Brett Hanson v. Sarah J. Levan

10/25/2021
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
August 18, 2021 Session
BRETT HANSON ET AL. v. SARAH J. LEVAN ET AL.
Appeal from the Circuit Court for Knox County
No. 3-535-16 Deborah C. Stevens, Judge
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No. E2020-01581-COA-R9-CV
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In this healthcare liability action, the plaintiff sued several medical professionals and
facilities. Following an amended complaint, which had removed multiple parties from the
action, the remaining defendants filed their answer to the amended complaint that included
allegations of comparative fault against a doctor that the plaintiff had removed as a party
to the action in the amended complaint. The defendants did not file a certificate of good
faith in compliance with Tennessee Code Annotated § 29-26-122, which is required when
a defendant alleges comparative fault against a “non-party.” Following a motion by the
plaintiff, the trial court entered an order striking the defendants’ allegations of comparative
fault. The trial court further found that the defendants had not demonstrated good cause to
support an extension of time to file a certificate of good faith. Discerning no error, we
affirm.
Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Circuit Court
Affirmed; Case Remanded
D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which FRANK G.
CLEMENT, JR., P.J., M.S., and THOMAS R. FRIERSON, II, J., joined.
Hanson R. Tipton and Courtney E. Read, Knoxville, Tennessee, for the appellants, Sarah
J. Levan and Summit Medical Group, PLLC.
Robert E. Pryor, Jr., Knoxville, Tennessee, for the appellee, Brett Hanson, individually, as
next of kin to Tobi Lynn Hanson (deceased), and on behalf of Kenley Hanson (a minor).
OPINION
Background
This action involves the medical care received by Tobi Lynn Hanson (“Decedent”).
Brett Hanson, individually, as next of kin to Decedent, and on behalf of Kenley Hanson (a
minor) (“Plaintiff”) alleged in his complaint that Decedent had been medically treated by
Spencer Adoff, MD, in the emergency department at the University of Tennessee Medical
Center for leg pain. Dr. Adoff was an independent contractor of Southeastern Emergency
Physicians. Decedent was treated a few days later by Sarah J. Levan at Summit Medical
Group, PLLC. Sarah J. Levan is a family nurse practitioner employed by Summit Medical
Group, PLLC, and at times practices under the guidance and supervision of Brian T.
Mosrie, MD. It is disputed as to what Decedent was treated for while at Summit Medical
Group, PLLC. Dr. Mosrie approved the course of treatment recommended by Ms. Levan
regarding Decedent. Plaintiff alleged that Decedent died approximately a week later in
August 2015 of a “pulmonary emboli due to deep venous thrombosis of the leg.”
Following Decedent’s death, Plaintiff filed a complaint alleging negligence and
wrongful death in November 2016, in which he identified the following as defendants to
the action: (1) Spencer Adoff, MD; (2) Team Health, Inc.; (3) Sarah J. Levan; (4) Brian T.
Mosrie, MD; (5) Summit Medical Group, PLLC; and (6) University Health System, Inc.
d/b/a University of Tennessee Medical Center. Plaintiff attached the required pre-suit
notice and filed a certificate of good faith with his complaint, which listed multiple
defendants in the style of the case including Spencer Adoff, MD. In January 2017, Sarah
J. Levan and Summit Medical Group, PLLC (collectively, “Defendants”), as well as Dr.
Mosrie, filed a collective answer to the original complaint, in which it included allegations
of modified comparative fault. Specifically, Defendants and Dr. Mosrie alleged that the
actions of others, “including Plaintiff, [Decedent], other Defendants, and/or other unnamed
parties, may have been a proximate or contributing cause to any injuries allegedly
suffered,” that such fault should be considered by the jury, and that any award against
Defendants and Dr. Mosrie should be reduced by these other parties’ degree of fault.
Plaintiff subsequently dismissed all claims against Team Health, Inc., and
substituted Southeastern Emergency Physicians, LLC, as a party defendant. The Trial
Court thereafter granted summary judgment in favor of Southeastern Emergency
Physicians, dismissing all claims against it. The parties participated in mediation in
January 2019, wherein some issues were settled. Subsequently, Defendants and Dr. Mosrie
filed a motion to amend their answer, seeking to modify the paragraph in the complaint
alleging comparative fault to specifically identify Dr. Spencer Adoff and University Health
Systems, as well as to include Melissa Childress, Decedent’s mother and a registered nurse.
A hearing date was scheduled on the motion but it was continued by agreement of the
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parties. This motion was not addressed by the Trial Court before Plaintiff filed his motion
to amend the complaint.
Thereafter, Plaintiff filed a motion to amend the complaint in March 2019,
identifying Defendants and Dr. Mosrie as the only remaining defendants. The proposed
amended complaint, which was included as an exhibit to the motion, removed the
allegations against the other defendants. This motion, accompanied by the proposed
amended complaint, included a certificate of service to Defendants’ attorney. In June 2019,
the Trial Court entered an order allowing Plaintiff to file his amended complaint, upon
agreement of the parties and for good cause shown. This order was signed by Plaintiff’s
attorney on his own behalf and on behalf of Defendants’ attorney by permission. Plaintiff
attached as exhibits to the amended complaint copies of the original pre-suit notice and the
original certificate of good faith that had been filed in November 2016.
While the motion to amend the complaint was pending, the Trial Court entered two
orders dismissing the claims against two defendants. In March 2019, an agreed order of
dismissal was entered by the Trial Court, which dismissed the action as to Spencer Adoff,
MD, with prejudice. This order was signed by respective counsel for Plaintiff and Dr.
Adoff, and did not contain a certificate of service to the remaining parties. A scheduling
order was subsequently entered identifying as defendants Ms. Levan, Dr. Mosrie, and
Summit Medical Group, PLLC. The Trial Court entered the second order of dismissal in
May 2019, which involved the defendant, University Health Systems, Inc. This order of
dismissal stated that all matters in controversy regarding University Health Systems, Inc.
had been resolved and that the action was dismissed with prejudice as to this defendant.
Following the Trial Court’s order allowing Plaintiff to amend his complaint,
Defendants and Dr. Mosrie filed a collective answer to Plaintiff’s amended complaint in
July 2019. The answer to the amended complaint included similar allegations regarding
comparative fault as in the previous amended answer that never was filed. The answer to
the amended complaint included specific allegations of fault against Decedent, Dr. Adoff,
University Health Systems, and Ms. Childress. As relevant to Dr. Adoff, this answer
included the following:
Specifically, [Decedent] was seen at University Health Systems on August
1, 2015 by attending physician Spencer Adoff, M.D. for right calf pain. In
his evaluation and care of [Decedent], Spencer Adoff, M.D. discontinued a
Doppler Lower Extremity ultrasound for [Decedent] ordered by resident
Christina Yang, D.O.[1] To the extent that Dr. Adoff’s actions in
1
A separate action was filed against the State of Tennessee, due to the actions of Dr. Christina Yang or
other state employees, which was ultimately consolidated with this action. Following consolidation, the
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discontinuing the ultrasound and/or failing to diagnose and/or treat
[Decedent] for a deep vein thrombosis and/or pulmonary embolism on
August 1, 2015 are determined at trial to have violated the applicable
standard of care to physicians in the Knox County community and/or
proximately caused [Decedent’s] injury, fault should be attributed to Dr.
Adoff and University Health System.
No certificate of good faith was filed with this answer to the amended complaint.
In December 2019, Defendants filed a notice with the Trial Court that they had
served upon Plaintiff their “Rule 26 Disclosures of Expected Expert Witnesses,” in which
Defendants disclosed that they intended to call an expert witness to testify, in part,
regarding the medical care Decedent received when being treated by Dr. Adoff. Plaintiff
subsequently filed a motion, requesting that the Trial Court strike Defendants’ and Dr.
Mosrie’s defense of comparative fault and to exclude any expert testimony supporting this
defense. In his motion, Plaintiff argued that Defendants and Dr. Mosrie had not filed a
certificate of good faith with their answer to the amended complaint, which alleged
comparative fault against the non-parties, Dr. Adoff and Ms. Childress.
Defendants and Dr. Mosrie filed a response in opposition to Plaintiff’s motion to
strike, arguing that Dr. Adoff was not “a ‘new’ party to this litigation” and that Plaintiff
had already filed a certificate of good faith as to Dr. Adoff that arose out of the same factual
allegations. Defendants conceded that no certificate of good faith was filed as to Ms.
Childress but argued that a certificate of good faith was not necessary “for Dr. Adoff, a
party to this action.” Alternatively, Defendants requested an extension of time to file a
certificate of good faith if such a certificate is required. Defendants’ request for an
extension of time stated as follows, in its entirety: “Alternatively, should this Court require
a Certificate of Good Faith for allegations of comparative fault against Dr. Adoff, these
Defendants request that the Court grant leave to these Defendants to submit same within
30 days as provided by Tenn. Code Ann. § 29-26-122(c) for good cause shown.”
Defendants attached to their response copies of Plaintiff’s original certificate of
good faith and various emails concerning the case. The Trial Court noted that Plaintiff also
submitted a “complete copy” of the emails as an exhibit at the motion hearing. The Trial
Court summarized those emails as follows:
The Court also notes that there were a series of email communications
between the filing of the Motion to Amend Answer filed on January 1, 2019
related to having the motion set for a hearing. The motion to file an amended
Trial Court granted summary judgment in favor of the State of Tennessee and dismissed with prejudice all
claims against the State of Tennessee.
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answer was originally set on February 22, 2019 and Plaintiff’s counsel
requested that it be rescheduled, and defense counsel agreed to reset on
March 29, 2019. On March 25, 2019, Plaintiff’s counsel sent an email
indicating that he had an opportunity to go out of town on Friday the 29th
with his son and was checking to see if they could reschedule or work out an
agreed order. On March 25, Defense counsel indicates that he has no
problem working things out and wants to know if Plaintiff is opposing his
motion to amend his answer. Thereafter, on March 25, Plaintiff’s counsel
indicates that he has filed a motion to amend as well. The email further states
“I figure if you don’t oppose mine, you will get to answer the amended
complaint and won’t need to amend.” Defense counsel responds that he has
not seen the Plaintiff’s motion to amend and asks him to email a copy. On
March 27, there is email communication in which Plaintiff’s counsel asks
defense counsel if they will enter an “agreed order on the [plaintiff’s]
amendments so [defendants] can go ahead and answer.” Thereafter, there
are discussions regarding a new trial date and on April 5, 2019, defense
counsel advises Plaintiff’s counsel that they can enter an agreed order on the
motion to amend the complaint.
It is also noted that in the emails attached to Defendants’ response in
opposition to the motion to strike, Exhibit 7 is a copy of emails between
Defendants’ counsel and defense counsel for Dr. Adoff on July 8, 2019.
Counsel for Levan, Mosrie and Summit is asking counsel for Dr. Adoff if an
order was ever entered dismissing Dr. Adoff. Counsel responds that the
order dismissing Dr. Adoff was sent to the Court on March 20, 2019, but they
will follow up to see if the Order was entered.
(Footnote and other internal citations omitted.) While Plaintiff’s motion to strike was
pending, Plaintiff filed a notice of voluntary dismissal as to Brian T. Mosrie, MD, in
February 2020, which was followed by a court order dismissing the action against Dr.
Mosrie without prejudice.
The Trial Court entered its order in March 2020, granting Plaintiff’s motion to strike
Defendants’ allegations regarding comparative fault. The Trial Court determined that Dr.
Adoff was not a party to the action when Defendants filed their answer to the amended
complaint and that a certificate of good faith was necessary. Following its analysis of
relevant statutory law, the Trial Court stated as follows in its written order:
There is no question that a certificate of good faith was not filed with
the Defendants’ answer to the amended complaint and there was no
certificate of good faith filed within thirty (30) days of the filing of the
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amended answer. There is also no assertion that the certificate of good faith
could not be filed because medical records were withheld.
Defendants argue that it was unnecessary for them to file a certificate
of good faith because they filed a motion to amend their answer to the
original complaint while Dr. Adoff was a named party. They argue that the
motion to amend was never heard and, therefore it is still pending. They
assert that they are entitled to rely on Plaintiff’s certificate of good faith.
Defendant states: “Plaintiff’s decision to dismiss Dr. Adoff through an
Agreed Order of Dismissal with Prejudice entered by this Court on March
25, 2019, nearly two months after these Defendants filed their Motion to
Amend Answer, cannot operate to negate the Certificate of Good Faith
Plaintiff had previously filed or the allegations of comparative fault against
Dr. Adoff contained in these Defendants’ Answer and the Motion to Amend
Answer filed by these Defendants previously.”
As indicated, our Supreme Court in addressing the requirement of a
Certificate of Good Faith has consistently indicated that the use of the word
“shall” is mandatory. Tenn. Code Ann. §29-26-122(b) uses the word “shall”
in respect to the need for a defendant to file a certificate of good faith.
Additionally, subsection (b) specifically addresses the issue of comparative
fault in “an answer or amended answer”. The Defendants in this case are
correct, insofar as there was not a requirement to file a certificate of good
faith with their original answer or in the motion to amend the answer to the
original complaint because Dr. Adoff was a defendant and not a “no[n]-
party”.
However, it is equally clear that when the order was entered granting
the Plaintiff permission to file an Amended Complaint, the nature of the
proceedings changed. It is clear from the Amended Complaint that the
Plaintiff was only asserting allegations against Levan, Mosrie and Summit.
An “amended complaint”, complete without adoption or reference to the
original, supersedes and destroys the original as a pleading. On the other
hand, an “amendment” to a complaint merely modifies the complaint which
remains before the court as modified. McBurney v. Aldrich, 816 S.W.2d 30,
33 (Tenn. Ct. App. 1991) citing Louisville & N.R. Co. v. House, 56 S.W.
836 (Tenn. 1900). An amended complaint supersedes the original complaint,
rendering it of no legal effect, unless the amended complaint specifically
refers to or adopts the original.
Having reviewed the Amended Complaint filed pursuant to the Order
of June 24, 2019, this Court finds that this is a true amended complaint, and
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as such, supersedes and destroys the original pleading. There is no reference
or incorporation of the original complaint. At that point, Dr. Adoff is a non-
party.
Once the order was entered granting relief to file the Amended
Complaint, the motion to amend the answer to the original complaint became
moot. The Defendants had an obligation to file an answer to the Amended
Complaint which they did on July 11, 2019. There can be no doubt that the
Defendants were aware that Dr. Adoff was no longer a party to the action at
the time they filed the Answer to the Amended Complaint. The Amended
Complaint makes no reference to Dr. Adoff. Even if counsel did not receive
a copy of the Order dismissing Dr. Adoff, it is clear from the email
communications of July 8, 2019 that counsel for the named defendants was
aware that Dr. Adoff was being dismissed. When the Answer to the
Amended Complaint was filed on July 11, 2019, Tenn. Code Ann. § 29-26-
122(c) gave the Defendants thirty (30) days to file a certificate of good faith
in compliance with the same requirements that the Plaintiff must follow in
§29-26-122(a). Both must be filed on the form developed by administrative
office of the courts to effectuate the purpose of the statute. Tenn. Code Ann.
§ 29-26-122(d)(5). In this case, the Defendants did not file the required
certificate of good faith by August 11, 2019. The certificate of good faith is
mandatory and strict compliance is required. Myers v. AMISUB (SFH),
Inc., 382 S.W.3d 300, 308 (Tenn. 2012).
***
Although [Myers v. AMISUB (SFH), Inc., 382 S.W.3d 300 (Tenn.
2012), Sirbaugh v Vanderbilt University, 469 S.W.3d 46 (Tenn. Ct. App.
2014), and Dotson v. State, No. E2019-00325-COA-R9-CV, 2019 WL
6523164 (Tenn. Ct. App. Dec. 3, 2019)] address the plaintiff’s compliance
with a certificate of good faith, a reasonable interpretation of these cases and
other similar cases applying the requirements of Tenn. Code Ann. § 29-26-
122, clearly establish that the certificate of good faith must be filed, it must
be a separate document and it must contain the language in the statute.
Failure to comply with the directives of the statute is fatal. Section 29-26-
122(b) clearly requires . . . the Defendant to file a certificate of good faith
within thirty (30) days of filing an amended answer and asserting the fault of
a non-party. There is nothing in the statute from which one could infer a
legislative intent that this requirement would only apply to non-parties who
had never been parties to the litigation.
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While this Court recognizes the severity of the application insofar as
the Defendants’ comparative fault allegation may be stricken, the statute and
the case law make it clear that the Defendants were required to file a
certificate of good faith within thirty (30) days of filing their answer to the
amended complaint asserting the comparative fault of Dr. Adoff who was no
longer a party to the action. Defendants cannot rely on the certificate of good
faith filed by the Plaintiff or the disclosure of their expert witness because
the statute requires that the “defendant or defendant’s counsel shall file a
certificate of good faith” in the form required by the statute within thirty (30)
days of filing the answer to the amended complaint asserting the comparative
fault of a non-party.
(Internal footnote and citations omitted.)
Upon its determination that Defendants had not complied with Tennessee Code
Annotated § 29-26-122, the Trial Court then considered whether good cause was shown to
allow Defendants an extension of time to file their certificate of good faith. In its order,
the Trial Court recognized that Defendant had stated “no specific reasons” to support their
argument that good cause existed and presumed that Defendants’ argument was on the
basis that they believed no certificate of good faith was necessary. The Trial Court found
that Defendants had failed to demonstrate that good cause existed to support an extension
of time to file their certificate of good faith. Defendants subsequently filed a motion for
interlocutory appeal with the Trial Court, which was granted. Defendants thereafter filed
an application for permission to appeal to this Court, pursuant to Tennessee Rule of
Appellate Procedure 9, which was granted by this Court in December 2020.
Discussion
This Court granted Defendants’ Rule 9 application for permission to appeal,
identifying the following issues for appeal as certified by the Trial Court:
1. Whether the Defendants (who originally asserted comparative fault “against the
other defendants” in their original Answer to the Original Complaint) were
required to file a new certificate of good faith to support the allegations of
comparative fault against former party, Dr. Adoff, upon the filing of Plaintiff’s
Amended Complaint after Dr. Adoff had been dismissed, where Plaintiff
possessed a certificate of good faith supporting a cause of action against Dr.
Adoff which was attached to the original complaint.
2. Even if the Defendants were required to file their own certificate of good faith
as to Dr. Adoff within thirty (30) days of filing their Answer to the Amended
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Complaint, whether good cause existed for an extension of time for the
Defendants to file such certificate of good faith under the circumstances.
This appeal involves an issue concerning statutory construction. As our Supreme
Court has instructed:
Issues of statutory construction present questions of law that we review de
novo with no presumption of correctness. Martin v. Powers, 505 S.W.3d
512, 518 (Tenn. 2016). The primary goal of statutory interpretation is to
carry out legislative intent without expanding or restricting the intended
scope of the statute. State v. Smith, 484 S.W.3d 393, 403 (Tenn. 2016)
(citations omitted). In determining legislative intent, we first must look to
the text of the statute and give the words of the statute “their natural and
ordinary meaning in the context in which they appear and in light of the
statute’s general purpose.” Mills v. Fulmarque, Inc., 360 S.W.3d 362, 368
(Tenn. 2012) (citations omitted). When a statute’s language is clear and
unambiguous, we enforce the statute as written; we need not consider other
sources of information. Frazier v. State, 495 S.W.3d 246, 249 (Tenn. 2016).
We apply the plain meaning of a statute’s words in normal and accepted
usage without a forced interpretation. Baker v. State, 417 S.W.3d 428, 433
(Tenn. 2013). We do not alter or amend statutes or substitute our policy
judgment for that of the Legislature. Armbrister v. Armbrister, 414 S.W.3d
685, 704 (Tenn. 2013).
Coleman v. Olson, 551 S.W.3d 686, 694 (Tenn. 2018).
The statute at issue that we must interpret is Tennessee Code Annotated § 29-26-
122, which provides as follows in pertinent part:
(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 . . . .
(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
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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 (2012).
On appeal, Defendants argue that they were not required to file a certificate of good
faith concerning Dr. Spencer Adoff because Plaintiff already had filed a certificate of good
faith that included Dr. Adoff with the initial complaint and Defendants had maintained
allegations of comparative fault against Dr. Adoff throughout the proceedings.2 According
to Defendants, the allegations they had made against Dr. Adoff were “nearly identical” to
the allegations made by Plaintiff in their original complaint. Defendants therefore argue
that there were “not any new claims against a new non-party health care provider that
would require the filing of an additional certificate of good faith.” We, as did the Trial
Court, disagree with Defendants’ argument that they were not required to file a certificate
of good faith with their answer to the amended complaint when it included claims of
comparative fault against a medical professional who was no longer a party to the action.
Upon our analysis of Tennessee Code Annotated § 29-26-122, we determine that
the statute is clear and unambiguous. Pursuant to subsection (b), a defendant must file a
certificate of good faith within thirty days of filing an answer if he or she alleges that “a
non-party” is at fault for the plaintiff’s injuries or death and an expert witness would be
required to prove such fault. We find no ambiguity in that requirement or the term “non-
party.” Although not statutorily defined, a “non-party” is simply an individual or entity
that is not a party to the action. See Ridings v. Ralph M. Parsons Co., 914 S.W.2d 79, 81
(Tenn. 1996) (“The designation ‘nonparty’ . . . is not a term of art; it means ‘not a party.’”).
At least as to a plaintiff’s compliance, Tennessee Courts have held that the
requirement to file a certificate of good faith, pursuant to Tennessee Code Annotated § 29-
26-122, is mandatory and requires strict compliance, not substantial compliance. See
Myers v. AMISUB (SFH), Inc., 382 S.W.3d 300, 310 (Tenn. 2012) (“Because these
requirements are mandatory, they are not subject to satisfaction by substantial
compliance.”); Sirbaugh v. Vanderbilt Univ., 469 S.W.3d 46, 51 (Tenn. Ct. App. 2014)
(“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.”). Unless a plaintiff waives
the requirement, it is also mandatory for a defendant to file a certificate of good faith when
2
Defendants also alleged comparative fault concerning the actions of Decedent’s mother, Ms. Childress;
however, Defendants have stated in their brief that those allegations of fault are not at issue in this appeal.
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making comparative fault allegations against a non-party if expert testimony will be
required. See Tenn. Code Ann. § 29-26-122(b) (stating that a defendant making
comparative fault allegations against a non-party “shall file a certificate of good faith”
within thirty days (emphasis added)). Therefore, we hold that a defendant, as does a
plaintiff, must strictly comply with the certificate of good faith requirement in Tennessee
Code Annotated § 29-26-122 when making comparative fault allegations against a non-
party.
Defendants’ argument is essentially that Dr. Adoff was not a “non-party” because
Plaintiff had made allegations against him and filed a certificate of good faith concerning
Dr. Adoff with the original complaint. However, at the time the amended complaint was
filed, Dr. Adoff was not a party to the action. Defendants agreed to allowing Plaintiff to
file the amended complaint and were provided notice of the amended complaint, which
removed Dr. Adoff as a party to the action. When filing their answer to the amended
complaint, Defendants clearly had notice that Dr. Adoff was no longer a party to the action.
The amended complaint, the specific document to which Defendants were answering, had
removed Dr. Adoff as a party to the action.
When Dr. Adoff was removed as a party in the amended complaint, Plaintiff not
only no longer had any burden of proving liability on the part of Dr. Adoff, it would be
against Plaintiff’s interest to do so. At the time Defendants filed their answer to the
amended complaint alleging comparative fault, the sole burden of establishing any fault by
Dr. Adoff, a non-party, was with Defendants. In order to strictly comply with Tennessee
Code Annotated § 29-26-122, Defendants had to file a certificate of good faith following
their answer to the amended complaint concerning their allegations against Dr. Adoff
within thirty days. They did not do so.
Subsection (c) provides the consequences for a defendants’ failure to comply with
subsection (b) and states that unless the plaintiff waives compliance, a defendant’s
allegations of comparative fault are subject to being stricken with prejudice if a motion is
filed. See Tenn. Code Ann. § 29-26-122 (2012). If such allegations are stricken, the
defendant who failed to comply may not assert those allegations of fault to be considered
by the court or a jury. Id. We recognize the harsh results stemming from section 29-26-
122, but the statutory requirements for a defendant are as clear as they are for a plaintiff.
Just as these healthcare liability statutes often have been a technical trap for plaintiffs, these
harsh results also apply to defendants who fail to comply with the mandatory requirements
of Tennessee Code Annotated § 29-26-122. In this case, we find and hold, as did the Trial
Court, that Defendants did not comply with the requirements of Tennessee Code Annotated
§ 29-26-122 by filing a certificate of good faith to support their comparative fault
allegations. Therefore, Defendants’ comparative fault allegations were subject to being
stricken with Plaintiff’s motion to strike.
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Defendants further argue that even if they were required to file their own certificate
of good faith with their answer to the amended complaint, good cause existed for an
extension of time to allow them to file such certificate due to the “reasonable confusion in
the law.” Tennessee Code Annotated § 29-26-122(c) allows the trial court to grant an
extension of time within which the defendant may file a certificate of good faith if, inter
alia, good cause is shown by the defendant. However, as the Trial Court noted in its
judgment, Defendants in their response in opposition to the motion to strike only generally
stated the alternative request that the Trial Court should permit the requested extension of
time. Defendants provided no reasoning in support of their argument that good cause
existed to extend the time for which they could file a certificate of good faith. No argument
was presented to the Trial Court concerning an existing “confusion in the law” that is now
being argued on appeal. Even if this specific argument had been raised before the Trial
Court, we find no merit to Defendants’ argument that they should be allowed an extension
of time to file their certificate of good faith due to “confusion in the law.” As previously
addressed in this Opinion, the statute and resulting case law are clear that a certificate of
good faith is required by the defendant when alleging the comparative fault of a medical
professional who is not a party to the action if expert testimony would be required. We
agree with the Trial Court that Defendants had not established that good cause existed
sufficient to grant an extension of time to Defendants to file their certificate of good faith.
Therefore, Defendants’ failure to comply with Tennessee Code Annotated § 29-26-
122 made their comparative fault allegations subject to being stricken with prejudice,
pursuant to subsection (c). Plaintiff did not waive this statutory requirement and no good
cause existed to extend Defendants’ time for filing a certificate of good faith. Upon motion
to strike by Plaintiff, the Trial Court ordered that Defendants’ allegations in their answer
of comparative fault against Dr. Spencer Adoff were to be stricken. Pursuant to Tennessee
Code Annotated § 29-26-122(c), Defendants are prohibited from asserting comparative
fault allegations against the non-party, Dr. Spencer Adoff. We find no error in the Trial
Court’s decision to strike Defendants’ allegations of comparative fault due to
noncompliance with Tennessee Code Annotated § 29-26-122 or its ruling that no good
cause existed to allow an extension of time to comply with the statutory requirements. We,
therefore, affirm the Trial Court’s judgment in its entirety.
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Conclusion
Based on the foregoing, the Trial Court’s judgment is affirmed in all respects. We
remand for further proceedings consistent with this opinion. Costs on appeal are assessed
to the appellants, Sarah J. Levan and Summit Medical Group, PLLC.
_________________________________
D. MICHAEL SWINEY, CHIEF JUDGE
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