A malpractice complaint was filed by Theresa A. Kerby against surgeon Melinda J. Haws, alleging that a small metal object left in her body during surgery caused a series of persistent MRSA infections. Kerby attached a certificate of good faith to her complaint, indicating that an expert had reviewed the case and supported her claims based on medical records, as required by Tenn. Code Ann. 29-26-122. After the object was identified as a surgical clip designed to remain in the body, Haws moved for summary judgment, which Kerby did not oppose. Subsequently, Haws sought sanctions against Kerby for violating the good faith certification statute, leading to the trial court awarding over $22,000 in attorney fees to Haws. However, the appellate court reversed this decision. Kerby's surgery occurred on March 23, 2003, and she experienced multiple hospitalizations for MRSA infections over the next six years, culminating in the discovery of the metal object in June 2009. Following this discovery, Kerby sent a Notice of Potential Claim to her attorney on May 26, 2010, citing the surgical incident and the subsequent finding of the metal piece.
Mr. Thomas expressed a preference not to sue unnecessary parties and encouraged potential defendants to consult their insurance and legal counsel before the statute of limitations expired. He contacted Dr. Martin Evans, a vascular surgery expert, to review Ms. Kerby’s medical history, focusing on her initial surgery and post-operative MRSA infections, highlighting the discovery of a broken surgical instrument in her wound. Dr. Evans agreed to review her case and subsequently opined, in a letter dated August 8, 2010, that Dr. Haws had breached the standard of care by failing to remove the instrument, which he believed caused Ms. Kerby’s infections. However, he did not inspect the object himself. On August 30, 2010, Mr. Thomas filed a malpractice complaint in the Circuit Court of Davidson County, including a Certificate of Good Faith confirming consultation with an expert.
After filing, Dr. Haws’ attorney requested photographs of the object removed from Ms. Kerby’s wound. Mr. Thomas provided these photographs, which were reviewed by Dr. Haws and Dr. Thomas Naslund, the defense expert. Both concluded that the object was not a broken instrument but a surgical clip used to control bleeding. Dr. Haws filed a motion for summary judgment on February 11, 2011, supported by affidavits from both doctors stating that the clip was not a retained foreign body and did not cause the infections, as it was likely placed during a later surgery in May 2009. Following this, Mr. Thomas informed the defendant's attorney that he would not contest the motion. The court subsequently granted summary judgment to Dr. Haws, dismissing Ms. Kerby’s complaint.
On May 19, 2011, Dr. Haws filed a motion for sanctions against Mr. Thomas under Tenn. Code Ann. 29-26-122, alleging that he did not consult with a qualified medical expert or obtain a signed written statement before submitting a certificate of good faith. Dr. Haws requested the court to compel Mr. Thomas to provide copies of the expert statements relied upon. In response, Mr. Thomas submitted Dr. Evans' opinion letter dated August 8, 2010, which contradicted Dr. Haws' allegations regarding the absence of a written statement. The memorandum also claimed that Ms. Kerby, a registered nurse, was not qualified to testify regarding the standard of care of a plastic surgeon or causation. Dr. Haws further contended that Mr. Thomas failed to send Dr. Evans a photo of a metal piece found in Ms. Kerby’s wound for independent identification, emphasizing the necessity of an expert opinion under the statute. On August 24, 2011, the court granted Dr. Haws' motion for sanctions, awarding him $22,184 in expenses incurred in his defense, without detailing its reasoning. This decision was subsequently appealed.
Tenn. Code Ann. 29-26-122, amended in 2008 and 2009, mandates that medical malpractice plaintiffs file a certificate of good faith with their complaint, confirming consultation with an expert who attests to the merits of the claim. The requirement aims to prevent the filing of frivolous lawsuits and to ensure that claims are substantiated before significant litigation costs arise. Failure to comply can lead to dismissal of the action with prejudice.
Subsection (d) outlines specific protections and consequences in health care liability actions regarding the certificate of good faith. It prohibits the discovery of the expert opinion details relied upon by the plaintiff but allows exceptions for the court to assess the good faith of the certificate. If a party prevails due to the opposing party's lack of competent expert testimony, the court can compel the opposing party to submit the signed statements of the experts involved. Additionally, the court may require expert testimony under oath to verify compliance with statutory requirements.
If the court finds a violation of this section, it can impose sanctions on the attorney or pro se party, which may include covering attorney fees and costs incurred by the compliant party. The statute mandates the plaintiff's attorney to certify consultation with an expert, obtain a written statement confirming the expert's competence, and include the expert’s belief in a good faith basis for the action based on medical records. Mr. Thomas provided a compliant good faith certificate, and the validity of the expert's opinion does not equate to a violation of the statute.
Dr. Haws argues that Mr. Thomas wrongly relied on an assumption when consulting Dr. Evans regarding the cause of Ms. Kerby’s MRSA infections. However, evidence indicates the expert based his opinion solely on Ms. Kerby’s medical records, which confirmed the presence of a broken surgical instrument. Mr. Thomas had no reason to doubt these records, and the statute permits the expert to seek additional information if the medical records are insufficient, further supporting the validity of the expert’s reliance on the available records.
Dr. Evans did not request additional information or examine the object in question, relying solely on medical records, which is typical for attorneys who are not medical professionals. There is no statutory requirement for an expert witness to investigate beyond these records unless deemed necessary for an informed opinion. Mr. Thomas, the attorney, had no reason to suspect the nature of the metal object and thus did not investigate further. Dr. Haws claims the certificate of good faith is non-compliant because Dr. Evans based his opinion partially on Ms. Kerby’s identification of the object rather than on direct observation. Tennessee Code Annotated 29-26-122(a)(1)(B) mandates that an expert’s opinion must be based on medical records relevant to the plaintiff’s care. The records reviewed by Dr. Evans included notes from nurses confirming the presence of a shiny metal piece in the wound, which does not disqualify the records from being used by an expert. The certificate of good faith is a procedural requirement and does not guarantee the claim's merit. Dr. Haws’ objections regarding sanctions are issues typically addressed as the case progresses and do not justify sanctions for the certificate of good faith's violation. The required pre-filing notice was issued, and there was no evidence of further attempts to gather information that could have dissuaded the attorney from filing. Dr. Haws seeks to broaden the interpretation of the statute beyond its clear language, which is subject to de novo legal review.
The fundamental principle of statutory construction is to determine and implement the legislature's intent and purpose. Courts must interpret statutes without excessively limiting or broadening their scope. Legislative intent should primarily be derived from the statute's plain language, avoiding forced interpretations. In this case, the certificate of good faith submitted by Mr. Thomas complied with Tenn. Code Ann. § 29-26-122, leading to the vacating of sanctions previously imposed by the trial court. The trial court's judgment is reversed, and the case is remanded to the Circuit Court of Davidson County for further proceedings, with costs on appeal taxed to the appellees, Dr. Melinda J. Haws and The Plastic Surgery Center of Nashville, PLLC. Additionally, while Dr. Haws referenced an argument related to Tenn. R. Civ. P. 11 regarding reasonable inquiry, she did not raise this in her sanctions motion, nor did the trial court address it. Furthermore, there was no indication that the notice required by Rule 11 was provided. The court emphasized that the specific provisions of Tenn. Code Ann. § 29-26-122 were more applicable. Lastly, a claim made by Dr. Haws's counsel about Mr. Thomas lacking an expert's written statement before filing the complaint was deemed inaccurate, with no clear inquiry supporting that assertion.
