Myers v. Amisub (SFH), Inc.

Decision Date04 October 2012
Docket NumberNo. W2010–00837–SC–R11–CV.,W2010–00837–SC–R11–CV.
Citation382 S.W.3d 300
PartiesCurtis MYERS v. AMISUB (SFH), INC., d/b/a St. Francis Hospital, et al.
CourtTennessee Supreme Court

382 S.W.3d 300

Curtis MYERS
v.
AMISUB (SFH), INC., d/b/a St. Francis Hospital, et al.

No. W2010–00837–SC–R11–CV.

Supreme Court of Tennessee,
at Jackson.

April 4, 2012 Session.
Oct. 4, 2012.


[382 S.W.3d 303]


Bill M. Wade, Memphis, Tennessee, for the appellant, Curtis Myers.

Joseph M. Clark and Edd Peyton, Memphis, Tennessee, for the appellees, Arsalan Shirwany, M.D., and East Memphis Chest Pain Physicians, PLLC; Marty R. Phillips and Michelle Greenway Sellers, Memphis, Tennessee, for the appellee, Tennessee EM–I Medical Services, P.C.; W. Timothy Hayes, Jr., and Kimberly Cross Shields, Memphis, Tennessee, for the appellee, AMISUB (SFH), Inc., d/b/a St. Francis Hospital.


OPINION
SHARON G. LEE, J., delivered the opinion of the Court, in which, GARY R. WADE, C.J., JANICE M. HOLDER, CORNELIA A. CLARK, and WILLIAM C. KOCH, JR., JJ., joined.

SHARON G. LEE, J.

The plaintiff filed a medical malpractice action against several health care providers and subsequently dismissed the lawsuit. He re-filed the action after the legislature enacted Tennessee Code Annotated section 29–26–121, which requires a plaintiff who files a medical malpractice suit to give health care providers who are to be named in the suit notice of the claim sixty days before filing the suit; and Tennessee Code Annotated section 29–26–122, which requires a plaintiff to file with the medical malpractice complaint a certificate of good faith confirming that the plaintiff has consulted with an expert who has provided a signed written statement that there is a good-faith basis to maintain the action. The defendants moved to dismiss the complaint based on the plaintiff's failure to comply with Tennessee Code Annotated sections 29–26–121 and 122. The trial court denied the motion, finding that the plaintiff's original suit constituted substantial compliance with the statutes' requirements

[382 S.W.3d 304]

and that extraordinary cause existed to excuse compliance with the requirements of Tennessee Code Annotated section 29–26–121. Upon interlocutory appeal, the Court of Appeals reversed. We hold that the statutory requirements that a plaintiff give sixty days pre-suit notice and file a certificate of good faith with the complaint are mandatory requirements and not subject to substantial compliance. The plaintiff's failure to comply with Tennessee Code Annotated section 29–26–122 by filing a certificate of good faith with his complaint requires a dismissal with prejudice.

Curtis Myers suffered a stroke in July of 2006 and was treated by various health care providers. On January 5, 2007, Mr. Myers filed a complaint in the Circuit Court for Shelby County, alleging medical malpractice against the following health care providers who had treated Mr. Myers: AMISUB (SFH), Inc., d/b/a St. Francis Hospital; Sheila B. Thomas, D.O.; Arsalan Shirwany, M.D.; UT Medical Group, Inc.; Larry K. Roberts, M.D.; and Memphis Physicians Radiological Group, P.C. By subsequent amendment of April 20, 2007, he added as defendants Tennessee EM–I Medical Services, P.C., and East Memphis Pain Physicians, PLLC.1

Mr. Myers's original complaint was still pending when, on May 15, 2008, the legislature enacted Tennessee Code Annotated sections 29–26–121 and 122, 2 which set forth new requirements relative to medical malpractice actions in this state. Both sections took effect on October 1, 2008. On October 21, 2008, Mr. Myers voluntarily dismissed his claim. Thereafter, on June 11, 2009, the legislature enacted amendments to Tennessee Code Annotated sections 29–26–121 and 122, effective July 1, 2009, as to all actions filed on or after that date.3 Mr. Myers re-filed his cause of action on September 30, 2009.4 The statutory changes reflected in Tennessee Code Annotated sections 29–26–121 and 122, as amended, were in effect when Mr. Myers re-filed his malpractice suit.

Tennessee Code Annotated section 29–26–121 requires sixty days pre-suit notice in all medical malpractice cases, providing in pertinent part as follows:

(a)(1) Any person ... asserting a potential claim for medical malpractice shall give written notice of the potential claim to each health care provider that will be a named defendant at least sixty (60) days before the filing of a complaint based upon medical malpractice in any court of this state.

(2) The notice shall include:

[382 S.W.3d 305]

(A) The full name and date of birth of the patient whose treatment is at issue;

(B) The name and address of the claimant authorizing the notice and the relationship to the patient, if the notice is not sent by the patient;

(C) The name and address of the attorney sending the notice, if applicable;

(D) A list of the name and address of all providers being sent a notice; and

(E) A HIPAA compliant medical authorization permitting the provider receiving the notice to obtain complete medical records from each other provider being sent a notice.

....

(b) If a complaint is filed in any court alleging a claim for medical malpractice, the pleadings shall state whether each party has complied with subsection (a) and shall provide the documentation specified in subdivision (a)(2). The court may require additional evidence of compliance to determine if the provisions of this section have been met. The court has discretion to excuse compliance with this section only for extraordinary cause shown.

(c) When notice is given to a provider as provided in this section, the applicable statutes of limitations and repose shall be extended for a period of one hundred twenty (120) days from the date of expiration of the statute of limitations and statute of repose applicable to that provider.

Tenn.Code Ann. § 29–26–121 (Supp.2011).


Tennessee Code Annotated section 29–26–122 requires the filing of a certificate of good faith in all medical malpractice cases requiring expert testimony, confirming that an expert has signed a written statement that there is a good faith basis to maintain the action:

(a) In any medical malpractice action in which expert testimony is required by § 29–26–115, the plaintiff or plaintiff's counsel shall file a certificate of good faith with the complaint. If the certificate is not filed with the complaint, the complaint shall be dismissed, as provided in subsection (c), absent a showing that the failure was due to the failure of the provider to timely provide copies of the claimant's records requested as provided in § 29–26–121 or demonstrated extraordinary cause. The certificate of good faith shall state that:

(1) The plaintiff or plaintiff's counsel has consulted with one (1) or more experts who have provided a signed written statement confirming that upon information and belief they:

(A) Are competent under § 29–26–115 to express an opinion or opinions in the case; and

(B) Believe, based on the information available from the medical records concerning the care and treatment of the plaintiff for the incident or incidents at issue, that there is a good faith basis to maintain the action consistent with the requirements of § 29–26–115; or

(2) The plaintiff or plaintiff's counsel has consulted with one (1) or more experts who have provided a signed written statement confirming that upon information and belief they:

(A) Are competent under § 29–26–115 to express an opinion or opinions in the case; and

(B) Believe, based on the information available from the medical records reviewed concerning the care and treatment of the plaintiff for the incident or incidents at issue and, as appropriate, information from the

[382 S.W.3d 306]

plaintiff or others with knowledge of the incident or incidents at issue, that there are facts material to the resolution of the case that cannot be reasonably ascertained from the medical records or information reasonably available to the plaintiff or plaintiff's counsel; and that, despite the absence of this information, there is a good faith basis for maintaining the action as to each defendant consistent with the requirements of § 29–26–115. Refusal of the defendant to release the medical records in a timely fashion or where it is impossible for the plaintiff to obtain the medical records shall waive the requirement that the expert review the medical record prior to expert certification.

....

(c) The failure of a plaintiff to file a certificate of good faith in compliance with this section shall, upon motion, make the action subject to dismissal with prejudice.... If the allegations are stricken, no defendant, except for a defendant who complied with this section, can assert, and neither shall the judge nor jury consider, the fault, if any, of those identified by the allegations. The court may, upon motion, grant an extension within which to file a certificate of good faith if the court determines that a health care provider who has medical records relevant to the issues in the case has failed to timely produce medical records upon timely request, or for other good cause shown.

....

(4) A certificate of good faith shall disclose the number of prior violations of this section by the executing party.

Tenn.Code Ann. § 29–26–122 (Supp.2011).


When Mr. Myers re-filed his complaint on September 30, 2009, he did not give pre-suit notice to the defendants as required by Tennessee Code Annotated section 29–26–121, nor did he file a certificate of good faith with the complaint as required by Tennessee Code Annotated section 29–26–122. The defendants filed a Tennessee Rule of Civil Procedure 12.02(6)5 motion to dismiss for failure to state a claim upon which relief can be granted based on Mr. Myers's failure to comply with the statutes. In response, Mr. Myers asserted that Tennessee Code Annotated section 29–26–121 was satisfied because the defendants had notice of the re-filed cause of action from the proceedings in the original suit and that the certificate of good faith requirement of Tennessee Code Annotated section 29–26–122 was satisfied by expert disclosures filed in the original suit. The trial court denied the motion...

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