Recent Medical Malpractice Ruling

On May 29, 2015 the Tennessee Supreme Court filed an opinion resolving a question that may seem trivial, but teaches an important lesson.
Some background: Bringing a healthcare liability action requires some technical steps not required in other types of cases. For example, Tennessee Code Annotated § 29-26-122 states that the plaintiff in a healthcare liability action in which expert testimony is required must file a certificate of good faith. The certificate must recite certain information, including the number of times the person executing the certificate has violated the section, i.e. failed to file a certificate of good faith in a healthcare liability action.
This seemingly trivial technical requirement almost derailed the plaintiff’s lawsuit in Davis v. Ibach, No. W2013-02514-SC-R11-CV (May 29, 2015). Mr. Davis brought a medical malpractice action (or as they are now called in Tennessee, a healthcare liability action) against the doctor who operated on his late wife three days before she died. His lawyer executed and filed a certificate of good faith, but did not state in the certificate how many prior violations he had committed. The appeals court found that he did not comply with the statute, and that the lawsuit had to be dismissed with prejudice.
The Tennessee Supreme Court disagreed. The record reflected that the lawyer had committed no prior violations, and, as the Supreme Court reasoned, he therefore had nothing to disclose, and his certificate of good faith was compliant.
The lesson: Even though Mr. Davis ultimately prevailed on the question of whether his lawyer met the technical requirements to bring his healthcare liability suit, he had to go all the way to the Tennessee Supreme Court just to keep the case from being dismissed on a technicality. Bringing a health care liability action requires a careful reading of the relevant statutory requirements, and close attention to detail. When in doubt about whether something needs to be included, err on the side of inclusion, or you may find yourself fighting to justify your decision to leave it out.