Susan Sirbaugh v. Vanderbilt University, d/b/a Vanderbilt University Medical Center

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
September 16, 2014 Session

SUSAN SIRBAUGH v. VANDERBILT UNIVERSITY, d/b/a VANDERBILT
UNIVERSITY MEDICAL CENTER, ET AL.

Appeal from the Circuit Court for Davidson County
No. 12C4744 Hamilton V. Gayden, Jr., Judge

No. M2014-00153-COA-R9-CV - Filed December 30, 2014

The plaintiff in this interlocutory appeal filed a complaint asserting health care liability
claims against the original defendants, at which time she included a certificate of good faith
in accordance with Tennessee Code Annotated section 29-26-122. The original defendants
asserted comparative fault against non-party health care providers. The plaintiff waived
compliance by the original defendants with section 29-26-122(b), which required the
defendants to file a certificate of good faith regarding the non-party health care providers.
The plaintiff thereafter amended her complaint to add the named non-party health care
providers as new defendants but did not file a new certificate of good faith. The new
defendants moved to dismiss the amended complaint. The trial court denied the motions and
granted this interlocutory appeal. We reverse.

Tenn. R. App. P. 9 InterlocutoryAppeal; Judgment of the Circuit Court
Reversed; Case Remanded

J OHN W. M CC LARTY, J., delivered the opinion of the Court, in which J. S TEVEN S TAFFORD,
P.J., M.S., and B RANDON O. G IBSON, J., joined.

Reid D. Leitner and Leighann D. Ness, Nashville, Tennessee, for the appellant, Elk Valley
Home Health d/b/a Deaconess Homecare.

James E. Looper, Jr. and Heather D. Piper, Nashville, Tennessee, for the appellant Hardin
Medical Center.

Joe Bednarz, Jr., and Joe Bednarz, Sr., Hendersonville, Tennessee, for the appellee, Susan
Sirbaugh.

Steven E. Anderson, Sara F. Reynolds, and Sean C. Wlodarczyk, Nashville, Tennessee, for
the appellees, The Vanderbilt University and Kevin Hagan, M.D.

OPINION

I. BACKGROUND

The plaintiff, Susan Sirbaugh, underwent a bilateral reduction mammoplasty and
panniculectomy, performed by Kevin F. Hagan, M.D., at Vanderbilt University Medical
Center (“VUMC”) on April 4, 2011. Upon experiencing some hemorrhaging at the incision
site, Ms. Sirbaugh was taken back to the operating room. She was later discharged home and
received home health services from Elk Valley Home Health d/b/a Deaconess Homecare
(“Deaconess”) over the next several months. According to the complaint, Ms. Sirbaugh
experienced pain and suffering, nausea, vomiting, low grade fever, and intermittent chest
pain during this period.

On April 20, 2011, Ms. Sirbaugh went to Hardin Medical Center (“HMC”) for
treatment of the incision opening. She returned to HMC on July 21, 2011, with complaints
of chest pain and was transferred to VUMC via ambulance for further evaluation and
treatment. During this admission to VUMC, additional tests were performed, and a second
surgery took place on July 25, 2011, at which time it is alleged that a sponge was discovered
and removed.1

Ms. Sirbaugh submitted pre-suit notice of her intent to file a health care liability2
action against Dr. Hagan and VUMC (“the Original Defendants”) on April 2, 2012. Seven
months later, suit was filed against the Original Defendants on November 20, 2012, seeking
damages allegedly associated with the retained foreign body. A certificate of good faith was
attached to the complaint in accordance with Tennessee Code Annotated section 29-26-122.
Neither HMC nor Deaconess were named by Ms. Sirbaugh in the initial complaint.

The Original Defendants filed an answer on March 26, 2013, asserting comparative
fault claims against non-parties HMC and Deaconess. As provided by Tennessee Code
Annotated section 29-26-122(b), the Original Defendants were required to file a certificate
of good faith establishing a good faith basis for alleging fault against HMC and Deaconess

1
In Dr. Hagan’s operative report he states he found “a sponge, which was some type of a 4 x 4 sponge
without any radiologic markers.” The Surgical Pathology Report indicates “retained foreign object” and
“consists of single strip of surgical gauze measuring 23.8 x 7.1 x 0.3 cm.”
2
In 2012, Tennessee Code Annotated sections 29-26-115 to -122 and section -202 of the Medical
Malpractice Act were amended to replace “medical malpractice” with “health care liability.” Act of Apr.
23, 2012, ch. 798, sections 7 to 15, §§ 29-26-115 to -122 & -202.

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within thirty days after filing their answer. Pursuant to Tennessee Code Annotated section
29-26-122(c), however, Ms. Sirbaugh orally waived this requirement. The oral waiver was
confirmed later by letter.

Ms. Sirbaugh amended her complaint on May 30, 2013, to add HMC and Deaconess
as parties (“the New Defendants”). Ms. Sirbaugh did not, however, file a certificate of good
faith in conjunction with her amended complaint.

Subsequently, both HMC and Deaconess moved for dismissal of the claims against
them based on Ms. Sirbaugh’s failure to attach a certificate of good faith to her amended
complaint. They argued that pursuant to Tennessee Code Annotated section 29-26-122(a),
Ms. Sirbaugh was required to submit proof, in the form of a certificate of good faith,
verifying a good faith basis for pursuing an action against the newly named defendants.

According to Ms. Sirbaugh, the good faith certificate requirement only applied to the
initial complaint. She argued that if one has filed a certificate of good faith with the original
complaint, the plaintiff is compliant and there can be no dismissal. Ms. Sirbaugh’s counsel
stated as follows:

The plain language of the statute doesn’t say that Plaintiff may waive that
requirement [that the defendant file a certificate of good faith] if they submit
a certificate of good faith. It’s presumed that the legislature means exactly
what they say, and that if they had meant that the Plaintiff had to file a
certificate of good faith upon waiving the Defendant’s obligation to do so, they
would have said that.

Counsel continued:

TCA § 29-26-121, where the legislature has made a distinction between the
original complaint and an amended complaint that’s filed after an allegation
of comparative fault.

Paragraph C of that statute says, “Once a Complaint is filed alleging a claim
for health care liability, the notice provisions of this section shall not apply to
any person or entity that is made a party to the action thereafter by amendment
to the pleadings as a result of the defendant’s alleging comparative fault.” So
they have made that distinction as to the process that somebody has to go
through between filing the original complaint and filing a complaint in
response to an allegation of comparative fault.

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 The statutes have to be construed to have a purpose. If we were to accept [the
New Defendants’] interpretation, it’s hard to imagine a situation where
Plaintiff would ever waive compliance where they have to accept the
responsibility to file a certificate of good faith. So that would render this part
of the statute completely meaningless. . . . The statute just doesn’t put this
burden on the Plaintiff. Any statutes have to be strictly construed, there is no
such burden.

As far as a good faith basis for alleging comparative fault, Rule 11 required the
lawyers for Vanderbilt to have a good faith basis for making these allegations
of comparative fault when they filed this answer.

HMC argued that Ms. Sirbaugh’s waiver of the Original Defendants’ requirement to
file a certificate of good faith addressing their comparative fault claims did not release her
from the obligation to file a certificate of good faith when she added the New Defendants to
the lawsuit.3 Deaconess added that the requirement to file a good faith certificate with a
complaint is “mandatory,” and “not subject to satisfaction by substantial compliance.” Myers
v. AMISUB (SFH), Inc., 382 S.W.3d 300, 310 (Tenn. 2012). Thus, Deaconess claimed that
Ms. Sirbaugh’s filing of a certificate of good faith certificate with respect to VUMC and Dr.
Hagan with the initial complaint cannot be found to “substantially comply” with the
requirement to file a certificate of good faith with the amended complaint adding HMC and
Deaconess. Jenkins v. Marvel, 683 F.Supp. 2d 626 (E.D. Tenn. 2010) was cited by
Deaconess in support of the claim that the primary purpose of enacting the good faith
certificate requirement was to ensure that a health care provider will not be sued for
professional negligence unless a plaintiff has first conferred with a medical expert to
establish that there is a good faith basis for the action. See Tenn. Code Ann. § 29-26-
122(a)(1); Jenkins, 683 F.Supp. 2d at 639 (good faith certificate requirement is to “weed out
frivolous lawsuits” before parties incur substantial litigation expenses).

Bottom line, HMC and Deaconess were sued as health care provider defendants
without any certificate of good faith being filed by any party to evidence the opinion of a
qualified medical expert that there was a good faith basis to maintain the action against them
consistent with the requirements of Tennessee Code Annotated section 29-26-115(a), which
provides:

(a) In a health care liability action, the claimant shall have the burden of

3
HMC, as a governmental entity, additionally sought dismissal based on Ms. Sirbaugh’s failure to
timely file her claim against it within the statute of limitations applicable to claims falling under the
Governmental Tort Liability Act (“GTLA”).

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 proving by evidence as provided by subsection (b):

(1) The recognized standard of acceptable professional practice in
the profession and the specialty thereof, if any, that the
defendant practices in the community in which the defendant
practices or in a similar community at the time the alleged injury
or wrongful action occurred;

(2) That the defendant acted with less than or failed to act with
ordinary and reasonable care in accordance with such standard;
and

(3) As a proximate result of the defendant’s negligent act or
omission, the plaintiff suffered injuries which would not
otherwise have occurred.

Tenn. Code Ann. § 29-26-115(a)(1)-(3).

The trial court granted an interlocutory appeal at the motion hearing, providing, inter
alia, as follows:

So the Court is going to rule that the Plaintiff did not have to give a good faith
certificate in suing the amended defendants, [HMC] and [Deaconess]. And
that’ll go up because the statute does say the Plaintiff can waive this. And how
they can affect Defendants like [Deaconess] and [HMC] is beyond me, but
that’s what the statute says. . . . And the Court is going to rule that it is not
filed outside the statute of limitations, which should be answered in the appeal.

The court thereafter denied the motions to strike and dismiss in an order entered on January
15, 2014. We subsequently granted this interlocutory appeal pursuant to Rule 9 of the
Tennessee Rules of Appellate Procedure.

II. ISSUES

Unlike an appeal as of right pursuant to Rule 3 of the Tennessee Rules of Appellate
Procedure, “in which both the appellant and the appellee have broad latitude with regard to
the issues that may be raised,” the questions we may address are limited to “those matters
clearly embraced within” the issues certified by the trial court. Sneed v. The City of Red
Bank, Tennessee, ___ S.W.3d ___, E2012-02112-SC-R11-CV (Tenn. Dec. 2, 2014) (internal

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citations omitted). We have restated the issues identified by the trial court in its order as
follows:

(1) Whether Ms. Sirbaugh violated Tennessee Code Annotated section 29-
26-122 by failing to attach a certificate of good faith to her amended
complaint verifying a good faith basis for pursuing health care liability
claims against the New Defendants, where the New Defendants were
added as parties via the amended complaint;

(2) Whether Ms. Sirbaugh’s waiver of the requirement of the Original
Defendants to file a certificate of good faith under Tennessee Code
Annotated section 29-26-122(c), made when HMC and Deaconess were
non-parties, creates a statutory obligation for Ms. Sirbaugh to submit
a certificate of good faith with her amended complaint; and

(3) Whether the Original Defendants had an obligation under Tennessee
Code Annotated section 29-26-122 to file a certificate of good faith in
support of their defense of comparative fault when HMC and
Deaconess were added as new parties via Ms. Sirbaugh’s amended
complaint due to the allegations of comparative fault asserted by
VUMC and Dr. Hagan and the effect, if any, that Ms. Sirbaugh’s
waiver under Tennessee Code Annotated section 29-26-122(c) had on
any such obligation under Tennessee Code Annotated section 29-26-
122.

III. STANDARD OF REVIEW

Statutory construction is a question of law that we review de novo without any
presumption of correctness. In re Estate of Tanner, 295 S.W.3d 610, 613 (Tenn. 2009). As
noted by our Supreme Court in Myers v. AMISUB (SFH), Inc., 382 S.W.3d 300 (Tenn.
2012):

The leading rule governing our construction of any statute is to ascertain and
give effect to the legislature’s intent. To that end, we start with an
examination of the statute’s language, presuming that the legislature intended
that each word be given full effect. 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

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 statute’s meaning.

Id. at 308 (citations omitted). Where statutory language or a statute’s meaning is ambiguous,
we review the overall statutory scheme, the legislative history, and other sources. In
construing multiple statutes, our goal is to choose the most reasonable construction “which
avoids statutory conflict and provides harmonious operation of the laws.” Thurmond v. Mid-
Cumberland Infectious Disease Consultants, PLC, 433 S.W.3d 512, 517 (Tenn. 2014)
(internal quotation marks omitted).

IV. DISCUSSION

Certificate of Good Faith

Tennessee Code Annotated section 29-26-122(a) states as follows:

(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; or

(2) The plaintiff or plaintiff’s counsel has consulted with one (1) or
more experts who have provided a signed written statement

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

Tenn. Code Ann. § 29-26-122(a) (emphasis added). Expert testimony is required under
Tennessee Code Annotated section 29-26-115, except where the act of alleged health care
liability lies within the knowledge of ordinary laymen. See Kenyon v. Handal, 122 S.W.3d
743, 758 (Tenn. Ct. App. 2003). Our Supreme Court in Myers has opined that the filing of
a certificate of good faith with a complaint is mandatory, and strict compliance is required.
Myers, 382 S.W.3d at 308. We note that Tennessee Code Annotated section 29-26-
122(a)(2)(B) specifically references “each defendant.”

Pursuant to Tennessee Code Annotated section 29-26-122(b), a defendant who
identifies comparative fault by a non-party is required to file a certificate of good faith
regarding the non-party at fault within thirty days after the filing of the answer:

(b) Within thirty (30) days after a defendant has alleged in an answer or
amended answer that a non-party is at fault for the injuries or death of
the plaintiff and expert testimony is required to prove fault as required
by § 29-26-115, each defendant or defendant’s counsel shall file a
certificate of good faith stating that:

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 (1) The defendant or defendant’s counsel has consulted with one (1)
or more experts, which may include the defendant filing the
certificate of good faith, 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 reviewed concerning
the care and treatment of the plaintiff for the incident or
incidents at issue, that there is a good faith basis to allege
such fault against another consistent with the
requirements of § 29-26-115; or

(2) The defendant or defendant’s counsel has consulted with one (1)
or more medical experts, which may include the defendant filing
the certificate of good faith, 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 reviewed concerning
the care and treatment of the plaintiff for the incident or
incidents at issue, that there are facts material to the
resolution of the case that cannot be reasonably
ascertained from the information reasonably available to
the defendant or defendant’s counsel; and that, despite
the absence of this information, there is a good faith
basis for alleging such fault against another, whether
already a party to the action or not, consistent with the
requirements of § 29-26-115.

Tenn. Code Ann. § 29-26-122(b).

Pursuant to Tennessee Code Annotated section 29-26-122(c), a plaintiff faced with
a defendant who raises comparative fault allegations against a non-party may:

• Allow the defendant to timely file the requisite certificate of good faith and
either (a) file suit against the non-party subject to -122(a), or (b) face the risk

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 of fault being assigned to a non-party at trial;

• Seek to strike the allegations of comparative fault if the defendant fails to
timely file the certificate of good faith; or

• Waive the defendant’s requirement to file a certificate of good faith and
either (a) file suit against the non-party subject to -122(a), or (b) face the risk
of fault being assigned to a non-party at trial.

Tennessee Code Annotated section 29-26-122(c) specifically provides:

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

Tenn. Code Ann. § 29-26-122(c)(emphasis added).

In this action, when Ms. Sirbaugh filed her initial complaint, the expert’s opinion was
predicated on his or her belief that there was a good faith basis to maintain the cause of
action against the Original Defendants, VUMC and Dr. Hagan. As permitted in § 29-26-
122(c), Ms. Sirbaugh apparently waived the requirement that the Original Defendants file a
certificate of good faith when they made allegations against non-party health care providers.
However, when Ms. Sirbaugh learned that HMC and Deaconess might be at fault, waived
the filing of a certificate of good faith by the Original Defendants, and decided to amend her
complaint to add the non-parties, “she was required to consult with an expert to determine
whether there was a good faith basis to maintain a cause of action against [HMC and

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Deaconess] and to file a certificate indicating as such with her amended complaint” 4 adding
them as defendants. Groves v. Colburn, No. M2012-01834-COA-R3-CV, 2013 WL
3964758, at *3 (Tenn. Ct. App. July 30, 2013). Like we noted in Groves, “[s]ince the
allegations changed to claim . . . liability based on different facts, a new certificate based
upon the expert’s review of newly alleged facts was necessary.” Id. The purpose of this
mandate is to ensure that there has been expert certification of a good faith basis for
maintaining a claim against any new defendant.

Like the plaintiff in Groves, Ms. Sirbaugh failed to file a second certificate of good
faith with her amended complaint that certified an expert’s review of the facts and claims
specific to HMC and Deaconess and the belief that there was a good faith basis for pursuing
the claims against them. As the Groves decision makes clear, Ms. Sirbaugh could not rely
on the certificate of good faith filed with the initial complaint because that certificate was
predicated on an expert’s belief that there was a good faith basis to maintain the cause of
action against the Original Defendants and not the New Defendants. Groves, 2013 WL
3964758, at *3. Ms. Sirbaugh was obligated to file a statutorily compliant certificate of good
faith with her amended complaint. She violated Tennessee Code Annotated section 29-26-
122 by failing to do so. Therefore, dismissal of the claims against HMC and Deaconess was
mandated. See Portwood v. Montgomery Cnty, Tenn., No. 3:13-cv-0186, 2013 WL 6179188
(M.D. Tenn. Nov. 25, 2013) (“If either a plaintiff or a defendant fails to comply with Section
122, the plaintiff’s complaint or the defendant’s allegations of fault against a non-party are,
upon motion, subject to mandatory dismissal with prejudice.”).

Our ruling regarding the above issue, which dismisses the claims against HMC and
Deaconess, pretermits consideration of the other issues presented.

V. CONCLUSION

For the foregoing reasons, the trial court’s ruling on the motions to dismiss is
reversed. The case is remanded to the trial court for entry of an order dismissing the
amended complaint adding Hardin Medical Center and Elk Valley Home Health d/b/a
Deaconess Homecare as defendants. Costs of this appeal are assessed against appellee Susan
Sirbaugh for which execution may issue if necessary.
_________________________________
JOHN W. McCLARTY, JUDGE

4
This court has previously indicated its belief that this holding is consistent with Tennessee Code
Annotated section 29-26-122(b), which requires defendants who allege fault against non-parties to file a
certificate of good faith with their answer. Groves, 2013 WL 3964758, at *3, f. 5.

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