IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
SEPTEMBER 9, 2010 Session
CAROL L. BRANDON v. WILLIAMSON MEDICAL CENTER, ET AL.
Direct Appeal from the Circuit Court for Williamson County
No. 09471 James Martin, Judge
No. M2010-00321-COA-R3-CV - Filed November 9, 2010
Plaintiff timely filed a complaint for medical malpractice, but failed to file a certificate of
good faith within ninety days as required. Defendants filed a motion to dismiss, and Plaintiff
subsequently filed a motion for enlargement pursuant to Rule 6.02 and a proposed certificate
of good faith. The trial court granted Defendants’ motion, finding Plaintiff had failed to
demonstrate “good cause” for failing to file the required certificate. Because we find that
Plaintiff has failed to demonstrate either “good cause” or “excusable neglect,” we affirm the
trial court’s dismissal of Plaintiff’s complaint.
Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Circuit Court Affirmed
A LAN E. H IGHERS, P.J., W.S., delivered the opinion of the Court, in which D AVID R. F ARMER,
J., and J. S TEVEN S TAFFORD, J., joined.
Robert L. Green, Al H. Thomas, Memphis, Tennessee, for the appellant, Carol L. Brandon
Bryan Essary, Heather Piper-Coke, Nashville, Tennessee, for the appellee, Williamson
Medical Center
Phillip North, Renee Levay Stewart, Judith Ragan, Nashville, Tennessee, for the appellee,
Bernard L. Burgess, Jr., M.D.
E. Reynolds Davies, Jr., John T. Reese, Nashville, Tennessee, for the appellee, Eugene B.
Arnett, III, M.D.
OPINION
I. F ACTS & P ROCEDURAL H ISTORY
According to the complaint of Carol L. Brandon (“Plaintiff”), on May 11, 2008,
Plaintiff presented to the Williamson Medical Center emergency room with complaints of
severe abdominal pain. Within two hours of presentation, a small bowel obstruction was
confirmed by an abdominal CT scan. Bernard L. Burgess, Jr., M.D., who had previously
surgically repaired at least one bowel obstruction in Plaintiff was notified of these results.
However, according to Plaintiff, Dr. Burgess waited eight hours before evaluating Plaintiff,
and another eight hours before performing an exploratory laparotomy, which revealed
mesenteric ischemia with necrotic bowel extending from the jejunum to the ileum, resulting
in the resection of approximately 20 feet of Plaintiff’s necrotic small intestine.
On May 11, 2009, while acting pro se, Plaintiff provided written notice of her
potential claim for medical malpractice to Williamson Medical Center, Dr. Burgess, and
emergency room physician Eugene B. Arnett, III., M.D. (“Defendants”). According to her
Affidavit, Plaintiff attempted to engage an attorney in Nashville or Franklin, Tennessee, but
could find no attorney willing to take her case. Therefore, on August 7, 2009, again acting
pro se, she filed a complaint for medical malpractice, claiming, among other damages,
physical injuries and loss of employment as a result of Defendants’ negligence. Neither
Plaintiff’s written notice, nor her complaint included a Certificate of Good Faith. In her
Affidavit, Plaintiff states that no Certificate of Good Faith was included “because [she]
didn’t know that was a requirement[,] . . . and [she] was trying to deal with this lawsuit on
[her] own because [she] couldn’t get any attorney in Nashville or Franklin, Tennessee to take
[her] case.”
After attempting unsuccessfully to engage an attorney in the Nashville area, Plaintiff
contacted Memphis attorney Robert L. Green on September 22, 2009. According to Plaintiff,
Plaintiff sent Mr. Green a copy of her complaint as well as her medical records. Mr. Green
contacted attorney Al H. Thomas to work with him based on Mr. Thomas’ “prior
experience[.]” Both attorneys advised Plaintiff that they would not accept her case until they
had her records reviewed by a doctor who was competent to testify and who held the opinion
that her injuries were the result of Defendants’ failure to exercise the recognized standard of
care. In late October 2009, counsel informed Plaintiff that they had received written
confirmation from a doctor in Virginia willing to provide such opinion.
On November 13, 2009, Dr. Burgess filed a motion to dismiss, which was later
adopted by Williamson Medical Center, citing Plaintiff’s failure to file a Certificate of Good
Faith. On November 24, 2009, attorneys Green and Thomas filed a Notice of Appearance,
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and November 30, twenty-five days after the deadline for filing a Certificate of Good Faith,
filed a motion to enlarge the time for filing such certificate pursuant to Tennessee Rule of
Civil Procedure 6.02–based upon her alleged ignorance to the requirement–as well as a
proposed certificate. In her motion to enlarge, Plaintiff presented her evidence of “Good
Faith” as follows:
In this case the Plaintiff was attempting to represent herself and simply
did not have the knowledge or ability to do so. She was acting in good faith
to file a claim for perceived good reason. There is nothing to indicate a lack
of good faith on her part.
Additionally, under the heading “Reason Why the Filing Was Late[,]” Plaintiff explained:
[H]ere Carol L. Brandon had no independent knowledge of the need to file a
Certificate of Good Faith and she was not put on Notice of such a need by
anybody in the Clerk’s office at the time she filed the Complaint. [No
contention is made that the Clerk had any duty to inform or advise but simply
to emphasize the fact that she didn’t know of the need to file the Certificate of
Good Faith with her complaint.]
Following a hearing, the trial court, on January 15, 2010, entered an Order granting the
motions to dismiss of Williamson Medical Center and Dr. Burgess based upon Plaintiff’s
failure to file a Certificate of Good Faith.1 A subsequent Order granting dismissal as to Dr.
Arnett was entered on January 20, 2010. Plaintiff filed her Affidavit on February 4, 2010,
and her Notice of Appeal on February 5, 2010.
II. I SSUE P RESENTED
Appellant presents the following issue for review:
1. Whether the trial court erred in denying Plaintiff’s Rule 6.02 Motion to Enlarge Time
to File Certificate of Good Faith.
1
In its Order, the trial court noted that Plaintiff had failed to submit an affidavit establishing the facts
relied upon to show “good cause” for an enlargement of time. However, it stated that even if the reasons
alleged in Plaintiff’s motion to enlarge were accepted as true, that such facts did not constitute good cause.
The trial court then allowed Plaintiff thirty days to submit an affidavit in support of her motion for appellate
purposes, specifically stating that the facts in the affidavit shall not exceed the scope of the facts asserted in
Plaintiff’s motion for enlargement.
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For the following reasons, we affirm the trial court’s dismissal of Plaintiff’s complaint.
III. D ISCUSSION
Tennessee Code Annotated section 29-26-122 sets forth a mandatory Certificate of
Good Faith requirement applicable to medical malpractice actions filed on or after October
1, 2008:2
(a) Within ninety (90) days after filing a complaint 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 stating 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 plaintiff or others with knowledge of the incident or incidents at
2
A 2009 amendment requires the certificate of good faith to be filed simultaneously with the
complaint. However, the 2009 amendment applies “only to those action in which the required notice is
given on or after July 1, 2009[.]” Because Plaintiff provided written notice on May 11, 2009, she was
allowed ninety days within which to file her certificate of good faith.
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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 plaintiffs 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.
Tenn. Code Ann. § 29-26-122. Failure to comply with the Certificate of Good Faith filing
requirements “shall, upon motion, make the action subject to dismissal with prejudice.”
Tenn. Code Ann. § 29-26-122(c). However, “[t]he 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.” Id. (emphasis
added).
As we stated above, the trial court, in granting Defendants’ motions to dismiss, found
that Plaintiff had failed to demonstrate “good cause” for failing to timely file a certificate of
good faith. On appeal, Plaintiff argues that because her motion for enlargement was pursuant
to Tennessee Rule of Civil Procedure 6.02,3 that the trial court should have utilized Rule
6.02’s “excusable neglect” standard rather than the “good cause” standard set forth in the
Medical Malpractice Act.
We find it unnecessary to address the interplay between the Tennessee Rules of Civil
Procedure and Tennessee Code Annotated section 29-26-122, as Plaintiff has failed to
demonstrate either “good cause” or “excusable neglect” in this case. Our review under either
standard is abuse of discretion. Tenn. Code Ann. § 29-26-122(c); Tenn. R. Civ. P. 6.02.
Unfortunately, the Tennessee Medical Malpractice Act, Tennessee Code Annotated
section 29-26-115, et seq., does not define “good cause” and we have found no case law
defining the phrase with specific regard to section 29-26-122’s certificate of good faith
3
Tennessee Rule of Civil Procedure 6.02 provides in part:
When by statute or by these rules or by a notice given thereunder or by order of court an act
is required or allowed to be done at or within a specified time, the court for cause shown
may at any time in its discretion . . . (2) upon motion made after the expiration of the
specified period permit the act to be done, where the failure to act was the result of
excusable neglect[.]
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requirement. However, “good cause” has been considered on a limited basis with respect to
other requirements. In G. F. Plunk Construction Co. Inc. v. Barrett Properties, Inc., 640
S.W.2d 215 (Tenn. 1982), the appellant filed a notice of appeal with the trial court, but notice
of the filing was not served upon opposing counsel or the appellate court as required by
Tennessee Rule of Appellate Procedure 5. After expiration of the notice period, Appellant
sought an enlargement of the time to file his notice; however, our Supreme Court held that
Appellant’s counsel’s good faith belief that notice had been sent did not constitute “good
cause.” Id. at 217-18.
In H.D. Edgemon Contracting Co., Inc. v. King, 803 S.W.2d 220 (Tenn. 1991) our
Supreme Court considered whether “good cause” had been demonstrated under Tennessee
Rules of Appellate Procedure 2 and 21(b) where Appellant’s counsel failed to timely file his
appellate brief and statement of the evidence. Appellant claimed the documents were
untimely “due to the oversight of Plaintiff’s counsel in not completing same before becoming
involved in trials and leaving on vacation directly following the trials.” Id. at 222. In finding
that good cause had not been shown, the Court noted that Appellant had failed to request a
filing extension prior to the expiration of the filing deadline, stating that “[r]equests of
extensions of time made before the expiration of time ‘are granted with a much more
generous hand.’” Id. at 223 (quoting G. F. Plunk Constr., 640 S.W.2d at 217). The Court
further noted the importance of mandatory time schedules to the orderly process of handling
appeals. Id.
Despite the absence of a clear definition of “good cause” in either prior statutory or
case law, we are satisfied that good cause has not been demonstrated in this case. At the trial
level, Plaintiff claimed her failure to timely file a certificate of good faith was due to her
initial inability to retain an attorney and her ignorance of the certificate of good faith filing
requirement. However, we find Plaintiff’s pro se status irrelevant and her claims of
ignorance suspect.
Parties who decide to represent themselves are entitled to fair and equal
treatment by the courts. Whitaker v. Whirlpool Corp., 32 S.W.3d 222, 227
(Tenn. Ct. App. 2000); Paehler v. Union Planters Nat'l Bank, Inc., 971 S.W.2d
393, 396 (Tenn. Ct. App. 1997). The courts should take into account that
many pro se litigants have no legal training and little familiarity with the
judicial system. Irvin v. City of Clarksville, 767 S.W.2d 649, 652 (Tenn. Ct.
App. 1988). However, the courts must also be mindful of the boundary
between fairness to a pro se litigant and unfairness to the pro se litigant's
adversary. Thus, the courts must not excuse pro se litigants from complying
with the same substantive and procedural rules that represented parties are
expected to observe. Edmundson v. Pratt, 945 S.W.2d 754, 755 (Tenn. Ct.
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App. 1996); Kaylor v. Bradley, 912 S.W.2d 728, 733 n.4 (Tenn. Ct. App.
1995).
Hessmer v. Hessmer, 138 S.W.3d 901, 903 (Tenn. Ct. App. 2003). Moreover, despite her
claim of ignorance of the certificate of good faith requirement, Plaintiff, acting pro se, gave
the required pre-suit notice, withheld her complaint during the mandatory sixty-day waiting
period, and then filed a rather sophisticated complaint on the date the one-year statute of
limitations was set to expire. See Tenn. Code Ann. § 29-26-116, -121.
Even if Appellant’s pro se status would have been sufficient to excuse her failure to
file a certificate of good faith, Appellant’s affidavit clearly shows that she made contact with
attorney Green on September 22, 2009, and that by late October, prior to the expiration of
the 90-day period on November 5, attorneys Green and Thomas had received written
confirmation from an expert willing to provide the opinion necessary to file a certificate of
good faith. Plaintiff offers no explanation as to why, after consulting with attorneys and
obtaining the required expert testimony within the 90-day period, her motion for enlargement
and her proposed certificate of good faith were not filed until November 30, more than two
weeks after the filing of Defendants’ motion to dismiss. Based on the evidence before us,
we cannot find that good cause has been demonstrated.
Moreover, we find that Plaintiff has failed to present sufficient evidence of excusable
neglect. In Williams v. Baptist Mem'l Hosp., 193 S.W.3d 545, 550-51 (Tenn. 2006), the
Tennessee Supreme Court “expressly adopted the following analysis for ‘excusable neglect’
under Tenn. R. Civ. P. 6.02(2) that the United States Supreme Court had set forth for
analyzing claims of ‘excusable neglect’ under Fed. R. Civ. P. 6(b)(2)[,]”
A party’s failure to meet a deadline may have causes ranging from forces
beyond its control to forces within its control. . . . The former will almost
always substantiate a claim of excusable neglect; the latter will not. However,
neglect extends to more than just acts beyond a party's control and intentional
acts. It encompasses, “simple, faultless omissions to act and, more commonly,
omissions caused by carelessness.”
World Relief Corp. of Nat’l Ass’n of Evangelicals v. Messay, No. M2005-01533-COA-R3-
CV, 2007 WL 2198199, at *7 (Tenn. Ct. App. July 26, 2007) (quoting Williams, 193 S.W.3d
at 551)). While negligence may constitute excusable neglect, “not all negligence can be
indulged.” State ex rel. Sizemore v. United Physicians Ins. Risk Retention Group, 56
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S.W.3d 557, 567 (Tenn. Ct. App. 2001). “To do that would read out of the excusable neglect
principle the requirement that the neglect must first be found excusable.” Id. Instead,
ascertaining whether neglect is “excusable” is an equitable determination “‘taking account
of all relevant circumstances surrounding the party’s omission.’” Id. (quoting Pioneer Inv.
Servs. Co. V. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395 (1993)). The determination
should be made after consideration of the following factors:
(1) the danger of prejudice to the party opposing the late filing, (2) the length
of the delay and its potential impact on proceedings, (3) the reason why the
filing was late and whether that reason or reasons were within the filer’s
reasonable control, and (4) the filer’s good or bad faith.
Id.; see also Williams, 193 S.W.3d at 551. When an enlargement request is made after the
original time has lapsed, the requesting party must demonstrate both excusable neglect and
that the opposing party has not been prejudiced by the delay. Kenyon v. Handal, 122 S.W.3d
743, 756 (Tenn. Ct. App. 2003) (citing Douglas v. Estate of Robertson, 876 S.W.2d 95, 97
(Tenn. 1994); Wagner v. Frazier, 712 S.W.2d 109, 113 (Tenn. Ct. App. 1986)).
“[T]he courts have emphasized that the reasons leading to the delay remain a very
important–perhaps the single most important–factor in determining whether neglect should
be excusable.” Id. at 570 (citing Thompson v. E.I. DuPont de Nemours & Co., Inc., 76 F.3d
530, 534 (4th Cir. 1996); City of Chanute v. Williams Natural Gas Co., 31 F.3d 1041, 1046
(10th Cir. 1994); Thomas v. Bd. of Educ., 177 F.R.D. 488, 489-90 (D. Kan. 1997)). In
assessing the reasons for delay, “courts look at (1) whether the circumstances involved were
under a party’s own control . . . and (2) whether the party was paying appropriate attention
to the matter in light of the surrounding circumstances.” Id. (citations omitted). “[C]ourts
have been reluctant to find excusable neglect in circumstances where called-for action was
under the control of the party seeking relief and that party failed to act reasonably to make
sure that the act was performed.” Id. (citations omitted).
At the trial level, Plaintiff claimed her failure to timely file a certificate of good faith
was due to her initial inability to retain an attorney and her ignorance to the certificate of
good faith filing requirement. On appeal, Plaintiff attempts to offer an additional
explanation–that “[s]he simply did not have the ability to secure the testimony of a competent
medical expert so as to be able to file a Certificate of Good Faith.” Because Plaintiff did not
raise this argument before the trial court, we will not consider it on appeal. Tenn. R. App.
P. 13. However, consideration of this new explanation would not alter our finding regarding
excusable neglect. Again, by late October 2009 Plaintiff had consulted with attorneys who
had received written confirmation from an expert willing to provide the opinion necessary
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to file a certificate of good faith. However, without explanation, Plaintiff did not file her
motion for enlargement or proposed certificate until November 30, after Defendants filed a
motion to dismiss, and after the 90-day filing period had lapsed. Plaintiff had the means to
timely file her certificate of good faith and simply failed to do so.
Regarding the other factors, Plaintiff argues that Defendants have made no assertions
of prejudice, that her untimely certificate did not delay the progress of the case, and that she
acted in good faith.
A court may find prejudice where one side has been harmed by loss of
opportunity to present some material aspect of its case. State v. Burns, 6
S.W.3d 453, 463 (Tenn. 1999); Archer v. Archer, 907 S.W.2d 412, 416 (Tenn.
Ct. App. 1995). Prejudice also encompasses other types of harm to parties,
such as the expenditure of money or similar detrimental changes of position
by one side in reliance on the action or inaction of the other. Archer[], 907
S.W.2d at 416. In evaluating whether to allow an untimely filing to be
effective, courts may also find prejudice to the non-requesting party where
allowing the filing would burden the non-requesting party with more pre-trial
discovery, additional trial preparation, and added expense, particularly when
only a limited time remains for more gearing up. TXG Intrastate Pipeline v.
Grossnickle, 716 So.2d 991, 1011 (Miss. 1997).
Sizemore, 56 S.W.3d at 557-58. Defendants claim that allowing Plaintiff’s claim to proceed
would impose additional expenses for pre-trial discovery, trial preparation, and defense costs
to defend an action, which they claim, should have been dismissed based on Plaintiff’s
failure to comply with the certificate of good faith filing requirements. They further claim
that her failure to timely file a certificate of good faith has delayed both discovery and
proceedings on the merits of this case for nearly one year. Finally, as evidence of Plaintiff’s
alleged bad faith, Defendants point out that despite being armed with the required expert
testimony, Plaintiff took no curative action until faced with a motion to dismiss. Considering
all of the relevant circumstances, particularly the absence of an explanation for the delay
between late October and November 30, we find that excusable neglect has not been
demonstrated in this case, and we affirm the trial court’s dismissal of Plaintiff’s complaint.
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IV. C ONCLUSION
For the aforementioned reasons, we affirm the decision of the circuit court. Costs of
this appeal are taxed to Appellant, Carol L. Brandon, and her surety, for which execution
may issue if necessary.
ALAN E. HIGHERS, P.J., W.S.
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