Expert Affidavit Does Not Satisfy Certificate of Good Faith Requirement

While some parts of the Health Care Liability Act (HCLA) are making their way towards substantial compliance, the Court of Appeals recently reiterated that the requirement to file a certificate of good faith under Tenn. Code Ann. § 29-26-122 is mandatory. In Dennis v. Smith, No. E2014-00636-COA-R3-CV (Tenn. Ct. App. March 31, 2015), plaintiffs filed an HCLA claim against defendant. Defendant filed a motion to dismiss on the grounds (1) that plaintiffs did not comply with the pre-suit notice requirements because plaintiffs did not attach a HIPAA compliant authorization form to the notice letter, did not attach a list of all heath care providers receiving notice, and did not list the address of the claimant, and (2) that plaintiffs failed to file a certificate of good faith and failed to disclose the number of prior disclosure violations under § 29-26-122(d)(4). The trial court granted defendant’s motion to dismiss, and the Court of Appeals affirmed.

On appeal, the Court focused solely on the certificate of good faith issue, as failure to comply with the certificate of good faith requirements leads to dismissal with prejudice and would therefore be dispositive of the case. Plaintiffs here “concede[d] in their brief on appeal that instead of filing a certificate of good faith in compliance with the statute, plaintiffs filed a statement signed by their expert.” According to plaintiffs, this filing “over-complied by providing more information than the statute requires.” Essentially, plaintiffs argued that they provided the required information plus some and thus should be excused for not technically complying with the statute. The Court firmly disagreed.

The Court pointed out that plaintiffs failed to both file a statutorily required certificate of good faith and disclose the number of prior violations, despite the fact that plaintiffs argued that with zero violations there was nothing to disclose. The Court held that Tennessee’s “Supreme Court has ruled that filing a certificate of good faith is mandatory. As plaintiffs failed to file a certificate of good faith, the fact that they filed something else that provided other, or more, information is immaterial. Furthermore,… disclosure of the number of prior violations by the person executing the certificate of good faith… also is mandatory and failure to make this disclosure makes the claim subject to dismissal with prejudice[.]” (internal citations and quotations omitted). The Court accordingly affirmed the trial court’s dismissal of the case with prejudice.

The moral of this case is quite simple—use the statute and file exactly what is required thereunder. Attorneys should not take it upon themselves to make their own rules regarding what does or does not satisfy the pre-suit notice and certificate of good faith requirements. Follow the statute as closely as possible, as failure to do so can lead to dire consequences for your client. As the Court noted in this opinion, “The requirements of these statutes are precisely stated. The statutes provide clear guidance and detailed instruction for meeting those requirements, and it is not our prerogative to rewrite the statutes.”

It is hard for those of us who believe that substance should trump form to accept the current state of the law in health care liabilty litigation.  But that is where we are, and the failure to acknowledge it and act accordingly has potential dire consequences at worst and will cause sleepness nights at best.

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