IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
February 19, 2014 Session
CARROLL MARIE STOVALL, ET AL. v. UHS OF LAKESIDE, LLC, ET
AL.
Appeal from the Circuit Court for Shelby County
No. CT00600610 John R. McCarroll, Jr., Judge
No. W2013-01504-COA-R9-CV - Filed April 22, 2014
Appellant medical providers appeal the trial court’s denial of their motions to dismiss a
medical malpractice complaint for failure to strictly comply with Tennessee Code Annotated
Section 29-26-122(d)(4). Because we conclude that the trial court had good cause to grant
an extension, within which to file a certificate of good faith, we affirm the decision of the
trial court.
Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Circuit Court is Affirmed
and Remanded.
J. S TEVEN S TAFFORD, J., delivered the opinion of the Court, in which D AVID R. F ARMER, J.,
and H OLLY M. K IRBY J., joined.
Joseph M. Clark and Casey Shannon, Memphis, Tennessee, for the appellants, Olugbenga
Faleye, M.D. and PrimeHealth Medical Center, P.C.
J. Kimbrough Johnson and Andrea N. Malkin, Memphis, Tennessee for the appellants, John
J. Harris, M.D. and John J. Harris, M.D., P.C.
Marty R. Phillips and Ashley D. Cleek, Jackson, Tennessee, for the appellants, UHS
Lakeside, LLC d/b/a Lakeside Behavioral Health System.
Cameron C. Jehl, Carey L. Acerra, and Deena K. Arnold, Memphis, Tennessee, and Deborah
Truby Riordan, Little Rock, Arkansas, for the appellee, Caroll Marie Stovall.
OPINION
I. Procedural History
This case arises out of allegedly negligent medical treatment occurring on December
13 and 16, 2009, which is alleged to have caused the death of the decedent, Charles Michael
Stovall.1 On or about October 7, 2010, Plaintiff/Appellee Carroll Marie Stovall, as Surviving
Spouse and Executrix of the Estate of Charles Michael Stovall (“Appellee”), sent pre-suit
notice to the Defendants/Appellants UHS of Lakeside, LLC d/b/a Lakeside Behavioral
Health System (“Lakeside”); John J. Harris, M.D.; John J. Harris, M.D., P.C. (together with
Dr. Harris, “Dr. Harris”); Olugbenga Faleye, M.D.; and PrimeHealth Medical Center, P.C.
(together with Dr. Faleye, “Dr. Faleye”) (collectively, “Appellants”), including authorizations
for the release of medical records, via certified mail. There is no dispute that the Appellee
fully complied with the pre-suit notice requirements of Tennessee Code Annotated Section
29-26-121.
Appellee filed her complaint on December 13, 2010 in the Shelby County Circuit
Court.2 Attached to her complaint, Appellee also filed a certificate of good faith as required
by Tennessee Code Annotated Section 29-26-122. The certificate of good faith did not,
however, assert that the executing party (in this case, Appellee’s counsel) had no prior
violations of the good faith certificate statute.
Soon thereafter, in the Spring of 2011, the Appellants filed individual motions to
dismiss or answers, raising Appellee’s failure to strictly comply with Tennessee Code
Annotated Section 29-26-122. Specifically, on February 4, 2011, Dr. Faleye filed a motion
to dismiss Appellee’s complaint on the basis that Appellee failed to disclose the number of
prior violations of the statute as required by Tennessee Code Annotated Section 29-26-
122(d)(4). On March 7, 2011, Appellee filed a response to Dr. Faleye’s motion to dismiss the
complaint on the basis of her failure to file a compliant certificate of good faith. Appellee
1
According to Appellee’s brief, Mr. Stovall was admitted to Lakeside for severe depression.
Allegedly, while there, Mr. Stovall was administered a dose of an anti-depressant far beyond the
recommended dose. As a result, Mr. Stovall allegedly suffered from “severe syncopal episodes due
to postural hypotension.” Mr. Stovall was transferred to a hospital, but Lakeside allegedly failed
to send Mr. Stovall’s medical records or otherwise inform the hospital of Mr. Stovall’s
psychiatric symptoms. Mr. Stovall was subsequently admitted to the hospital by Dr. Faleye.
According to the allegations in the Appellee’s brief, Dr. Faleye did not “properly assesss Mr. Stovall’s
psychiatric risks.” While allegedly under the care of Dr. Faleye, Mr. Stovall subsequently hanged himself
and died.
2
Other defendants were named in the complaint, but were later dismissed.
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argued that, because she had no prior violations of the statute to disclose, her certificate of
good faith was not deficient. In addition, Appellee argued that dismissal under the statute was
only appropriate if there was a failure to file a certificate of good faith, but not simply
because the certificate of good faith contained a technical, non-material omission. Appellee
attached a certificate of good faith that showed she had not previously violated the good faith
statute.
On July 6, 2011, Appellee filed an amended complaint. Attached to the amended
complaint was another certificate of good faith, which was fully compliant with Tennessee
Code Annotated Section 29-26-122. At the time of the filing of the amended complaint, both
Dr. Faleye and Lakeside had filed answers to Appellee’s original complaint. Regardless, all
of the parties subsequently filed answers to the amended complaint and none of the parties
objected to the filing of the amended complaint. Likewise, neither Lakeside nor Dr. Faleye 3
specifically raised the Appellee’s failure to strictly comply with Tennessee Code Annotated
Section 29-26-122(d)(4) in their answers. Dr. Harris, however, stated in his answer to the
amended complaint that he moved to dismiss the Appellee’s complaint “on the ground that
[Appellee’s] certificate of good faith fails to meet the statutory requirements of T.C.A. § 29-
26-122.” Despite this fact, the parties moved on to conduct discovery, which was
considerable,4 and the parties set the case for trial.
3
Dr. Faleye did raise failure to state a claim upon which relief could be granted, but did not
specifically make reference to the good faith certificate requirement.
4
As a point of practice, we note that the appellate record in this case consists of seventeen
volumes of technical record. In our review of every page of this prolific record, we found that the
majority of the pages therein were part and parcel of the protracted discovery that took place in this case.
It is, of course, incumbent upon the Appellants to prepare an adequate record for our review. Tenn.
R. App. P. 24(b). However, in preparing the record, the Appellants should not lose sight of the
other mandates contained in Tennessee Rule of Appellate Procedure 24. We specifically refer the
parties to Tennessee Rule of Appellate Procedure 24(a), concerning the content of the appellate record.
This Rule provides, in relevant part that:
The following papers filed in the trial court are excluded from the record:
(1) subpoenas or summonses for any witness or for any defendant when
there is an appearance for such defendant; (2) all papers relating to
discovery, including depositions, interrogatories and answers thereto,
reports of physical or mental examinations, requests to admit, and all
notices, motions or orders relating thereto; (3) any list from which jurors
are selected; and (4) trial briefs; and (5) minutes of opening and closing of
court. Any paper relating to discovery and offered in evidence for any
purpose shall be clearly identified and treated as an exhibit. No paper need
be included in the record more than once.
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The case was delayed numerous times and was heard by several different judges.5
Ultimately, the case was assigned to Judge John McCarroll. On January 4, 2013,
approximately twenty-two months after Appellee filed her response to Dr. Faleye’s original
motion to dismiss, Dr. Faleye filed a reply to Appellee’s response to his motion. In his reply,
Dr. Faleye again argued that Appellee’s failure to disclose the number of prior violations by
the party executing the good faith certificate mandated that her complaint be dismissed with
prejudice. The other Appellants soon filed their own motions or joined in Dr. Faleye’s
motion. Appellee responded with motions to strike the Appellants’ motions to dismiss,
asserting that they were untimely or waived.
Ultimately, the issue was heard by the trial court on April 4, 2013. Orally, the trial
court ruled that Appellee failed to strictly comply with Tennessee Code Annotated Section
29-26-122. The trial court ruled that strict compliance was required to meet the statutory
requirements, but that noncompliance could be excused by extraordinary cause. The trial
court further ruled that the Appellee had not strictly complied with the statutory requirements
and that no extraordinary cause existed. The trial court specifically denied Appellee’s laches
defense. The trial court ordered that the parties draft an order dismissing Appellee’s
complaint for failure to comply with the good faith certificate requirement. No written order
was entered reflecting the trial court’s ruling. Instead, counsel for Dr. Faleye sent a proposed
order to counsel for the Appellee to approve.
However, on April 15, 2013, Appellee filed a Motion for Extension pursuant to
Tennessee Code Annotated Section 29-26-122(c), seeking to extend the time to file a
corrected certificate of good faith. The Appellee attached to her motion a certificate of good
faith, which was fully compliant with Tennessee Code Annotated Section 29-26-122, as well
as an affidavit from her counsel allegedly showing good cause for the extension. The trial
court entered an order requiring the parties to attend a hearing on April 19, 2013, “to resolve
any issue in connection with the orders which need to be entered.” Appellee filed a
Supplement to her Motion for Extension on April 18, 2013. On the day of the hearing,
Appellee filed an affidavit of counsel in support of her laches defense. At the hearing on
April 19, 2013, the trial court informed counsel that he would consider the motion for
Tenn. R. App. P. 24(a) (emphasis added). Had the Appellants adhered to this rule regarding the
exclusion of discovery, our record would certainly have been more manageable and the interest of
judicial economy would have been better served. Because we very often see extraneous filings in the
records, we take t his opportunity to remind our future appellants that they should endeavor to
adhere to the rules when submitting records to this Court.
5
At different times, Judge Kay Robilio, Judge Rynette Hurd, Judge Karen Williams, and finally
Judge John McCarroll heard this case.
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extension. Counsel for the Appellants allege that this came as a surprise to them, as they were
only prepared to argue concerning the entry of the order dismissing Appellee’s complaint.
There appears to have been some confusion as to whether the Appellants were to file a
response to Appellee’s Motion for Extension. Regardless, on April 24, 2013, the Appellants
did file a sixty-four page response to Appellee’s Motion for an Extension, as well as another
proposed order granting the motions to dismiss. The trial court directed counsel for both
parties to submit proposed orders.
On May 3, 2013, the trial court entered an order denying the Appellants’ motions to
dismiss the complaint. The trial court reasoned: “Since [Appellee’s] counsel did not have any
prior violations to disclose, [Appellee’s] counsel’s failure to disclose no violation
substantially complies with Tenn. Code Ann. § 29-26-122.” In the alternative, the trial court
considered Appellee’s motion for an extension and granted the motion, reasoning that the
failure to disclose the number of past violations was a technical, rather than a material,
deviation from the language of the statute based on differing interpretations of the statute and
that, consequently, good cause existed to support the extension. The Court also stated that
the Appellants waited to raise their objections until after discovery. The trial court, thus,
denied the pending motions to dismiss and ruled that the case could proceed.
On May 10, 2013, the Appellants filed a motion in the trial court for an interlocutory
appeal. The trial court granted leave to file an interlocutory appeal on June 17, 2013.
Appellants filed their Application for Permission to appeal to this Court on June 27, 2013.
This Court granted the interlocutory appeal on August 12, 2013.
II. Issues Presented
Appellants raise five issues for this Court’s review, as taken from their brief:
1. Whether the trial court erred in denying Appellants’
Motions to Dismiss Appellee’s Complaint when
Appellee failed to file a Certificate of Good Faith with
her original Complaint that met the requirements of
Tennessee Code Annotated Section 29-26-122.
2. Whether the trial court erred in finding that the
mandatory requirements of Section 122, regarding the
filing of a Certificate of Good Faith with the complaint,
were satisfied by substantial, rather than strict,
compliance.
3. Whether the trial court erred in considering Appellee’s
Motion for Extension of Time to file a third Certificate
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of Good Faith on April 19, 2013, after it had already
granted Appellants’ Motions to Dismiss on April 4,
2013.6
4. Whether the trial court erred in considering Appellee’s
Motion for Extension of Time to file a third Certificate
of Good Faith even though it already held that Appellee’s
first Certificate of Good Faith substantially complied
with the requirements of Section 122.
5. Whether the trial court erred in finding good cause for
Appellee’s Motion for Extension of Time to file a third
Certificate of Good Faith where Appellee’s failure to file
a [] Certificate of Good Faith with the original complaint
was simply the result of attorney oversight and/or
misunderstanding of the law.
As we perceive it, there are three issues in this case:
1. Whether the Appellants’ motions to dismiss on the basis of noncompliance with
Tennessee Code Annotated Section 29-26-122 were timely or whether laches applies
to bar this motion?
2. Whether the trial court properly considered and granted the Appellee’s motion for an
extension to file a certificate of good faith pursuant to Tennessee Code Annotated
Section 29-26-122(c)?
3. Whether Tennessee Code Annotated Section 29-26-122(d)(4) regarding disclosure of
prior violations of the statutory good faith certificate requirement is subject to either
6
After a thorough review of Appellants’ brief, it does not appear that this issue is argued in the
body of the Appellants’ brief. “[W]hen a party raises an issue in its brief, but fails t o address it in the
argument section of the brief, we consider the issue to be waived.” Childress v. Union Realty Co., 97
S.W.3d 573, 578 (Tenn. Ct. App. 2002). The Appellants do argue this issue in their reply brief; however,
a reply brief is a response to the arguments of the appellee, not a vehicle for raising new arguments. See
Tenn. R. App. P. 27(c). Further, the Appellants cite no legal authority to support their argument on this
issue in their reply brief. See Bean v. Bean, 40 S.W.3d 52, 55–56 (Tenn. Ct. App. 2000). Accordingly,
this issue is waived. Further, from our review of the record, the trial court made only an oral ruling
dismissing the Appellee’s complaint based on her failure to strictly comply with Tennessee Code
Annotated Section 29-26-121. No written final order had yet been entered when the trial court decided to
entertain Appellee’s motion for an extension. It is well-settled that until a final order is entered “the
issues . . . remain[s] in the bosom of the trial court, and any rulings . . . may be modified at any time
before a final order is entered.” Wall v. Wall, No. W2010-01069-COA-R3-CV, 2011 WL 2732269, at
*23 (Tenn. Ct. App. July 14, 2011) (citing Greer v. Greer, No. W2009-01587-COA-R3-CV, 2010 WL
3852321, at *6 n.7 (Tenn. Ct. App. Sept. 30, 2010)). The trial court, therefore, was within its discretion
to reconsider its previous ruling.
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strict or substantial compliance?
III. Standard of Review
This interlocutory appeal involves the trial court’s decision to deny the Appellants’
motions to dismiss. In considering an appeal from a trial court’s denial of a motion to
dismiss, we take all allegations of fact in the compla0int as true, and review the trial court’s
legal conclusions de novo with no presumption of correctness. Tenn R. App. P. 13(d);
Mid-South Industries, Inc. v. Martin Mach. & Tool, Inc., 342 S.W.3d 19, (Tenn. Ct. App.
2010) (citing Owens v. Truckstops of America, 915 S.W.2d 420, 424 (Tenn. 1996)). We
examine the legal sufficiency of the complaint and do not consider the strength of the
plaintiff’s evidence; thus, all factual allegations in the complaint are accepted as true and
construed in flavor of the plaintiff. Lind v. Beaman Dodge, Inc., 356 S.W.3d 889, 894
(Tenn. 2011).
The issues in this case involve the construction and interpretation of a statute,
Tennessee Code Annotated Section 29-26-122. As recently explained by the Tennessee
Supreme Court:
Our review requires us to determine the meaning of
Tennessee Code Annotated section[] [29-26-]122. The leading
rule governing our construction of any statute is to ascertain and
give effect to the legislature’s intent. Walker v. Sunrise
Pontiac-GMC Truck, Inc., 249 S.W.3d 301, 309 (Tenn. 2008).
To that end, we start with an examination of the statute’s
language, Curtis v. G.E. Capital Modular Space, 155 S.W.3d
877, 881 (Tenn. 2005), presuming that the legislature intended
that each word be given full effect. Lanier v. Rains, 229 S.W.3d
656, 661 (Tenn. 2007). When the import of a statute is
unambiguous, we discern legislative intent “from the natural and
ordinary meaning of the statutory language within the context of
the entire statute without any forced or subtle construction that
would extend or limit the statute’s meaning.” State v.
Flemming, 19 S.W.3d 195, 197 (Tenn. 2000); see also In re
Adoption of A.M.H., 215 S.W.3d 793, 808 (Tenn. 2007)
(“Where the statutory language is not ambiguous . . . the plain
and ordinary meaning of the statute must be given effect.”)
(citing Calaway ex rel. Calaway v. Schucker, 193 S.W.3d 509,
516 (Tenn.2005)). The construction of a statute is also a
question of law which we review de novo without any
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presumption of correctness. Lind, 356 S.W.3d at 895.
Myers v. AMISUB (SFH), Inc., 382 S.W.3d 300, 308 (Tenn. 2012).
IV. Analysis
Appellee’s complaint in this case is governed by the Tennessee Medical Malpractice
Act (“TMMA”).7 Specifically at issue is the TMMA’s requirement that medical malpractice
plaintiffs file a certificate of good faith in support of their medical malpractice claims.
According to Tennessee Code Annotated Section 29-26-122:
(a) In any health care liability 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; . . . .
* * *
7
The General Assembly saw fit to amend the TMMA to replace the term “medical malpractice”
with “health care liability” effective April 23, 2012. See Act of April 23, 2012, ch. 798, 2012 Tenn. Pub.
Acts. The complaint at issue here was filed December 10, 2010. In this opinion, we will refer to the
version of the statute in effect on the date the complaint was filed.
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(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. . . . 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.
(d)(1) Subject only to subdivision (d)(2), the written statement
of an expert relied upon in executing the certificate of good faith
is not discoverable in the course of litigation.
* * *
(4) A certificate of good faith shall disclose the number of prior
violations of this section by the executing party.
(5) The administrative office of the courts shall develop a
certificate of good faith form to effectuate the purposes of this
section.
It is undisputed that when the Appellee originally filed her complaint in this case,
Appellee complied with all particulars of Tennessee Code Annotated Section 29-26-122,
save one: the requirement that the certificate of good faith disclose the number of violations
of the certificate of good faith by the executing party. There is also no dispute that the
Appellee properly complied with the pre-suit notice requirements contained in Tennessee
Code Annotated Section 29-26-121. Thus, the only provision at issue in this case is the
Tennessee Code Annotated Section 29-26-122 requirement that the certificate of good faith
“disclose the number of prior violations of this section by the executing party.” Tenn. Code
Ann. § 29-26-122(d)(4).
The parties’ first issue concerns the timing of the Appellants’ motions to dismiss the
complaint based on the alleged violation of the good faith certificate statute. Appellee argues
that the Appellants waived this argument by their failure to timely raise the issue,8 or in the
8
In Myers v. AMISUB (SFH), Inc., 382 S.W.3d 300 (Tenn. 2012), the Tennessee Supreme
Court held that the “proper way for a defendant to challenge a complaint’s compliance with . . .
Tennessee Code Annotated Section 29-26-122 is to file a Tennessee Rule of Civil Procedure 12.02
motion to dismiss.” Id. at 307. The Eastern Section of this Court recently held that a Rule 12.02 motion
to dismiss on the basis of failure to comply with the TMMA is not waived by failure to assert the defense
pre-answer, as a defendant may present this defense “even as late as ‘at trial on the merits.’”
(continued....)
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alternative, that the Appellants’ statement that it would not pursue its original motion to
dismiss after an amended complaint was filed operates as a bar to the Appellants raising the
issue.
The parties’ next issue concerns what standard of compliance is required to satisfy
Tennessee Code Annotated Section 29-26-122. The Appellants argue that Appellee was
required to strictly comply with the content requirements of Tennessee Code Annotated
Section 29-26-122, citing the Tennessee Supreme Court’s decision in Myers v. AMISUB
(SFH), Inc., 382 S.W.3d 300 (Tenn. 2012). Indeed, in Myers, the Tennessee Supreme Court
held that because the filing of a good faith certificate is mandatory, the requirement is “not
subject to satisfaction by substantial compliance.” Id. at 310. Instead, the Court held that
strict compliance with the requirements of the statute was required. Id. at 310–11. Because
the Appellee did not strictly comply with Tennessee Code Annotated Section 29-26-
122(d)(4), the Appellants argue that the statute mandates that the complaint be “dismiss[ed]
with prejudice.” Tenn. Code Ann. § 29-26-122(c).
The Appellants cite two recent cases in which this Court has dismissed, with
prejudice, a medical malpractice complaint when the plaintiff failed to disclose the number
of prior violations of Tennessee Code Annotated Section 29-26-122 in his or her good faith
certificate. In the first case, Vaughn v. Mountain States Health Alliance, No. E2012-01042-
COA-R3-CV, 2013 WL 817032 (Tenn. Ct. App. March 5, 2013), perm. app. pending, the
Court of Appeals ruled that a plaintiff must strictly comply with the requirement that he or
she “disclose the number of prior violations of [the good faith certificate requirement] by the
executing party,” even though there were no prior violations to disclose. The Court
concluded that this deficiency, along with the plaintiff’s failure to comply with the notice
provisions of Tennessee Code Annotated Section 29-26-121, absent any showing of
extraordinary circumstances, was fatal to the plaintiff’s claim. In a similar case, Caldwell v.
Vanderbilt University, No. M2012-00328-COA-R3-CV, 2013 WL 655239 (Tenn. Ct. App.
June 13, 2013) perm. app. denied (June 13, 2013), the Court of Appeals likewise dismissed
the plaintiff’s complaint for failure to file a fully compliant certificate of good faith. Id. at
*7. The plaintiff’s proffered certificate of good faith failed to strictly comply with the statute
in two respects: (1) the certificate failed to confirm that the plaintiff consulted with one or
more experts who provided a “signed written statement;” and (2) the purported certificate did
(....continued)
Blankenship v. Anesthesiology Consultants Exch., P.C., No. E2013-01674-COA-R3-CV, 2014 Tenn.
App. LEXIS 129, at *8 (Tenn. Ct. App. Feb. 26, 2014) (citing Tenn. R. Civ. P. 12.08) (noting that “the
defense of failure to state a claim upon which relief can be granted . . . may also be made by a later
pleading, if one is permitted, or by motion for judgment on the pleadings or at the trial on the merits”)).
Thus, based on the holding in Blankenship, it does not appear that the Appellants waived their right to
raise this defense.
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not disclose the number of prior violations of Tennessee Code Annotated Section 29-26-122.
Caldwell, 2013 WL 655239 at *6. Thus, two cases have held that a plaintiff does not comply
with Tennessee Code Annotated Section 29-26-122 when he or she fails to disclose the
number of prior violations of the good faith certificate requirement, and that this non-
compliance may be, along with other statutory violations, fatal to the plaintiff’s complaint.
Relying upon the Tennessee Supreme Court’s recent decision in Stevens v. Hickman
Community Health Care Services, Inc., 418 S.W.3d 547 (Tenn. 2013), the Appellee argues
that the holding in Myers regarding strict compliance with the statute applies only to the
filing of the certificate of good faith, rather than to its content. The Stevens Court considered
the companion to the good faith certificate requirement, the pre-suit notice requirement,
Tennessee Code Annotated Section 29-26-121, which is not at issue in this case. In Stevens,
the plaintiff timely filed pre-suit notice, but failed to include “[a] HIPAA compliant medical
authorization permitting the provider receiving the notice to obtain complete medical records
from each other provider being sent a notice” as required by Tennessee Code Annotated
Section 29-26-121(a)(2)(E). The trial court held that strict compliance with Tennessee Code
Annotated Section 29-26-121(a)(2)(E) was required, but excused compliance on the basis of
extraordinary cause. The Tennessee Supreme Court reversed the trial court and held that a
plaintiff is merely required to substantially comply with the content requirements of
Tennessee Code Annotated Section 29-26-121(a)(2)(E), which requirement “serves an
investigatory function, equipping defendants with the actual means to evaluate the
substantive merits of a plaintiff’s claim by enabling early discovery of potential
co-defendants and early access to a plaintiff’s medical records.” The Court held that the
purpose of Tennessee Code Annotated Section 29-26-121(a)(2)(E) was to facilitate
investigation, rather than provide notice. As such, the Court concluded that “[a] plaintiff’s
less-than-perfect compliance” with Tennessee Code Annotated Section 29-26-121(a)(2)(E)
was a “[n]on-substantive error[] and omission[] [that would] not always prejudice
defendants.” Accordingly, the Court held that only substantial compliance was required to
satisfy the requirements of Tennessee Code Annotated Section 29-26-121(a)(2)(E).
From our research, other recent Opinions have inferred from the Stevens Opinion that,
while the filing requirements of Tennessee Code Annotated Section 29-26-121 are subject
to strict compliance, the content requirements are subject to the less stringent substantial
compliance standard. See Chambers ex rel. Chambers v. Bradley Co., No. E2013-01064-
COA-R10-CV, 2014 WL 1266101, at *5–6 (Tenn. Ct. App. March 28, 2014) (applying the
“rationale and analysis” from Stevens to another provision of Tennessee Code Annotated
Section 29-26-121 to hold that only substantial compliance was required to satisfy the
content requirements of the provision at issue); Potter v. Perrigan, No. E2013-01442-COA-
R3-CV, 2014 WL 1260609, at *4 (Tenn. Ct. App. March 27, 2014) (describing the Stevens
Opinion as “requiring substantial compliance with the content requirements of the notice
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provisions”); see also Myers, 382 S.W.3d at 310 (specifically declining to opine as to
whether “the content of the notice and the certificate of good faith may be satisfied by
substantial compliance”); Caldwell, 2013 WL 655239 at *6, n.8 (“We note that our Supreme
Court has not opined as to whether the content requirements of Tenn. Code Ann. § 29-26-
122 may be satisfied by substantial compliance.”) (emphasis added); Hinkle v. Kindred
Hospital, No. M2010-02499-COA-R3-CV, 2012 WL 3799215 at *6 (Tenn. Ct. App. Aug.
31, 2012) (“We cannot conclude that the legislature intended that each and every technical,
but not material, deviation from the language of the statute could only be excused or
corrected by a showing of extraordinary cause.”). While these Opinions deal exclusively with
Tennessee Code Annotated Section 29-26-121, the pre-suit notice requirement, the Appellee
argues that the substantial compliance standard should also apply to the content requirements
of Tennessee Code Annotated Section 29-26-122. The Appellee asserts that, under a
substantial compliance standard, she has substantially complied with the content
requirements of Tennessee Code Annotated Section 29-26-122.
In the alternative, Appellee argues that Tennessee Code Annotated Section 29-26-
122(c) gives the trial court discretion to extend the time for filing a compliant certificate of
good faith based upon “good cause shown.” The Appellee asserts that the trial court did not
abuse its discretion by extending the time for filing a compliant certificate of good faith and
that, consequently, a certificate fully compliant with Tennessee Code Annotated Section 29-
26-122 was timely filed. Because we conclude that the trial court had authority to extend the
time for filing a certificate of good faith and did not abuse its discretion in finding “good
cause shown,” we decline to consider the other issues raised in this case. Regardless of
whether the Appellants’ motions were timely filed, or whether strict or substantial
compliance was required, the Appellee timely filed a motion for extension, which was
properly granted by the trial court, as discussed in detail below. Accordingly, the trial court
did not err in allowing the case to proceed.
Motion for Extension
The Appellee’s motion for extension is governed by both the Tennessee Rules of Civil
Procedure and statute. Specifically, Tennessee Code Annotated Section 29-26-122(c)
provides:
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. . . . 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
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failed to timely produce medical records upon timely request, or
for other good cause shown.
Thus, based on the plain language of Tennessee Code Annotated Section 29-26-122(c), the
plaintiff’s failure to timely file a “certificate of good faith in compliance with this section,”
is not always fatal to the plaintiff’s claim. Instead, upon a showing of good cause, the
plaintiff may obtain an extension within which to file a certificate of good faith. As explained
by this Court: “In short, the statute allows for the late filing of a certificate; dismissal of the
action with prejudice based on the fact that the certificate was not filed with the complaint
is not automatic.” Robles v. Vanderbilt University Medical Center, No. M2010-01771-COA-
R3-CV, 2011 WL 1532069, at *3 (Tenn. Ct. App. April 19, 2011) perm. app. denied (Aug.
25, 2011).
Tennessee Code Annotated Section 29-26-122(c) contains no express time limit for
filing a motion to extend the time for filing a certificate of good faith. The timing is,
therefore, governed by Rule 6.02 of the Tennessee Rules of Civil Procedure:
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, (1) with or without motion or
notice order the period enlarged if request therefor is made
before the expiration of the period originally prescribed or as
extended by a previous order, or (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, but
it may not extend the time for taking any action under Rules
50.02, 59.01, 59.03 or 59.04, except to the extent and under the
conditions stated in those rules.
Tenn. R. Civ. P. 6.02 (emphasis added). Accordingly, a trial court may grant an extension for
filing a certificate of good faith, even after the expiration of the time period in which the act
was to be completed.
The Appellants argue,9 however, that this statute is intended to allow an extension to
9
The Appellants make an additional argument regarding mootness in their brief to this Court.
Specifically, Appellants argue that the trial court’s consideration of the Appellee’s motion to extend was
moot because the trial court found that substantial compliance with Tennessee Code Annotated Section
(continued....)
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file an original certificate of good faith, and not to allow a plaintiff to file a compliant good
faith certificate after having previously filed a non-compliant certificate. The Appellants cite
the statute’s plain language, which allows an extension “within which to file a certificate of
good faith.” According to the Appellants, the statute’s plain language means that a plaintiff
may only seek an extension to file an initial certificate of good faith, and not to file a
corrected certificate in compliance with the statute. Further, the Appellants emphasize that
“the timing of the statutes is mandatory,” citing Myers:
Legislative discussion of the statutes prior to their enactment
also indicates that the legislature viewed the statutes as
mandatory, demanding strict compliance. For example, in
committee discussion of the periods of time allowed for
compliance with the statutes’ filing requirements, Senator Jim
Kyle observed “the whole bill is date driven . . . we don’t need
the judiciary to interpret our desire there as to what the date is.”
Senator Mark Norris confirmed that “the dates mean what they
say. Trigger dates are meant to be deadlines.”
Myers, 382 S.W.3d at 309, n.8 (emphasis added) (internal citations omitted). The Appellants
thus argue that deficiencies in the certificate of good faith may not be corrected by
amendment, citing Vaughn v. Mountain States Health Alliance, No. E2012-01042-COA-
R3-CV, 2013 WL 817032 (Tenn. Ct. App. March 5, 2013).
We decline to accept Appellant’s interpretation of this statute. First, while we agree
with the Appellants that the Myers Court correctly held that the timing set out in the statute
is mandatory, we note that the Myers Court was not called upon to consider the extension
provision in Tennessee Code Annotated Section 29-26-122(c). Indeed, the Myers Court
expressly noted that the plaintiff in Myers failed to file a motion seeking an extension. See
(...continued)
29-26-122 was sufficient. As we perceive it, however, the trial court made alternative rulings with respect
to the issues. Appellants cite no law in which this practice is prohibited or even frowned-upon. It is well-
settled that “the failure to cite relevant authority in the argument section of the brief as required by Rule
27(a)(7) [of the Tennessee Rules of Appellate Procedure] constitutes a waiver of the issue.” Bean v.
Bean, 40 S.W.3d 52, 55–56 (Tenn. Ct. App. 2000). From our independent research, we have found
several cases that have considered alternative rulings by the trial court, or even encouraged such rulings.
See, e.g., Gerdau Ameristeel, Inc. v. Ratliff, 368 S.W.3d 503, 508 (Tenn. 2012) (directing trial courts in
workers compensation cases to make alternative rulings in order to prevent delay); BancorpSouth Bank
v. 51 Concrete, LLC, No. W2011-00505-COA-R3-CV, 2012 WL 1269180, at *6 (Tenn. Ct. App. April
16, 2012) (reversing the trial court’s ruling that it did not have subject matter jurisdiction, but affirming
as to the trial court’s alternative rulings on the merits of the case). Accordingly, this issue is without
merit.
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Myers, 382 S.W.3d at 311–12 (“Although the statutory scheme provides the trial court with
discretion to, “upon motion, grant an extension within which to file a certificate of good faith
. . . , [plaintiff] did not file a motion seeking such relief. Consequently, his complaint must
be dismissed with prejudice.”). Based on the plain language of the statute, however, the
General Assembly created an express avenue of escape from the mandatory deadlines with
regard to the filing of the certificate of good faith. A statute “should be read naturally and
reasonably, with the presumption that the legislature says what it means and means what it
says.” In re Samaria S., 347 S.W.3d 188, 203 (Tenn. Ct. App. 2011). Accordingly, the
General Assembly clearly contemplated that the time for filing a certificate of good faith may
be extended, in certain limited circumstances.
In addition, we disagree with the Appellants’ characterization of this Court’s decision
in Vaughn v. Mountain States. As previously discussed, the Vaughn Court discussed a
plaintiff’s failure with respect to both the notice requirements of Tennessee Code Annotated
Section 29-26-121, and the good faith certificate requirement of Tennessee Code Annotated
Section 29-26-122. In considering the plaintiff’s failure to properly comply with the notice
provisions, the Court stated:
[Plaintiff] contends that his amended complaint served to cure
many of the deficiencies of the original complaint. The statutes
at issue, however, do not authorize a claimant to cure
deficiencies by filing an amended complaint, and as “[t]he
essence of Tennessee Code Annotated section 29-26-121 is that
a defendant be given notice of a medical malpractice claim
before suit is filed,” Myers, 382 S.W.3d at 309.
Vaughn, 2013 WL 817032, at *6. Thus, the Vaughn Court’s holding that a plaintiff may not
cure deficiencies by amendment related only to the plaintiff’s failure to comply with
Tennessee Code Annotated Section 29-26-121, rather than to the provision at issue in this
case. In addition, in Vaughn, nothing indicated that the plaintiff ever filed a motion seeking
an extension in which to file a compliant certificate of good faith, unlike in this case.
Accordingly, the Vaughn holding that amendments cannot cure deficiencies is simply
inapposite to the case-at-bar.
Further, we conclude that Appellants’ interpretation of the statute yields an inequitable
and absurd result. In construing statutes, courts are admonished not to adopt an interpretation
that “would yield an absurd result.” Steppach v. Thomas, 346 S.W.3d 488, 506 (Tenn. Ct.
App. 2011) (quoting State v. Sims, 45 S.W.3d 1, 11 (Tenn. 2001)). If we were to accept
Appellants’ argument, a plaintiff could be granted an extension, for good cause, after failing
to file a certificate of good faith in its entirety; however, a plaintiff who attempted to comply
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with the statute, but did not strictly comply with all content requirements in the statute would
not be entitled to the same extension, regardless of whether he or she could show good cause
for the failure. This result is not logical.
In a somewhat analogous situation, the Tennessee Supreme Court recently considered
whether a transitional10 plaintiff who refiled his or her action after a non-suit was entitled to
a 120-day extension of the saving statute. See Rajvongs v. Wright, --- S.W.3d ----, 2013 WL
6504425 (Tenn. 2013). The issue turned on whether a saving statute was properly considered
an “applicable statute[] of limitations or repose” pursuant to Tennessee Code Annotated
Section 29-26-122, which time period was subject to an extension based on compliance with
the notice provisions. Id. at *4 The Supreme Court noted that it had “long recognized that
the saving statute is not a statute of limitations or a statute of repose and that it operates
independently.” Id. at *5 (citing Pratcher v. Methodist Healthcare Memphis Hosps., 407
S.W.3d 727, 737 (Tenn. 2013)). Regardless, the Court concluded that a transitional plaintiff
was entitled to an extension of the saving statue because to hold otherwise was unreasonable
and created an inequitable result: “We are unable to conclude that the General Assembly
would require transitional plaintiffs to provide pre-suit notice before refiling under the saving
statute and yet deprive such plaintiffs of the 120–day extension.” Rajvongs, 2013 WL
6504425, at *5.
Similarly, in this case, we cannot conclude that the General Assembly intended that
the extension pursuant to Tennessee Code Annotated Section 29-26-122(c) is available to
those who have completely failed to file a certificate of good faith, while refusing to allow
such extension to those who have attempted to comply with the statute, but, for some reason,
have failed. In fact, in a case cited by the Appellants to support their contention, Caldwell
v. Vanderbilt University, this Court implied that an extension could be available in a
situation similar to the one in this case. Caldwell, 2013 WL 655239, at *6. In Caldwell, the
plaintiff had initially filed a certificate of good faith with her complaint, but failed to include
the necessary content in a number of respects, as discussed supra. The Court dismissed the
complaint based on these deficiencies, noting that while the trial court had discretion to
extend the time for filing a certificate of good faith, the plaintiff had not sought that relief
in the trial court. Thus, there was no indication from the Court that the plaintiff was not
entitled to seek an extension simply because she had already filed a non-compliant good faith
certificate simultaneously with the filing of her complaint.
Indeed, another provision of Tennessee Code Annotated Section 29-26-122 supports
10
A transitional plaintiff is a plaintiff who filed a medical malpractice action prior to the
effective date of the TMMA, non-suited his or her case, and then re-filed the action after the effective
date of the statutes.
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this conclusion. Tennessee Code Annotated Section 29-26-122(a) provides that:
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.
Based on the above language, it appears that when a plaintiff has failed to file any certificate
of good faith with the complaint, the only avenues of relief from the mandate of dismissal are
based on “the failure of the provider to timely provide copies of the claimant’s records” or
extraordinary cause. However, when the issue is the filing of a certificate “in compliance with
this section,” the plaintiff has an additional avenue of relief: showing good cause.11 Thus, a
plaintiff who has filed a certificate of good faith that is not fully compliant with Tennessee
Code Annotated Section 29-26-122 may seek an extension to file a certificate fully compliant
with the statutory requirements. That is exactly what Appellee sought to do in this case.
Good Cause
Having concluded that Appellee was entitled to seek an extension of the time allowed
for filing her certificate of good faith, we must next determine whether the trial court abused
its discretion in granting Appellee’s motion. The parties in this case agree that the appropriate
standard is the “good cause” standard found in Tennessee Code Annotated Section 29-26-
122(c), rather than the “excusable neglect” standard found in Rule 6.02 of the Tennessee
Rules of Civil Procedure.12 Thus, we must consider whether the trial court abused its
11
Our analysis herein should not be interpreted as a holding that a plaintiff who has failed to file
any certificate of good faith with his or her complaint is not entitled to seek an enlargement of time to file
a certificate based upon a showing of good cause. That issue is not before this Court and we need not
decide it. Regardless, one Court has applied the good cause standard to a motion for an extension with
regard to a plaintiff who filed no certificate of good faith within the prescribed time period. See Brandon
v. Williamson Medical Center, 343 S.W.3d 784 (Tenn. Ct. App. 2010) (discussed in detail, infra).
12
We note that the only other case to consider this issue, Brandon v. Williamson Medical
Center, 343 S.W.3d 784 (Tenn. Ct. App. 2010), considered both the “good cause” standard and
the “excusable neglect” standard, at the request of the plaintiff. The parties in this case, however, agree
that the proper standard is good cause. Still, we recognize that our prior decisions have concluded that
to receive an enlargement of time under Rule 6.02 “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.” Id. at 791 (emphasis added) (citing Kenyon v. Handal, 122 S.W.3d 743,
756 (Tenn. Ct. App. 2003). This issue does not appear to have been argued by the Appellants in
(continued.....)
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discretion in finding “good cause” in this case.
In the only case considering the extension for “good cause shown” contained in
Tennessee Code Annotated Section 29-26-122(c), this Court remarked that “[u]nfortunately,
the [TMMA] 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 requirement.” See
Brandon v. Williamson Medical Center, 343 S.W.3d 784, 789 (Tenn. Ct. App. 2010). Words
in statutes must be given “their ordinary and natural meaning,” and we may refer to dictionary
definitions, where appropriate. State v. Williams, 690 S.W.2d 517, 529 (Tenn.1985). The
term “good cause” is defined as:
Substantial reason, one that affords a legal excuse. Legally
sufficient ground or reason. Phrase “good cause” depends on
circumstances of individual case, and finding of its existence lies
largely in discretion of officer or court to which discretion is
committed. . . . “Good cause” is a relative and highly abstract
term, and its meaning must be determined not by verbal context
of statute in which term is employed but also by context of action
and procedures involved in [the] type of case presented.
Black’s Law Dictionary 623 (5th ed. 1979);
In Tennessee, “good cause” has more often been defined by what it is not, rather than
what it is. For example, this Court has consistently held that a mere mistake in calendering is
insufficient to constitute good cause. See Barnes v. Hamm, No. W2011-02288-COA-R3-CV,
(....continued)
their brief to this Court. However, in an abundance of caution, we have also considered whether the
Appellee’s delay in filing her motion for an extension prejudiced the Appellants. Here, the trial court
found that the Appellee’s delay in seeking a motion for extension was the result of the Appellants’
delay in prosecuting their motions to dismiss. Indeed, the record shows that the Appellants informed
the Appellee that after the filing of her amended complaint, the Appellants would “strike our
motion to dismiss” and that they “d[id] not plan to reset the Motion for hearing.” Further, the
record shows that in allowing the case to proceed prior to prosecuting their motions to dismiss, the
Appellants required the Appellee to engage in voluminous and protracted discovery. While we
have not considered whether this inaction rises to the level of either waiver or laches, these
issues are relevant to the issue of whether the Appellants suffered prejudice. Further, nothing in the
Appellants’ brief asserts that the Appellants were prejudiced by the delay. Under these circumstances,
and considering that this issue was not properly raised or argued by the Appellants, we conclude
that the Appellants were not prejudiced by the Appellee’s delay in filing her motion for an
extension.
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2013 WL 4680398, at *3 (Tenn. Ct. App. Aug. 28, 2013) (construing “good cause” for
purposes of Rule 21(b) of the Tennessee Rules of Appellate Procedure) (citing G.F. Plunk
Const. Co., Inc. v. Barrett Properties, Inc., 640 S.W.2d 215, 218 (Tenn.1982)). Likewise,
“secretarial shortcomings” have also been determined to be insufficient to constitute good
cause. See G.F. Plunk Const., 640 S.W.2d at 217. The Tennessee Supreme Court has further
noted “that a showing of good cause requires more than a mere good faith belief that a routine
office chore has been timely performed.” Id. at 218. Other courts have concluded that attorney
oversight is an insufficient excuse to support a finding of good cause. See H.D. Edgemon
Contracting Co. v. King, 803 S.W.2d 220, 223–23 (Tenn. 1991) (citing G.F. Plunk Const.,
640 S.W.2d at 217). In the context of service of process, federal courts have held that good
cause is not shown when: (1) the delay in serving process was intentional; (2) the plaintiff
made no effort or only “half-hearted” effort to effectuate service; or (3) the plaintiff made no
attempt to correct service after the defendant raised insufficient service in his or her answer.
See 62B Am. Jur. 2d Process § 116 (citing cases and noting other, inapplicable, circumstances
in which federal courts have found no “good cause shown”). However, courts construing the
TMMA’s “extraordinary cause” requirement have noted that good cause is a less exacting
standard than extraordinary cause. See Hawkins v. Martin, No. W2011-02318-COA-R3-CV,
2012 WL 3007680, at *6 (Tenn. Ct. App. July 24, 2012) (noting that the plaintiff had not
shown good cause, “much less, unique, extraordinary circumstances, that would excuse
compliance”); see also Myers, 382 S.W.3d at 310–11 (“‘Extraordinary’ is commonly defined
as ‘going far beyond the ordinary degree, measure, limit, etc.; very unusual; exceptional;
remarkable.’”) (quoting Webster’s New World Dictionary of the American Language, 516
(1966)).
Our research has revealed only one case that has considered the good cause provision
in Tennessee Code Annotated Section 29-26-122(c), Brandon v. Williamson Medical
Center, 343 S.W.3d 784 (Tenn. Ct. App. 2010). In Brandon, the pro se plaintiff filed a
complaint for medical malpractice. Id. at 786. The defendants filed a motion to dismiss the
complaint based on the plaintiff’s failure to file a certificate of good faith within the required
time period applicable to medical malpractice complaints at that time.13 Id. at 787. Shortly
thereafter, the plaintiff retained counsel. Her counsel then filed a Rule 6.02 motion to enlarge
the time for filing a certificate of good faith, as allowed by Tennessee Code Annotated
Section 29-26-122(c). In support of her motion, plaintiff’s counsel offered the following
13
A 2009 amendment to the TMMA 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 the plaintiff in Brandon provided written
notice prior to July 1, 2009, she was allowed ninety days within which to file her certificate of good faith.
The defendants filed their motions to dismiss after this ninety-day time period had expired. In this case,
Appellee was required to file her certificate of good faith simultaneously with her complaint.
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explanation for plaintiff’s failure to file a certificate of good faith:
In this case the [p]laintiff was attempting to represent herself and
simply did not have the knowledge or ability to do so. . . . [H]ere
[plaintiff] 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.
Brandon, 343 S.W.3d at 787. The trial court first noted that the plaintiff failed to file an
affidavit “establishing the facts relied upon to show ‘good cause’ for an enlargement of time.”
However, the trial court further found that even considering the facts as stated in her motion
as true, good cause had not been shown. Consequently, the trial court granted the defendants’
motion to dismiss. Id.
In determining that the trial court did not abuse its discretion in denying the plaintiff’s
motion, the Court of Appeals considered the standard applicable to an enlargement of time
pursuant to both Rule 6.02 and Tennessee Code Annotated Section 29-26-122. Specifically,
the plaintiff argued that the trial court erred in utilizing the “good cause” standard set forth
in Tennessee Code Annotated Section 29-26-122, rather than the “excusable neglect” standard
set forth in Rule 6.02. The Court of Appeals, however, found it “unnecessary to address the
interplay between the Tennessee Rules of Civil Procedure and Tennessee Code Annotated
section 29-26-122, as [the p]laintiff has failed to demonstrate either ‘good cause’ or
‘excusable neglect’ in this case.” Brandon, 343 S.W.3d at 789. In explaining its decision that
the plaintiff’s proffered justification for her failure to file a certificate of good faith did not
constitute good cause, the Court indicated that it simply did not believe the plaintiff’s claims
of ignorance:
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 [p]laintiff’s pro se status irrelevant and her
claims of ignorance suspect.
* * *
[D]espite her claim of ignorance of the certificate of good faith
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requirement, [p]laintiff, 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.
Id. at 789–90. The Court further noted that the plaintiff’s affidavit “clearly shows” that she
consulted an attorney prior to filing her complaint and that the attorneys had “received written
confirmation from an expert willing to provide the opinion necessary to file a certificate of
good faith.” Id. at 790. According to the Court, however, “[p]laintiff 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 [d]efendants’ motion to
dismiss.” Id. Thus, the Court of Appeals found no abuse of discretion in the trial court’s
refusal to grant an enlargement of time. Id.
The situation in Brandon is distinguishable from the present case for three reasons.
First, in Brandon, the trial court denied the motion for extension, finding no “good cause
shown.” See id. at 780–90. Here, the trial court granted the Appellee’s motion for extension
to file a fully compliant certificate of good faith. This distinction is important due to the
standard of review at issue. As explained by the Court of Appeals in Brandon, “[o]ur review
under either standard [i.e., the Rule 6.02 excusable neglect standard or the Tennessee Code
Annotated Section 29-26-122(c) good cause standard] is abuse of discretion.” Id. at 789. A
trial court abuses its discretion when it has applied an incorrect legal standard or has reached
a decision which is against logic or reasoning that caused an injustice to the party
complaining. Johnson v. Richardson, 337 S.W.3d 816, 819 (Tenn. Ct. App. 2010) (citing
Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001)). Under the abuse of discretion
standard, we look at the evidence in the light most favorable to the trial court’s decision.
Wright ex rel. Wright v. Wright, 337 S.W.3d 166, 176 (Tenn.2011).We will not overturn the
trial court’s decision merely because reasonable minds could reach a different conclusion.
Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001). “[W]e are not permitted to substitute
our judgment for that of the trial court.” Caldwell v. Hill, 250 S.W.3d 865, 869 (Tenn. Ct.
App. 2007). As explained by this Court in In re Estate of Greenamyre, 219 S.W.3d 877
(Tenn. Ct. App. 2005):
The “abuse of discretion” standard is a review-constraining
standard of review that calls for less intense appellate review and,
therefore, less likelihood that the trial court’s decision will be
reversed. Appellate courts do not have the latitude to substitute
their discretion for that of the trial court. Thus, a trial court’s
discretionary decision will be upheld as long as it is not clearly
-21-
unreasonable, and reasonable minds can disagree about its
correctness.
Id. at 885–86 (internal citations omitted). Thus, while the Brandon Court was tasked with
upholding the trial court’s denial of the motion for enlargement so long as that decision was
not unreasonable, this Court is required to view the trial court’s decision to grant the motion
for enlargement in the light most favorable to the trial court’s decision and uphold that
decision so long as it is not clearly unreasonable. The distinct procedural posture of the two
cases is, therefore, highly relevant to the disposition of both appeals.
Next, the plaintiff in Brandon did not file any affidavit in support of her motion for
extension. In contrast, however, Appellee’s counsel filed an affidavit containing the facts
supporting her motion. According to Appellee’s counsel’s affidavit:
3. Contemporaneously with the filing of the Complaint, I
filed a Certificate of Good Faith that, based on a plain
reading of the statute, and consistent with the decision
of other Circuit Courts at the time, I in good faith,
believed complied with the requirements of Tennessee
Code Annotated Section 29-26-122 . . . .
4. Up until the hearing on [Appellants’] Motion to Dismiss
in this case, I had never been found in violation of
Tennessee Code Annotated Section 29-26-122.
5. I caused to be filed an Amended Complaint and a second
Certificate of Good Faith containing an affirmative
representation of no prior violations on July 6, 2011.
Specifically, I stated, “I have been found in violation of
T.C.A. § 29-26-122 zero times.”
6. The only decisions at my disposal early in this litigation
that interpreted Tennessee Code Annotated Section 29-26-
122(d)(4) all indicated that the lack of affirmatively
disclosing no prior violations did not merit dismissal of
the action. See Lonnie Ayers v. Dr. Reath, et. al., Knox
County, Tennessee, Docket No. 1-460-10; and Lynn v. Coyle, Kno[x] County, Tenn
7. I was not aware that any court had held that an affirmative
disclosure or no prior violations was required until the
decision in Vaughn v. Mountain States Health Alliance.
Vaughn v. Mountain States Health Alliance, No. E2012-
01042-COA-R3-CV, 2013 WL 817032, at *1 (Tenn. Ct.
App. March 5, 2013). The Vaughn case remains
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unreported as of the date of the signing of this Affidavit.
Accordingly, unlike the plaintiff in Brandon, the Appellee followed the appropriate procedure
in seeking an extension of the time in which to file a certificate of good faith in compliance
with Tennessee Code Annotated Section 29-26-122.
Further, the Court in Brandon did not appear to credit the plaintiff’s proffered
explanation for her failure to file her certificate of good faith, even calling her excuse
“suspect.” See Brandon, 343 S.W.3d at 789. Thus, the Court impliedly concluded that the
Brandon plaintiff’s purported “ignorance” of the law was feigned or unreasonable. The trial
court, unlike the Court in Brandon, appeared to credit the explanation offered by Appellee’s
affidavit. Indeed, the Appellants do not dispute the allegations contained in the above
affidavit. Instead, they argue that even taking the above allegations as true, they are not
sufficient to show good cause.
The Appellee’s proffered explanation for her failure to affirmatively state the number
of her prior violations of Tennessee Code Annotated Section 29-26-122 was, that the
requirement to affirmatively state “zero” was not settled law at the time of filing the
complaint, causing confusion to both the Appellee and Appellants. The trial court, in denying
the Appellants’ motions to dismiss, specifically mentioned that Appellee’s counsel had no
prior violations to disclose and that it was unclear under the case law whether strict or
substantial compliance was required to satisfy the content provisions of the TMMA. The trial
court further ruled that the Appellee’s certificate of good faith complied with the intent of the
General Assembly in providing notice and reducing the number of frivolous lawsuits. As we
perceive it, then, the trial court held that good cause was shown because the Appellee’s
technical, but not material, deviation from strict compliance with the statute was based on
reasonable confusion in the law and the deviation in no way prejudiced the Appellants from
defending this action.
The Appellants argue, however, that, in Tennessee, “a misrepresentation or mistake .
. . cannot constitute ‘good cause.’” As we perceive it, the Appellants take issue with the trial
court’s decision to consider the Appellee’s substantial compliance with the statute as evidence
of good cause. To support this assertion, the Appellants cite the recent Tennessee Court of
Appeals decisions in West v. AMISUB (SFH), Inc., No. W2012-00069-COA-R3-CV, 2013
WL 1183074 (Tenn. Ct. App. March 21, 2013) and DePue v. Schroeder, No. E2010-00504-
COA-R9-CV, 2011 WL 538865 (Tenn. Ct. App. Feb. 15, 2011). However, neither of these
cases is relevant to the issues at hand. Instead, both cases consider whether a mistake may
constitute extraordinary cause rather than good cause. West, 2013 WL 1183074, at *6;
DePue, 2011 WL 538865, at *8 (discussing, in dicta, whether simple “attorney oversight”
constitutes good cause). As we have previously explained, the “extraordinary cause” standard
-23-
is a higher burden than the simple “good cause” standard. Accordingly, neither of these cases
is dispositive of this appeal. In addition, while Appellants assert that the trial court erred in
considering Appellee’s substantial compliance with the statute in deciding to grant the motion
for an extension, Appellants cite no cases in which the trial court has been found to have
abused its discretion in doing so. Indeed, as previously discussed, there have been no cases
which specifically addressed whether good cause existed to extend the time for filing a
certificate of good faith when the plaintiff had substantially, but not strictly, complied with
the statute. See Brandon, 343 S.W.3d at 786 (noting that the plaintiff had not filed any
certificate of good faith, much less substantially complied with Tennessee Code Annotated
Section 29-26-122). Accordingly, we decline to conclude that the trial court was not within
its discretion to consider this fact when making its determination.
In addition, we respectfully disagree with the Appellants’ characterization of the failure
in this case as being the result of mistake or oversight. “Oversight” is defined as “an
unintentional error.” See Bryan A. Garner, A Dictionary of Modern Legal Usage 632 (2d ed.
1995). Here, Appellee does not assert that she mistakenly failed to include the number of prior
violations in her certificate of good faith; instead, she asserts that the law that she relied on
at the time of filing the complaint indicated that a plaintiff who had no prior violations of
Tennessee Code Annotated Section 29-26-122 had nothing to disclose on his or her good faith
certificate, and therefore, the failure to affirmatively state zero violations was not fatal to a
medical malpractice claim. We recognize that this Court and the Tennessee Supreme Court
have held that dismissal of medical malpractice actions was proper, despite the fact that case
law regarding the TMMA was unclear at the time the plaintiffs filed their complaints.
However, as previously discussed, other than the Brandon Opinion, no cases have considered
confusion regarding the law in the context of a motion for an extension to file a certificate of
good faith. See, e.g., Myers, 382 S.W.3d at 310–11 (dismissing the action and noting that the
plaintiff did not file a motion seeking an extension within which to file a certificate of good
faith); Vaughn, 2013 WL 817032, at *6 (considering violations of both Tennessee Code
Annotated Section 29-26-122 and -122, with no indication that the plaintiff filed a motion for
extension); Caldwell, 2013 WL 655239 at *6 (considering two violations of Tennessee Code
Annotated Section 29-26-122 and specifically noting that the plaintiff had not filed a motion
for extension). In addition, while the plaintiff in Brandon may have asserted that she
experienced confusion regarding the filing of her complaint, neither the trial court nor the
appellate court appeared to credit the plaintiff’s assertions or to believe that the plaintiff’s
confusion was in any way reasonable. Accordingly, the Brandon Opinion is not dispositive
of this appeal.
Reasonable confusion as to the law has been held to constitute good cause in other
jurisdictions. For example, in Jonzun v. Estate of Jackson, No. 12-12019-DJC, 2014 WL
1214511 (D. Mass. March 24, 2014), the District Court of Massachusetts noted that a pro se
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plaintiff who has failed to comply with service of process rules may show good cause for an
extension when the plaintiff can demonstrate “confusion on his part, either because of his
unfamiliarity with the rules, or because of his reliance on the misleading advice of others.”
Id. at *5 (citing McIsaac v. Ford, 193 F.Supp.2d 382, 384 (D. Mass. 2002)). Other federal
courts have agreed that reasonable confusion may constitute good cause in different
circumstances. For example in Blake v. Baker, --- F.3d ----, 2014 WL 983623 (9 th Cir. 2014),
the Ninth Circuit Court of Appeals held that while “[t]here is little authority on what
constitutes good cause,” “[a] petitioner’s reasonable confusion . . . will ordinarily constitute
‘good cause’” in the context of exhaustion of state remedies. Id. at *2 (quoting Pace v.
DiGuglielmo, 544 U.S. 408, 416, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005); see also Stillman
v. Staples, Inc., No. 07-849 (KSH), 2009 WL 1437817 (D.N.J. May 15, 2009) (holding that
the trial court did not err in reopening proof, when the plaintiff showed good cause “based
upon a mistake of law concerning the ability to” present certain evidence). In other contexts,
however, reasonable confusion has been held insufficient to constitute good cause. See, e.g.,
Cutler v. State, Dept. of Public Safety & Corrections, --- So.3d ----, 2014 WL 551534, at *3
(La. Ct. App. 2014) (“[M]ere confusion over a party’s proper service information was not
sufficient to show good cause for improper and untimely service . . . .”); Peddicord v. Colvin,
No. CV13-0337-PHX-DGC, 2014 WL 31834, at * (D.Ariz. Jan. 6, 2014) (noting that
“confusion about the purpose” of a prior hearing does not constitute good cause to remand an
administrative decision back to the prior tribunal for the consideration of new evidence).
The Appellants do not assert that the law regarding the content requirements of the
certificate of good faith was clear at the time the Appellee filed her complaint. Indeed, counsel
for the Appellants admitted their own confusion over the state of the law when questioned
about their delay in prosecuting their original motion to dismiss the Appellee’s complaint,
explaining:
Because there wasn’t sufficient case law developed, we didn’t
bring it for a hearing at an earlier time. As soon as there was
sufficient case law construing the specific statute at issue,
specific subsection at issue, we brought it immediately to the
Court for hearing.
Accordingly, even the Appellants were unsure of the proper requirements of Tennessee Code
Annotated Section 29-26-122(d)(4), long after the filing of the complaint in this case. In
addition, the record shows that the two cases in which this issue had been decided by trial
courts in favor of the Appellee’s position, Lonnie Ayers v. Dr. Reath, et. al., and Lynn v.
Coyle, had both been denied interlocutory appeals by the Eastern Section of this Court.
Although we caution litigants from interpreting the denial of an interlocutory appeal as an
affirmance of the underlying decision, we can understand how this state of affairs only added
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to the Appellee’s reasonable confusion in this case. Further, it appears that the plaintiff in
Vaughn filed a Rule 11 application for permission to appeal that case to the Tennessee
Supreme Court. As of the filing of this Opinion, however, the Supreme Court has not taken
any action on that application. But see Caldwell, 2013 WL 655239 at *1, perm. app. denied
(June 13, 2013) (noting two violations of Tennessee Code Annotated Section 29-26-122,
rather than merely a violation of the prior violations provision). In addition, both cases cited
by the Appellants as support for its assertion that the Appellee’s claim should be dismissed
involved more than a mere violation of Tennessee Code Annotated Section 29-26-122(d)(4).
See Caldwell, 2013 WL 655239 at *6 (involving a violation of the requirement that the
plaintiff consult with an expert who provides a written statement); Vaughn, 2013 WL 817032,
at *6 (involving violations of the pre-suit notice provisions of Tennessee Code Annotated
Section 29-26-121). Accordingly, this issue is far from settled. Under these circumstances,
we must conclude that the Appellee’s confusion was reasonable.
Based upon the above case law, there appears to be a split of authority regarding
whether reasonable confusion regarding the law is sufficient to justify good cause. Clearly,
reasonable minds disagree as to this issue. As previously discussed, a trial court’s
discretionary decision must be upheld so long as “reasonable minds can disagree about its
correctness.” Greenamyre, 219 S.W.3d at 886. Consequently, we cannot conclude that the
trial court abused its discretion in finding good cause to support the motion for an extension
in this case and allowing the late-filing of a fully compliant certificate of good faith.14
Accordingly, we affirm the trial court’s denial of the Appellant’s motions to dismiss based on
Appellee’s failure to file a fully compliant certificate of good faith contemporaneously with
her complaint. All other issues are pretermitted.
V. Conclusion
The judgment of the Circuit Court of Shelby County is affirmed. This cause is
remanded to the trial court for all further proceedings as are necessary and are consistent with
this Opinion. Costs of this appeal are taxed to Appellants UHS of Lakeside LLC d/b/a
Lakeside Behavioral Health System; John J. Harris, M.D.; John J. Harris, M.D., P.C.;
14
Appellants also argue that the trial court erred in considering a previously filed certificate of
good faith in denying the motions to dismiss, rather than directing the Appellee to file another certificate
of good faith. From our review of the record, the Appellee filed a copy of her July 6, 2011 certificate of
good faith as an attachment to her motion for extension. The Appellants’ cite no law stating that the trial
court acted beyond its discretion to consider this attachment as the certificate of good faith in denying the
motions to dismiss. Further, there is no dispute that the Appellee eventually filed a fully compliant
certificate of good faith with the trial court. Having been furnished with no law to the contrary,
we conclude that the Appellants have failed to show that the trial court abused its discretion in this
regard.
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Olugbenga Faleye, M.D.; and PrimeHealth Medical Center, P.C., and their surety.
_________________________________
J. STEVEN STAFFORD, JUDGE
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