Estate of Jennifer Diane Vickers v. Diversicare Leasing Corporation ( 2022 )

06/13/2022
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
April 5, 2022 Session
ESTATE OF JENNIFER DIANE VICKERS v. DIVERSICARE LEASING
CORPORATION ET AL.
Appeal from the Circuit Court for Rutherford County
No. 73909 Bonita Jo Atwood, Judge
___________________________________
No. M2021-00894-COA-R3-CV
___________________________________
A nursing home resident commenced this health care liability action after she had 18 teeth
extracted, after which she suffered excessive bleeding. Before suing, the plaintiff’s
daughter, acting as her mother’s attorney in fact, provided each prospective defendant with
a form that purported to authorize the release of the plaintiff’s health information as
required by Tennessee Code Annotated § 29-26-121(a)(1). Four months later, the plaintiff
filed her complaint and a certificate of good faith as required by § 29-26-122(a). The
defendants responded by moving to dismiss the complaint, arguing that the pre-suit
authorizations were invalid because the daughter lacked the authority to make “health care
decisions” for the plaintiff. The trial court denied the motions, finding the general power
of attorney authorized the daughter to release the plaintiff’s medical records. After the
plaintiff filed an amended complaint to add a claim for lack of informed consent, the
defendants moved to dismiss all claims set forth in the amended complaint based on the
plaintiff’s failure to file a new certificate of good faith. The plaintiff argued that a new
certificate was unnecessary; nevertheless, she moved for an extension of time to comply.
Following a hearing, the court found that a new certificate of good faith was required by
§ 29-26-122(a) because the amended complaint asserted a new claim. The court also denied
the plaintiff’s motion for an extension of time to comply on the ground that the plaintiff
failed to establish “extraordinary cause” to justify an extension. Based on these findings,
the court granted the defendants’ motions to dismiss all claims. This appeal followed. We
agree that a new certificate of good faith was required; however, we find that the trial court
applied an incorrect legal standard to deny the motion for an extension of time in which to
comply. This is because the standard applicable to a motion for an extension of time to
comply is “good cause,” not “extraordinary cause,” and good cause is a less exacting
standard than extraordinary cause. See Stovall v. UHS Lakeside, LLC, No. W2013-01504-
COA-R9-CV, 2014 WL 2155345, at *12 (Tenn. Ct. App. Apr. 22, 2014) (citations
omitted), overruled on other grounds by Davis ex rel. Davis v. Ibach, 465 S.W.3d 570(Tenn. 2015). Accordingly, this issue, along with the trial court’s decision to dismiss the
entire amended complaint, are vacated and remanded for further consideration by the trial
court. As a result, we affirm in part, vacate in part, and remand for further proceedings
consistent with this opinion.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed in
Part, Vacated in Part, and Remanded
FRANK G. CLEMENT JR., P.J., M.S., delivered the opinion of the Court, in which ANDY D.
BENNETT and W. NEAL MCBRAYER, JJ., joined.
Luvell L. Glanton, Nashville, Tennessee, for the appellant, Estate of Jennifer Diane
Vickers.
Joshua C. Cumby and F. Laurens Brock, Nashville, Tennessee, and Donna L. Boyce,
Memphis, Tennessee, for the appellee, Diversicare Leasing Corporation.
David E. Harvey, Nashville, Tennessee, for the appellee, OneCare Dental Solutions, LLC.
Kara G. Bidstrup, Karl M. Braun, and Rod C. Watson, Nashville, Tennessee, for the
appellee, Paul H. Straughn.
OPINION
FACTS AND PROCEDURAL BACKGROUND
In October 2016, Jennifer Diane Vickers (“Plaintiff”) received emergency dental
services from Dr. Paul Straughn at a nursing home operated by Diversicare Leasing Corp.
d/b/a Diversicare of Smyrna. Unbeknownst to Dr. Straughn, Plaintiff was on blood thinners
at the time of the procedure. After Dr. Straughn extracted 18 teeth, Plaintiff began to bleed
heavily and was taken to a nearby emergency room. She was released the next day.
Eleven months later, Plaintiff sent pre-suit notice letters to Dr. Straughn,
Diversicare, and the company that arranged for Dr. Straughn’s visit, OneCare Dental
Solutions, LLC (collectively, “Defendants”). Each letter included several forms that
purported to authorize the release of Plaintiff’s medical records to and from the other
defendants. The forms were signed by Plaintiff’s daughter, Constance Lynn Bennett, as
Plaintiff’s attorney in fact. Plaintiff also provided each defendant with a copy of Ms.
Bennett’s general power of attorney.
Four months later, Plaintiff commenced this action by filing a complaint in the
Rutherford County Circuit Court.1 The complaint asserted negligence claims against all
1
Plaintiff died of causes unrelated to this action on September 19, 2018. Shortly thereafter, the
Estate of Jennifer Diane Vickers was substituted as the plaintiff.
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three defendants, and it asserted additional claims against Diversicare for breach of
contract, breach of fiduciary duty, and violation of the Tennessee Adult Protection Act,
Tennessee Code Annotated §§ 71-6-101 to -126. Along with the complaint, Plaintiff’s
attorney filed a certificate of good faith in which he stated that he consulted one or more
experts who provided signed written statements confirming that there was “a good faith
basis to maintain the action consistent with the requirements of Tennessee Code Annotated
§ 29-26-115.”
Defendants then moved to dismiss the complaint based on Plaintiff’s alleged failure
to comply with Tennessee Code Annotated § 29-26-121(a)(1), which requires plaintiffs to
provide potential defendants with medical record release forms that comply with the Health
Insurance Portability and Accountability Act of 1998 (“HIPAA”). Defendants argued that
the forms they received were invalid because they were signed by Plaintiff’s daughter, Ms.
Bennett, and Ms. Bennett’s general power of attorney did not include the authority to make
“health care decisions” for Plaintiff unless Plaintiff was incapacitated. The trial court
denied the motions, finding that the power of attorney authorized Ms. Bennett to release
Plaintiff’s medical records.
After the parties conducted discovery, Defendants moved for summary judgment
based on Plaintiff’s lack of expert proof. In response, Plaintiff produced the affidavit of Dr.
Dean DeLuke, DDS, who stated that he was familiar with the applicable standards of care
and believed that Dr. Straughn and OneCare’s conduct fell below those standards. Dr.
DeLuke also believed that Dr. Straughn and OneCare’s acts and omissions proximately
caused Plaintiff’s injuries. In particular, Dr. DeLuke’s opinion was that Dr. Straughn
deviated from the acceptable standards by failing to inform Plaintiff about the risk of
extracting her teeth while she was on blood thinners.
Plaintiff then amended her complaint to add a claim for lack of informed consent
and restate all negligence claims against each defendant as well as claims for breach of
contract and breach of fiduciary duty against Diversicare.2 Plaintiff did not, however, file
a new certificate of good faith with the amended complaint. Instead, she incorporated by
reference the certificate attached to the original complaint:
8. Pursuant to T.C.A. § 29-26-122, Plaintiff’s counsel has previously
attached a Certificate of Good Faith to the Complaint. (See attached
Exhibit “2”).3
2
However, Plaintiff did not reassert her claim for violation of the Tennessee Adult Protection Act.
3
Plaintiff did not attach “Exhibit 2” to the amended complaint.
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Defendants then moved to dismiss the amended complaint, asserting that § 29-26-
122(a) required Plaintiff to file a new certificate. In response, Plaintiff maintained that a
new certificate was unnecessary because she had provided Defendants with an assurance
that there was a good faith basis for maintaining the action by filing the original certificate
of good faith. Plaintiff also argued that she had substantially complied with § 29-26-122(a)
because Dr. DeLuke’s affidavit provided Defendants with notice that there was a good faith
basis for her new informed consent claim. In the alternative, Plaintiff moved for an
extension of time to file a new certificate under Tennessee Code Annotated § 29-26-122(c).
Plaintiff also argued that there was “good cause” for granting the extension because it was
unclear whether § 29-26-122(a) applied to amended complaints, and Defendants knew that
there was a good faith basis for every claim asserted in the amended complaint.
At the hearing on Defendants’ motions to dismiss, the trial court held that § 29-26-
122(a) required Plaintiff to file a new certificate of good faith because her amended
complaint added a new “cause of action.” The court also held that Plaintiff could not rely
on Dr. DeLuke’s affidavit because § 29-16-122(a) requires strict compliance. The court
then denied Plaintiff’s motion for an extension of time, reasoning that Plaintiff failed to
show “extraordinary cause” for her failure to comply.
The trial court also asked the parties whether the court had to dismiss the entire
complaint or just the new claim for lack of informed consent. Plaintiff contended that
dismissal of only the new claim was necessary because the original certificate of good faith
supported the other claims. But Defendants argued that dismissal of the entire amended
complaint was necessary because the amended complaint superseded and destroyed the
original. The trial court agreed with Defendants and announced that it was dismissing the
entire amended complaint.
Plaintiff then filed a motion to alter or amend the judgment under Tennessee Rule
of Civil Procedure 59.04, which the trial court denied. This appeal followed.
ISSUES
Plaintiff raises five issues on appeal:
1. Was the trial court correct in ruling that every amended complaint in a
health care liability action needs to be accompanied by a new certificate
of good faith even when all of the claims in the original complaint have
been brought forward into the amended complaint except a claim of lack
of informed consent which was added to the amended complaint?
2. Does a filing of an amended complaint destroy the original complaint
even when the amended complaint makes a specific reference and
incorporates by reference the certificate of good faith in the original
complaint?
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3. Did the trial court err by dismissing the entire amended complaint rather
than just the lack of informed consent claim where there was already a
good faith certificate on file supporting the allegations raised in the
amended complaint?
4. Did the trial court err by ruling that a qualified expert’s affidavit, filed in
the record indicating that the defendant dentist failed to meet the standard
of care, cannot constitute substantial compliance with respect to the good
faith certificate requirement as provided in Hinkle v. Kindred Hosp., No.
M2010-02499-COA-R3-CV, 2012 WL 3799215 (Tenn. Ct. App. Aug.
31, 2012)?
5. Did the trial court err by ruling that a reliance on a reasonable
interpretation (but incorrect) of the law could not permit a showing of
good cause sufficient to allow an extension of time to file a good faith
certificate which basis for good cause had been permitted in Stovall v.
UHS Lakeside, LLC, No. W2013-01504-COA-R9-CV, 2014 WL
2155345 (Tenn. Ct. App. Apr. 22, 2014)?
Defendants raise one other issue on appeal:
Whether the trial court erred in denying Defendants’ original motions to
dismiss based upon Plaintiff’s failure to provide HIPAA compliant medical
authorizations and failure to comply with the pre-suit notice requirements.
STANDARD OF REVIEW
The Tennessee Health Care Liability Act (“THCLA”), Tennessee Code Annotated
§§ 29-26-101 to -122, “imposes certain procedural requirements on a party advancing a
health care liability claim in Tennessee.” Lacy v. Mitchell, 541 S.W.3d 55, 59 (Tenn. Ct.
App. 2016) (footnote omitted). “A motion to dismiss under Rule 12.02(6) is the appropriate
way to challenge compliance with the Act’s procedural requirements.” Cooper v. Mandy,
639 S.W.3d 29, 33 (Tenn. 2022). We review the trial court’s decision on a motion to
dismiss de novo with no presumption of correctness. See id.A trial court’s decision to enlarge the time for filing a certificate of good faith under
§ 29-26-122(c) is discretionary, Brandon v. Williamson Med. Ctr., 343 S.W.3d 784, 789
(Tenn. Ct. App. 2010) (citations omitted), and we review discretionary decisions under the
“abuse of discretion” standard, see Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn.
2010). The abuse of discretion standard does not permit reviewing courts to substitute their
discretion for that of the trial court. Id. Nevertheless, the abuse of discretion standard of
review does not immunize a lower court’s decision from meaningful appellate scrutiny:
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Discretionary decisions must take the applicable law and the relevant facts
into account. An abuse of discretion occurs when a court strays beyond the
applicable legal standards or when it fails to properly consider the factors
customarily used to guide the particular discretionary decision. A court
abuses its discretion when it causes an injustice to the party challenging the
decision by (1) applying an incorrect legal standard, (2) reaching an illogical
or unreasonable decision, or (3) basing its decision on a clearly erroneous
assessment of the evidence.
Id.When “[a]pplying this framework, we look first at whether the factual basis for the
trial court’s decision is supported by evidence in the record.” Harmon v. Hickman Cmty.
Healthcare Servs., Inc., 594 S.W.3d 297, 306 (Tenn. 2020). We then examine whether the
trial court identified and applied the correct legal principles relevant to its decision. See id.Finally, we look at “whether the [trial] court’s decision was in the range of acceptable
alternative dispositions.” Id.Thus, we will review the trial court’s decision to deny Plaintiff’s motion for an
extension of time to determine, where applicable, whether there is a factual basis for the
decision in the record, whether the court correctly identified and applied the correct legal
principles, and whether the decision is within the range of acceptable alternative
dispositions. See Lee Med., Inc., 312 S.W.3d at 524.
ANALYSIS
I. HIPAA COMPLIANT MEDICAL RELEASES
Defendants contend that the trial court erred in denying their original motions to
dismiss based on Plaintiff’s alleged failure to provide HIPAA compliant medical
authorizations as required by Tennessee Code Annotated § 29-26-121(a)(1).
Section 29-26-121(a)(1) requires persons asserting a potential claim for health care
liability to provide each defendant health care provider with pre-suit notice. Each notice
must include, inter alia, “[a] HIPAA compliant medical authorization permitting the
provider receiving the notice to obtain complete medical records from each other provider
being sent a notice.” Id. § 29-26-121(a)(2). To comply with HIPAA, authorization forms
must contain six core elements, including the “[s]ignature of the individual and date,” and
“[i]f the authorization is signed by a personal representative of the individual, a description
of such representative’s authority to act for the individual.” 45 C.F.R. § 164.508(c)(1)(vi).
The authorization forms that Plaintiff sent to Defendants were signed and dated by
Ms. Bennett as “Power of Attorney for Jennifer Diane Vickers.” Nonetheless, Defendants
maintain that the authorization forms were invalid because Ms. Bennett’s authority to make
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“health care decisions” depended on Plaintiff’s decisional capacity. Defendants rely on
paragraph 3 of Ms. Bennett’s general power of attorney, which provides:
3. Designation of Health Care Surrogate. Without limiting this general
power of attorney, I designate Constance Lynn Bennett as my health care
surrogate to make any health care decisions for me when I no longer have
decisional capacity. . . . I grant my health care surrogates the right to
access all my health and medical records and to also access any billing
related to my health records. With this appointment I waive my right to
privacy and confidentiality pursuant to HIPAA.
It is undisputed that Plaintiff still had decisional capacity when Ms. Bennett signed
the authorization forms. Thus, Ms. Bennett did not have the power to make “health care
decisions” for Plaintiff. Nonetheless, we find Ms. Bennett did not need the power to make
“health care decisions” to authorize the release of Plaintiff’s medical records to commence
a health care liability action.
Like other written instruments, powers of attorney “should be interpreted according
to their plain terms.” Tennessee Farmers Life Reassurance Co. v. Rose, 239 S.W.3d 743,
750 (Tenn. 2007). And absent proof to the contrary, “[p]owers of attorney are to be
construed . . . in accordance with the prevailing laws relating to the act authorized.”
Owens v. Nat’l Health Corp., 263 S.W.3d 876, 884 (Tenn. 2007) (quoting 3 Am. Jur. 2d
Agency § 27). Two statutes relate to Ms. Bennett’s authority to release medical records:
the Uniform Durable Power of Attorney Act, Tennessee Code Annotated §§ 34-6-101 to -
112, and the Tennessee Durable Power of Attorney for Health Care Act, Tennessee Code
Annotated §§ 34-6-201 to -218. These acts clearly distinguish between the authority to
make health care decisions and the authority to release medical records.
The Tennessee Durable Power of Attorney for Health Care Act defines “[h]ealth
care decision” as “consent, refusal of consent or withdrawal of consent to health care.”
Tenn. Code Ann. § 34-6-201(3). The Act defines “[h]ealth care” as “any care, treatment,
service or procedure to maintain, diagnose or treat an individual’s physical or mental
condition, and includes medical care as defined in § 32-11-103.”4 Id. § 34-6-201(2). The
Act states that attorneys in fact who are authorized to make health care decisions have the
right to receive, review, and disclose medical records:
Except to the extent the right is limited by the durable power of attorney for
health care, an attorney in fact designated to make health care decisions under
the durable power of attorney has the same right as the principal to receive
4
Tennessee Code Annotated § 32-11-103(5) defines “medical care” as including “any procedure
or treatment rendered by a physician or health care provider designed to diagnose, assess or treat a disease,
illness or injury.”
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information regarding the proposed health care, to receive and review
medical records, and to consent to the disclosure of medical records.
Id. § 34-6-206.
Similarly, the Uniform Durable Power of Attorney Act identifies various powers
that may be incorporated into a durable power of attorney, including the authority to
“execute any releases or other documents that may be required in order to obtain [medical
and hospital records], and disclose that information to persons, organizations, firms or
corporations the principal’s attorney in fact deems appropriate.” Tenn. Code Ann. § 34-6-
109(21). But the Act also states that this power “shall not be construed to vest an attorney
in fact with, or authorize an attorney in fact to . . . [m]ake any decisions regarding medical
treatments or health care.” Id. § 34-6-108(c), (c)(9). Accordingly, both the Tennessee
Durable Power of Attorney for Health Care Act and the Uniform Durable Power of
Attorney Act establish that disclosing someone’s health information is different from
making health care decisions on their behalf.
Here, Ms. Bennett’s authority to release Plaintiff’s medical records derived from the
authority granted to her under the general power of attorney to take all necessary actions
to commence and prosecute legal actions on Plaintiff’s behalf. The power of attorney
provided in relevant part:
I, Jennifer Diane Vickers, . . . grant a general power of attorney, to Constance
Lynn Bennett . . . and appoint said individual[] as my attorney-in-fact to act
in my name, place and stead in any way which I myself could do if I were
personally present, including but not limited to the following:
. . .
e. To commence, prosecute, compromise, settle, adjust and/or
discontinue any claims, suits, actions or legal proceedings for the
recovery of sums of money or property now or hereafter due or to
become due, or held by or belonging to me.
. . .
m. To do and perform every act and thing necessary or proper in the
exercise of any of the rights and powers herein granted as fully as I
might or could do if personally present, with full power of substitution
or revocation, hereby ratifying and confirming all that my attorney-
in-fact, or his/her substitute or substitutes, shall lawfully do or cause
to be done by virtue of the authority granted herein.
Significantly, a plaintiff cannot prosecute a health care liability action without
authorizing the defendants to obtain and review the plaintiff’s relevant medical records.
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See Stevens ex rel. Stevens v. Hickman Cmty. Health Care Servs., Inc., 418 S.W.3d 547,
555 (Tenn. 2013). Thus, if we were to construe Ms. Bennett’s power of attorney to exclude
the power to authorize the release of medical records in a pre-suit notice under Tennessee
Code Annotated § 29-26-121(a)(1), we would effectively be rewriting the power of
attorney from authorizing Ms. Bennett to prosecute “any” legal actions on Plaintiff’s behalf
to authorizing Ms. Bennet to prosecute “most” legal actions. See Tennessee Farmers, 239
S.W.3d at 750–51 (finding attorney in fact had authority to change beneficiary designation
on life insurance policy when the power of attorney authorized her “to transact all insurance
business” and “take any other action necessary or proper in this regard”).
Because Ms. Bennett was acting within the scope of her authority under the general
power of attorney when she executed the HIPAA authorization forms, we conclude that
Plaintiff provided Defendants with valid authorizations to access and use her medical
records. As a consequence, Plaintiff complied with Tennessee Code Annotated § 29-26-
121(a). Therefore, we affirm the trial court’s decision to deny Defendants’ motions to
dismiss on this ground.
II. CERTIFICATE OF GOOD FAITH CONCERNING NEW CLAIMS
Plaintiff contends the trial court erred when it ruled that a certificate of good faith
must be attached to every amended complaint in which a new claim is added. She argues
that Tennessee Code Annotated § 29-26-122(a) requires a certificate of good faith with
amended complaints only when a defendant has not already received a certificate in the
same action. Defendants contend that a certificate of good faith must be filed with any
amended complaint that asserts new allegations.
Section 29-26-122(a) requires plaintiffs to file a certificate of good faith “with the
complaint” in “any health care liability action in which expert testimony is required by
§ 29-26-115.” The THCLA defines “health care liability action” as “any civil
action . . . alleging that a health care provider or providers have caused an injury related to
the provision of, or failure to provide, health care services to a person, regardless of the
theory of liability on which the action is based.” Tenn. Code Ann. § 29-26-101(a)(1).
Expert testimony is necessary in a health care liability action if the alleged misconduct
“involved the exercise of medical judgment or skill.” Jackson v. Burrell, 602 S.W.3d 340,
350 (Tenn. 2020). Thus, in any civil action alleging that a health care provider’s acts or
omissions involving the exercise of medical judgment or skill caused an injury, a certificate
of good faith must be filed with “the complaint.” The statute is silent, however, on whether
this requirement applies to amended complaints.
The plain and ordinary legal definition of “complaint” is “[t]he initial pleading that
starts a civil action and states the basis for the court’s jurisdiction, the basis for the
plaintiff’s claim, and the demand for relief.” West v. AMISUB (SFH), Inc., No. W2012-
00069-COA-R3-CV, 2013 WL 1183074, at *5 (Tenn. Ct. App. Mar. 21, 2013) (quoting
Black’s Law Dictionary (9th ed. 2009)). Hence, it is well established that a plaintiff must
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file a certificate of good when commencing a new health care liability action. See Myers v.
AMISUB (SFH), Inc., 382 S.W.3d 300, 309–10 (Tenn. 2012) (holding that plaintiff had to
file a certificate with complaint filed under savings statute because it “commenced” a new
action).
That said, Tennessee caselaw establishes that the certificate of good faith
requirement is not strictly limited to the pleading that commences a legal action, at least
where the initial pleading did not assert health care liability claims. See, e.g., Lacy v. HCA
Health Serv. of TN, Inc., No. M2016-01027-COA-R3-CV, 2017 WL 1944351, at *2 (Tenn.
Ct. App. May 10, 2017) (holding that plaintiff had to file a certificate of good faith with
amended complaint that alleged health care liability claims for the first time). Our caselaw
also establishes that the certificate of good faith requirement applies to amended pleadings
that add new defendants to existing health care liability claims. See, e.g., Sirbaugh v.
Vanderbilt Univ., 469 S.W.3d 46 (Tenn. Ct. App. 2014) (holding that plaintiff “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” (citation omitted)).
Neither party, however, has provided us with any authority that addresses whether a
certificate is required with amended pleadings that assert new health care liability claims
against existing defendants in an existing health care liability action, and we have found
none. As a result, resolving this issue requires us to interpret the meaning of Tennessee
Code Annotated § 29-26-122.
Several well-established canons of construction guide our interpretation of § 29-26-
122. Because §§ 29-26-121 and -122 were enacted and amended simultaneously, “the rule
of in pari materia ‘is of peculiar force’” in their interpretation. Myers, 382 S.W.3d at 311
(quoting Hill v. Roberts, 217 S.W. 826, 828 (Tenn. 1920)). “[S]tatutes ‘in pari
materia’ . . . are to be construed together, and the construction of one such statute, if
doubtful, may be aided by considering the words and legislative intent indicated by the
language of another statute.” Graham v. Caples, 325 S.W.3d 578, 582 (Tenn. 2010)
(quoting Wilson v. Johnson Cnty., 879 S.W.2d 807, 809 (Tenn. 1994)).
Further, because § 29-26-122 creates a procedural requirement, see Ellithorpe v.
Weismark, 479 S.W.3d 818, 825 (Tenn. 2015), its language should “be liberally construed
in order to give effect to the legislative intent,” Stiner v. Powells Val. Hardware Co., 75
S.W.2d 406, 407 (Tenn. 1934). Liberal construction “allows courts to more broadly and
expansively interpret the concepts and provisions within [a statute’s] text,” Northland Ins.
Co. v. State, 33 S.W.3d 727, 730 (Tenn. 2000), but it “does not authorize the amendment,
alteration or extension of [a statute’s] provisions beyond [its] obvious meaning,” Stewart
v. State, 33 S.W.3d 785, 791 (Tenn. 2000) (quoting Pollard v. Knox Cnty., 886 S.W.2d
759, 760 (Tenn. 1994)).
Tennessee Code Annotated § 29-26-122 provides in relevant part:
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(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. . . . 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) (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.
Tenn. Code Ann. § 29-26-122(a).
Plaintiff argues that a certificate of good faith is not required with amended
complaints that add claims against existing defendants because § 29-26-122(a) only
requires “a good faith basis to maintain the action,” not a good faith basis to maintain
every claim. Thus, under Plaintiff’s interpretation, once a plaintiff has assured the
defendant that the lawsuit has a good faith basis, the statute is satisfied whether or not the
plaintiff amends or adds claims.
On the other hand, Defendants point out that § 29-26-122(a) requires the certificate
of good faith to be based on an expert’s belief that “there is a good faith basis to maintain
the action consistent with the requirements in § 29-26-115.” Section 29-26-115(a)
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provides the essential elements that a plaintiff must prove to maintain a health care liability
claim:
(a) In a health care liability action, the claimant shall have the burden of
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). Thus, Defendants argue that a certificate of good faith
implies that an expert reviewed the complaint’s specific allegations and believes those
allegations satisfy each element in § 29-26-115 for each claim being asserted. Ergo, under
Defendants’ interpretation, a new certificate is necessary if the allegations change.
After considering the plain language of § 29-26-122, we find that each party has
offered a reasonable interpretation of the statute. Section 29-26-122(a) requires a good faith
basis for “the action,” not “the claims.” Section 29-26-121 uses the word “action” to refer
to the lawsuit and “claim” to refer to the allegations. See id. § 29-26-121(c) (“In no event
shall this section operate to shorten or otherwise extend the statutes of limitations or repose
applicable to any action asserting a claim for health care liability . . . .”); see also Bryan
A. Garner, Garner’s Dictionary of Legal Usage 862 (3d ed. 2011) (“[T]he terms action
and suit are interchangeable.”). If the legislature intended for an expert’s statement to be
based on a belief that there were good faith grounds for each claim, the legislature could
have said so. Kampmeyer v. State, 639 S.W.3d 21, 26 (Tenn. 2022) (“A statute should be
read naturally and reasonably, with the presumption that the legislature says what it means
and means what it says.”).
Nevertheless, by requiring “a good faith basis to maintain the action consistent with
the requirements of § 29-26-115,” the language of § 29-26-122(a) implies that “the
plaintiff has consulted with at least one qualified expert who reviewed the claims and
believes the defendant deviated from the applicable standard of care and that the deviation
proximately caused the plaintiff’s injury.” Est. of Blankenship v. Bradley Healthcare &
Rehab. Ctr., No. E2021-00714-COA-R10-CV, 2022 WL 951256, at *5 (Tenn. Ct. App.
Mar. 30, 2022) (emphasis added); see Gilbert v. State, No. E2021-00881-COA-R9-CV,
2022 WL 1117453, at *6 (Tenn. Ct. App. Apr. 14, 2022) (“Because section 29-26-122
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requires certification of a basis for the defendant-specific elements established in section
29-26-115 . . . section 29-26-122 incorporates and requires section 29-26-115’s specificity
as to each defendant.”); Ledford ex rel. Rodriguez v. State, No. E2019-00480-COA-R3-
CV, 2020 WL 1686377, at *4 (Tenn. Ct. App. Apr. 7, 2020) (“The certificate of good faith
must certify that an expert has reviewed the alleged facts and claims specific to a particular
defendant and that the expert believes there is a good faith basis for maintaining a claim
against that defendant.” (citation omitted).
Construing the language of § 29-26-122 liberally to give effect to the legislative
intent, Stiner, 75 S.W.2d at 407, we agree with Defendants’ interpretation of the statute.
The legislature enacted § 29-26-122 with the “objective of reducing and stabilizing health
costs and protecting the general public.” Jackson v. HCA Health Servs. of Tennessee, Inc.,
383 S.W.3d 497, 505 (Tenn. Ct. App. 2012). The legislature believed “that as liability costs
increase, so does the cost of health care and the practice of ‘defensive medicine,’ spawned
by the fear of costly legal actions, may lead to a lower quality of health care in general.”
Id. “The certificate of good faith filing requirement was included in the Act to ensure that
only meritorious medical malpractice claims are filed.” Crawford v. Kavanaugh, No.
E2011-00696-COA-R3-CV, 2011 WL 5829602, at *5 (Tenn. Ct. App. Nov. 21, 2011)
(citing Howell v. Claiborne & Hughes Health Ctr., No. M2009-01683-COA-R3-CV, 2010
WL 2539651, at *16 (Tenn. Ct. App. June 24, 2010)). The certificate of good faith
requirement accomplishes this goal by “eliminat[ing] lawsuits where the claims have not
been vetted by an expert.” Hinkle, 2012 WL 3799215, at *15. The purpose of a certificate
of good faith is still implicated when a party amends a complaint to add new claims against
existing defendants.
In summary, when Plaintiff filed her initial complaint, her attorney certified that he
consulted at least one expert and obtained a signed, written statement confirming a good
faith basis for maintaining the action consistent with the requirements in § 29-26-115. In
doing so, Plaintiff’s attorney was certifying that at least one expert reviewed the specific
allegations in each claim and believed those allegations were sufficient to meet the
requirements. See Est. of Blankenship, 2022 WL 951256, at *5. Accordingly, when
Plaintiff learned new information during discovery that revealed additional grounds for
liability, Plaintiff was required to consult with an expert to determine whether there was a
good faith basis to assert claims based on those new allegations and to file a certificate
stating as such with her amended complaint. Because the original certificate was based on
an expert’s belief that there was a good faith basis to maintain the action based on the
claims in the original complaint, Plaintiff could not rely on the original certificate to
support her amended complaint.
Thus, although Plaintiff and Defendants have offered reasonable interpretations
concerning the unsettled requirements of § 29-26-122 when an amended complaint is filed
that does not add new defendants, we agree with the trial court’s determination that § 29-
26-122 required Plaintiff to file a new certificate of good faith with her amended complaint.
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III. SUBSTANTIAL COMPLIANCE
Plaintiff contends the trial court erred when it found that she did not substantially
comply with § 29-26-122(a). Plaintiff maintains that she substantially complied with § 29-
26-122(a) by filing Dr. DeLuke’s affidavit in response to Defendants’ motions for
summary judgment, which addressed all the elements in § 29-26-115, including the
applicable standard of care, how Dr. Straughn deviated from that standard, and how Dr.
Straughn’s deviation directly and proximately caused Plaintiff’s injuries.
In support of this argument, Plaintiff cites Hinkle v. Kindred Hospital, No. M2010-
02499-COA-R3-CV, 2012 WL 3799215 (Tenn. Ct. App. Aug. 31, 2012). In Hinkle, the
plaintiff attached a doctor’s affidavit to her complaint instead of a certificate of good faith.
Id. at *8. Like Dr. DeLuke’s affidavit, the doctor’s affidavit in Hinkle addressed the
applicable standard of care, how the defendants’ conduct breached that standard, and how
the defendants’ breach caused the patient’s injuries. Id. We found the affidavit was
sufficient for § 29-26-122(a) because it supplied more information than was required. Id.
at *9. We, however, find Hinkle distinguishable from the case at hand.
Unlike the plaintiff in Hinkle, who filed the doctor’s affidavit with her complaint,
Plaintiff filed Dr. DeLuke’s affidavit with her response to Defendants’ motions for
summary judgment several months before amending her complaint. As our Supreme Court
emphasized in Myers v. AMISUB (SFH), Inc., 382 S.W.3d 300 (Tenn. 2012), plaintiffs
must strictly comply with § 29-26-122’s filing requirement by including the certificate of
good faith “with the complaint.” Id. at 310; see also Dotson v. State, No. E2019-00325-
COA-R9-CV, 2019 WL 6523164, at *4 (Tenn. Ct. App. Dec. 3, 2019) (“[T]he natural and
ordinary meaning of the statute’s words clearly and unambiguously requires that the
certificate of good faith be a document that is filed in addition to and contiguous to the
complaint.”). Thus, whether or not the contents of Dr. DeLuke’s affidavit addressed all the
elements in § 29-26-115, Plaintiff did not strictly comply with § 29-26-122(a).
For this reason, we agree with the trial court’s determination that Plaintiff could not
rely on Dr. DeLuke’s affidavit to satisfy the requirements of § 29-26-122(a).
IV. GOOD CAUSE FOR EXTENSION OF TIME
Plaintiff contends the trial court erred when it denied her motion for an extension of
time in which to file a new certificate of good faith after determining that “[s]imply
believing that you have complied with the statute is not extraordinary cause.”
A trial court’s decision to enlarge the time to file a certificate of good faith is
discretionary. See Brandon, 343 S.W.3d at 789 (citations omitted). In Lee Medical, Inc. v.
Beecher, 312 S.W.3d 515 (Tenn. 2010), the Tennessee Supreme Court provided a
framework for determining whether a trial court correctly exercised its discretion:
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[R]eviewing courts should review a [trial] court’s discretionary decision to
determine (1) whether the factual basis for the decision is properly supported
by evidence in the record, (2) whether the [trial] court properly identified and
applied the most appropriate legal principles applicable to the decision, and
(3) whether the [trial] court’s decision was within the range of acceptable
alternative dispositions.
Id. at 524. In other words, discretionary decisions require “a conscientious judgment,
consistent with the facts, that takes into account the applicable law.” White v. Beeks, 469
S.W.3d 517, 527 (Tenn. 2015) (citing Lee Med., Inc., 312 S.W.3d at 524) (emphasis
added).
Nothing in the record suggests that the trial court discredited the explanation of
Plaintiff’s counsel that the failure to file a certificate of good faith with the amended
complaint was based on an honest belief that the statute did not require a new certificate of
good faith. Instead, the trial court denied Plaintiff’s motion, explaining that “[s]imply
believing that you have complied with the statute is not extraordinary cause.” We
respectfully find that the trial court applied an incorrect legal principle in denying
Plaintiff’s motion for an extension of time in which to file the requisite certificate of good
faith.
Tennessee Code Annotated § 29-26-122 provides two forms of relief for non-
compliant plaintiffs. First, a court may excuse the plaintiff’s failure to file a certificate of
good faith for “demonstrated extraordinary cause.” Id. § 29-26-122(a). Second, a court may
“grant an extension within which to file a certificate of good faith . . . for other good cause
shown.” Id. § 29-26-122(c) (emphasis added); see Hurley v. Pickens, 536 S.W.3d 419, 423
(Tenn. Ct. App. 2016). When the General Assembly adopted § 29-26-122(c), it “created a
get-out-of-jail-free card to allow plaintiffs, in limited circumstances, to escape the
mandatory deadlines for the certificate of good faith filing requirement.” Est. of
Blankenship, 2022 WL 951256, at *8. “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.” Hurley, 536 S.W.3d at 423 (quoting Robles
v. Vanderbilt Univ. Med. Ctr., No. M2010-01771-COA-R3-CV, 2011 WL 1532069, at *2–
3 (Tenn. Ct. App. Apr. 19, 2011)).
“Extraordinary cause” has been defined as “going far beyond the ordinary degree,
measure, limit, etc.; very unusual; exceptional; remarkable.” Myers, 382 S.W.3d at 310–
11 (quoting Webster’s New World Dictionary of the American Language, 516 (1966)).
Examples include “illness of the plaintiff’s lawyer, a death in that lawyer’s immediate
family, [or] illness or death of the plaintiff’s expert in the days before the filing became
necessary.” Id. (quoting John A. Day, Med Mal Makeover 2009 Act Improves on ‘08: The
New New Medical Malpractice Notice and Certificate of Good Faith Statutes, Tenn. B.J.,
July 2009, at 14, 17).
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On the other hand, “good cause” has been defined as “a cause that comports with
the purposes of the . . . statute,” Wallace v. Sullivan, 561 S.W.2d 452, 455 (Tenn. 1978),
or “[a] legally sufficient reason,” Est. of Blankenship, 2022 WL 951256, at *8 (alteration
in original) (quoting Black’s Law Dictionary (11th ed. 2019)). The phrase “has more often
been defined by what it is not, rather than what it is.” Stovall, 2014 WL 2155345, at *12.
Suffice it to say that “good cause” is “a relative and highly abstract term.” Williams v. State,
No. 01-A-01-9206-BC00212, 1993 WL 41162, at *5 (Tenn. Ct. App. Feb. 19, 1993) (Koch,
J., concurring) (citing Wray v. Folsom, 166 F. Supp. 390, 394 (W.D. Ark. 1958); Wallace,
561 S.W.2d at 455). It is clear, however, that “good cause is a less exacting standard than
extraordinary cause.” Stovall, 2014 WL 2155345, at *12 (citations omitted).
We have held that a party’s misunderstanding of the law may constitute “good
cause” or even “extraordinary cause” when the law is unsettled, unclear, or potentially
confusing. See Brown v. Samples, No. E2013-00799-COA-R9-CV, 2014 WL 1713773, at
*9 (Tenn. Ct. App. Apr. 29, 2014) (finding plaintiff met the more exacting standard of
“extraordinary cause” when “the state of the . . . was unsettled, unclear, and potentially
confusing” and “there was no statutory or regulatory guidance on th[e] issue at the time”);
Stovall, 2014 WL 2155345, at *17–18 (holding that the plaintiff showed good cause for an
extension of time based on her counsel’s “reasonable confusion” over a requirement in §
29-26-122 that was “far from settled”); see also Igou v. Vanderbilt Univ., No. M2013-
02837-COA-R3-CV, 2015 WL 1517794, at *9 (Tenn. Ct. App. Mar. 27, 2015) (“[A]n issue
of first impression may constitute extraordinary cause in some circumstances . . . .”
(citation omitted)).
On the other hand, we have held that a professed misunderstanding of the law does
not constitute “good cause” or “extraordinary cause” when the statute’s language is clear.
See West, 2013 WL 1183074, at *6 (finding purported “misinterpretation of the law” did
not show good cause for an extension of time to file a certificate of good faith when the
plain language of the statute was clear); Hanson v. Levan, No. E2020-01581-COA-R9-CV,
2021 WL 4944710, at *8 (Tenn. Ct. App. Oct. 25, 2021) (finding no “good cause” for an
extension of time based on a “reasonable confusion in the law” when “the statute and
resulting case law [were] clear”), appeal denied (Jan. 13, 2022).
Thus, whether the belief of Plaintiff’s counsel that no certificate of good faith was
required with the amended complaint was “good cause” for granting an extension depends
on whether her counsel’s misinterpretation was reasonable, i.e., whether the law was
unsettled, unclear, or potentially confusing. Cf. Lorenzen v. Emps. Ret. Plan of the Sperry
& Hutchinson Co., 896 F.2d 228, 232 (7th Cir. 1990) (explaining that “plausible
misconstructions, but not mere ignorance, of the law or rules” may constitute excusable
neglect).
Because the trial court applied the incorrect, “extraordinary cause” standard to
Plaintiff’s motion for an extension of time, we vacate its decision to deny Plaintiff’s motion
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for an extension of time in which to file the requisite certificate of good faith and remand
for reconsideration of the motion under the correct “good cause” standard.
V. DISMISSAL OF THE AMENDED COMPLAINT
Plaintiff also contends the trial court erred when it dismissed the entire amended
complaint rather than just dismissing the lack of informed consent claim because a good
faith certificate was filed with the original complaint. The trial court’s decision to dismiss
the entire amended complaint was based, in part, on its decision to deny Plaintiff’s motion
for additional time in which to file the requisite certificate. Therefore, we find it necessary
to vacate the trial court’s order dismissing the amended complaint. Accordingly, this issue
is also remanded for further consideration by the trial court.
IN CONCLUSION
The judgment of the trial court is affirmed in part and vacated in part, and this matter
is remanded for further proceedings consistent with this opinion. Costs of appeal are
assessed one-half against the appellant, the Estate of Jennifer Diane Vickers, and one-half
against the appellees, Diversicare Leasing Corp. d/b/a Diversicare of Smyrna; OneCare
Dental Solutions, LLC; and Dr. Paul Straughn.
________________________________
FRANK G. CLEMENT JR., P.J., M.S.
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