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

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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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