the defendants and attached a certificate of good faith to her complaint in accordance with the Health Care Liability Act. When the original defendants filed their answer, they asserted comparative fault against two non-parties. Pursuant to Tenn. Code Ann. § 29-26-122(b), these original defendants were required to file a certificate of good faith regarding their comparative fault allegations against the new non-parties, but plaintiff chose to waive that requirement under § 29-26-122(c).

               After the answer was filed, plaintiff amended her complaint to add the two non-parties that defendant had named. When filing her amended complaint, though, she did not file a new certificate of good faith. The new defendants moved to dismiss based on this failure. Plaintiff argued that the requirement to file a good faith certificate only applied to the initial complaint, with plaintiff’s counsel asserting that if the legislature “had meant that Plaintiff had to file a certificate of good faith upon waiving the Defendant’s obligation to do so, they would have said that.” Plaintiff argued that the statute made a distinction between the process for filing an initial health care liability complaint and filing an amended complaint based on an allegation of comparative fault. If the processes did not vary, plaintiff’s counsel asserted that the statutes allowing for waiver would essentially have no meaning. The new defendants, however, argued that plaintiff’s “waiver of the Original Defendants’ requirement to file a certificate of good faith addressing their comparative fault claims did not release her from the obligation to file a certificate of good faith when she added the New Defendants to the lawsuit.”

               The trial court ruled that plaintiff did not have to file a certificate of good faith when adding the new defendants but granted interlocutory appeal. The Court of Appeals subsequently overturned this decision, remanding with an order to dismiss the case as to the new defendants.

               In its analysis, the Court of Appeals noted that the Supreme Court has held certificates of good faith to be mandatory, requiring strict compliance with the statute. The Court emphasized that Tenn. Code Ann. §29-26-122(a)(2)(B), a portion of the certificate of good faith statute, “specifically references ‘each defendant.’” When considering the interplay of a defendant who alleges comparative fault in its answer, the Court stated that a plaintiff in such a situation has three options: 1) let the defendant file a certificate of good faith as required by the statute and then either file suit against the non-party subject to 29-26-122(a) or risk fault being assigned to the non-party; 2) waive the requirement that the defendant file a certificate of good faith, then either file suit against the non-party subject to 29-26-122(a) or risk fault being assigned to the non-party; or 3) if the defendant fails to file a certificate of good faith, move to strike the comparative fault allegations.

               When considering the instant case, then, the Court determined that after plaintiff learned about the potential new parties through the comparative fault allegations, waived defendant’s obligation to file a good faith certificate, and decided to file her amended complaint adding the new defendants, she was required to file a certificate of good faith as to those new parties. The liability was based on different facts and a new expert review was necessary to comply with the statutory requirements. “[Plaintiff] could not rely on the certificate of good faith filed with the initial complaint because that certificate was predicated on an expert’s belief that there was a good faith basis to maintain the cause of action against the Original Defendants and not the New Defendants.” Accordingly, the Court held that the claims against the new defendants should be dismissed.

                As I read the statute, the plaintiff can rely on an appropriate certificate of good faith actually filed by the defendant because, at the end of the day, the ultimate burden of proof on the fault of the "new" defendant is on the "old" defendant asserting fault.  The "new" defendant  has a right to a piece of paper that a qualified expert thinks there is a good faith basis for the claim against it, and whether that comes from the "old" defendant who has the ultimate burden of proof on the issue or the plaintiff should not make any difference.  

                  I think it is also clear that if the defendant, for whatever reason, doesn’t file a certificate of good faith a plaintiff can step in and file one and assert a claim against the "new" defendant.  But the Court of Appeals tells us here that someone must do it, and that the plaintiff’s decision to waive compliance with the good faith certificate provision does not mean that the "new" defendant is not entitled to a certificate of good faith.

                  The scary thing here is that by waiving the filing of a certificate of good faith the "old" defendant will presumably have an empty chair to blame at trial, forcing the plaintiff to in effect defend the empty chair. If the plaintiff had not waived the filing of a certificate of good faith, the plaintiff could have moved the strike the allegations of fault against the non-party health car providers as an insufficient affirmative defense or, as indicated above, obtained its own certificate of good faith and filed suit against the non-party providers.  Thus, plaintiff is in the worst of all worlds.

                  All that said, no court has yet ruled that a plaintiff may rely on the "old" defendant’s certificate of good faith against a "new" defendant.  Thus, the belt and suspenders approach would be for the plaintiff electing to bring suit against the "new" defendant to also file a certificate of good faith against that "new" defendant.  As I said, I don’t think that is necessary given the language of the statute but this case sheds no particular light on that subject and there is no case directly on point.