Day on Torts
Where plaintiff filed an exhibit with its HCLA complaint that did not comply with the certificate of good faith requirements, summary judgment for defendant should have been granted.
In Estate of Blankenship v. Bradley Healthcare and Rehabilitation Center, No. E2021-00714-COA-R10-CV, 2022 WL 951256 (Tenn. Ct. App. Mar. 30, 2022), plaintiff filed this HCLA suit alleging that decedent died while a resident of defendant nursing home due to defendant’s negligence. Plaintiff’s complaint stated that Exhibit 7 to the complaint satisfied the HCLA certificate of good faith requirement. Exhibit 7 was a “one-paragraph letter” from a nurse practitioner (NP) which stated that the NP was competent as an expert under the HCLA, that she had “reviewed the medical issues,” and that she had “determined that violations of the standards of care occurred during [decedent’s] residency” at defendant nursing home.
Defendant filed a motion to dismiss, asserting that plaintiff failed to comply with the certificate of good faith requirement found in Tenn. Code Ann. § 29-26-122. In support of this motion, defendant filed the deposition of the NP, wherein she stated that she had reviewed decedent’s medical records “for the sole purpose of assessing whether there were any deviations from the nursing standard of care,” but not from the perspective of “whether those deviations caused Decedent’s death.” (Because the trial court considered this deposition of the NP filed by defendant, the motion should have been considered a motion for summary judgment.) The trial court found that plaintiff had complied with the HCLA, ruling that Exhibit 7 “satisfied the requirements[.]” The trial court also granted plaintiff an extension of time, during which plaintiff filed a new Exhibit 7/ certificate of good faith. In this interlocutory appeal, the Court of Appeals ruled that the trial court erred and summary judgment should have been granted to defendant.
Tenn. Code Ann. § 29-26-122 states that plaintiffs asserting an HCLA claim that requires expert testimony must file a certificate of good faith with their complaint. This certificate of good faith must state that plaintiff has consulted with an expert who has provided a written statement that 1) the expert is competent pursuant to the HCLA and 2) “based on the information available from the medical records…, that there is a good faith basis to maintain the action consistent with the requirements of § 29-26-115.” Tenn. Code Ann. § 29-26-122(a)(1). The issue here was what exactly the statute means by “a good faith basis to maintain the action consistent with the requirements of § 29-26-115,” with plaintiff arguing that this wording did not “require a plaintiff to consult with an expert regarding all of the requirements in § 29-26-115.” The Court of Appeals, however, disagreed.
Tenn. Code Ann. § 29-26-115(a) states that an HCLA plaintiff must prove “the recognized standard of care, that the defendant deviated from the standard of care, and that the plaintiff’s injury was caused by the defendant’s deviation from the standard of care.” The Court of Appeals found that reading § 29-26-115 and § 29-26-122 together made it clear that a certificate of good faith “must indicate that the plaintiff has consulted with at least one qualified expert who reviewed the claims and believes the defendant deviated from the applicable standard of care and that the deviation proximately caused the plaintiff’s injury.” The Court noted that this interpretation “comports with the purpose of the certificate of good faith—weeding out frivolous lawsuits.”
Applying this reasoning to the case at hand, the Court ruled that Exhibit 7 did not satisfy the certificate of good faith requirements. The Court wrote:
Exhibit 7…is a perfunctory letter containing only one paragraph that provides very little information. …[T]he letter…makes no mention of where she is licensed, the locale where she practices, or what she practices. …She never states that she considered whether Decedent’s injury was caused by Defendants’ violations of those standards of care. Exhibit 7, therefore, does not confirm that there is a good faith basis to maintain the lawsuit ‘consistent with the requirements of § 29-26-115.’
The trial court granted plaintiff an extension of time during which plaintiff filed a new certificate of good faith. Tenn. Code Ann. § 29-26-122(c) allows for an extension of time for filing a certificate of good faith to be granted “only if a healthcare provider failed to timely produce relevant medical records or if the plaintiff demonstrates ‘good cause.’” Good cause has been interpreted to mean “a legally sufficient reason,” but does not include “mistakes in calendaring, secretarial shortcomings, and attorney oversight.” (internal citations omitted). The trial court’s reasoning for the extension of time here was that Exhibit 7 “could have, and possibly should have, gone further and/or into more detail.” The Court of Appeals found that this was not a basis for granting an extension of time, and that because the “record contains no evidence that the Estate proffered any justification to support a finding of ‘good cause shown,’” the extension of time should not have been granted.
Because the original Exhibit 7 did not satisfy the certificate of good faith requirements, and because the extension of time should not have been granted, summary judgment for defendant should have been granted.
One important note in this case is that the Court of Appeals specifically distinguished this case from those in which litigants use “the typical certificate of good faith or the form provided by the Administrative Office of the Courts,” even though such form “simply states that a qualified expert was consulted and provided a written statement confirming there is a good faith basis to maintain the lawsuit.” The Court explained: “Our holding here does not render those types of certificates of good faith non-compliant with the statute. This case differs from cases involving those types of certificates because the Estate filed the actual written statement from the expert consulted.”
We have seen fewer cases surrounding the HCLA certificate of good faith lately, as many issues regarding this requirement have been litigated and settled. This case reminds us, though, of the importance of filing a sufficient certificate of good faith with your HCLA complaint.
This opinion was released two months after oral arguments in this case.