Debra Smith v. Ronnie Outen, M.D.

10/09/2020

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

July 14, 2020 Session

DEBRA SMITH ET AL. v. RONNIE OUTEN M.D. ET AL.

Appeal from the Circuit Court for Benton County

No. 16-CV-8 Charles C. McGinley, Judge

___________________________________

No. W2019-01226-COA-R3-CV

___________________________________

In this health care liability action, the defendant pharmacists were sued for dispensing the

wrong medication to the plaintiff. The defendants then alleged comparative fault against

Appellant doctor, who was treating the patient. The plaintiff amended her complaint to

allege fault against the doctor. However, the doctor was eventually granted summary

judgment when no expert was produced to support the claim. Appellant doctor then sought

sanctions pursuant to Tennessee Code Annotated section 29-26-122(d)(3) on the basis that,

inter alia, the defendants’ certificate of good faith was supported by the written statement

of an incompetent expert witness. The trial court denied the motion for sanctions. We

affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed and

Remanded

J. STEVEN STAFFORD, P.J., W.S., delivered the opinion of the court, in which KENNY

ARMSTRONG and CARMA DENNIS MCGEE, JJ., joined.

J. Eric Miles and Brigham A. Dixson, Nashville, Tennessee, for the appellant, Ronnie

Outen, M.D.

Minton Philip Mayer and Colleen M. Schuetz, Memphis, Tennessee, for the appellees,

Herndon Pharmacy, PLLC, and R. Stephen Herndon.

Suzanne G. Marsh, Daniel Lynch Nolan, Jr., Clarksville, Tennessee, for the appellees,

Leitner, Williams, Dooley & Napolitan, PLLC.

OPINION

BACKGROUND

Debra and Anthony Smith (“Plaintiffs”) filed a complaint in the Benton County

Circuit Court (“the circuit court”) in 2016 against Herndon Pharmacy, LLC and R. Stephen

Herndon (together, “Defendants”), alleging that Defendants had dispensed the wrong

medication, Mirtazapine, to Mrs. Smith, causing her injury.1 In her Complaint, Mrs. Smith

alleged that her prescribing physician, Ronnie Outen, M.D. (“Dr. Outen” or “Appellant”),

“immediately stopped [her] from taking Mirtazapine any further” when he realized she had

been given it erroneously. Defendants, by and through counsel, Bruce D. Gill of Leitner,

Williams, Dooley & Napolitan, PLLC (together with Mr. Gill, “Appellees”), filed an

answer alleging comparative fault as to Appellant.2 Specifically, based in part on Mrs.

Smith’s assertion in her complaint that Appellant ordered her to immediately stop taking

the Mirtazapine rather than taper off of it, Defendants alleged that Appellant breached his

duty of care to Mrs. Smith, resulting in her injuries.3 Pursuant to Tennessee Code

Annotated section 29-26-122, Mr. Gill filed a certificate of good faith to support

Defendants’ allegation of non-party comparative fault against Appellant in their answer.

The certificate stated in relevant part:

1. I have 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 Tenn. Code Ann. § 29-26-115 to express opinion(s) in

the case; and

(B) Believe, based on the information reviewed concerning the care and

treatment of the Plaintiff for the incident(s) at issue, that there is a good faith

basis to allege such fault against another consistent with the requirements of

Tenn. Code Ann. § 29-26-115.

Plaintiffs thereafter amended their complaint to name Appellant as a defendant,

based on Appellees’ and Defendants’ allegations of comparative fault against Appellant.

1

Though Mr. Herndon owns Herndon Pharmacy and is a named defendant, he did not personally

dispense the prescriptions at issue to Mrs. Smith—rather, some of his employees did.

2

Defendants are on record as appellees in this appeal, but their brief states that they appear solely to

state that there are no remaining issues involving them, and they reserved their right to appear at oral

argument. Plaintiffs declined to file a brief and to participate in oral argument as appellants, given they

already settled.

3

It is undisputed that Appellant prescribed Mrs. Smith Mirapex, and that Herndon Pharmacy

erroneously dispensed Mirtazapine to her on multiple occasions. Further, while the record contains some

inconsistencies regarding the manner in which Mrs. Smith stopped taking the Mirtazapine, it seems

undisputed that Appellant advised Mrs. Smith to cease taking the Mirtazapine upon realizing she had been

given the wrong medication.

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Appellant denied fault in his answer to the amended complaint and ultimately moved for

summary judgment in the circuit court, after neither Plaintiffs nor Defendants disclosed

expert witnesses who would offer testimony against Appellant. Neither Defendants nor

Plaintiffs filed documents in opposition to Appellant’s motion for summary judgment, and

the circuit court granted the motion in an agreed order on November 19, 2018, dismissing

Appellant from the case with prejudice. Ultimately, Plaintiffs and Defendants settled, and

the case against Defendants was also dismissed with prejudice on or about May 21, 2019.

Prior to the dismissal, however, on December 13, 2018, Appellant filed a motion to

compel Defendants to disclose the signed written statement of the expert relied on in

executing Mr. Gill’s certificate of good faith, pursuant to section 29-26-122(d)(2).

Defendants disclosed their expert statement,4 which was signed by Mr. Herndon. Appellant

then filed a motion in the circuit court to deem the certificate of good faith insufficient and

impose sanctions on Appellees for violating sections 29-26-122(d)(2) and (3). Therein,

Appellant argued that Mr. Herndon’s statement was the sole and inadequate basis for Mr.

Gill’s certificate of good faith, because Mr. Herndon is unqualified to testify about the

standard of care applicable to a family physician such as Appellant or medical causation of

injuries, as admitted in his own deposition; Mr. Herndon lacked a factual basis for alleging

comparative fault against Appellant; and his written statement failed to meet the

requirements of section 29-26-122. Appellees responded, asking the circuit court to deem

the certificate of good faith sufficient and deny the motion for sanctions. According to

Appellees, Mr. Herndon was competent to provide the written statement underlying the

certificate of good faith, and both his written statement and the certificate of good faith

complied with the law.

The circuit court heard arguments on May 21, 2019 on Appellant’s motion for

sanctions, and entered an order denying the imposition of sanctions on June 10, 2019. The

trial court found that while it would have been better practice for Appellees to have sought

a medical professional’s opinion to support the certificate of good faith, the certificate

based on Mr. Herndon’s opinion nonetheless sufficiently complied with section 29-26-122

and exhibited no evidence of bad faith to support a finding that section 29-26-122 was

violated. The circuit court gave special weight to Mr. Gill’s affidavit in making its decision,

and noted that as soon as it was discovered that Appellant bore no responsibility in the

case, summary judgment was agreed to. Appellant then filed a notice of appeal.

While this appeal was pending, on September 18, 2019, Plaintiffs gave notice to the

circuit court of the filing of the demand package that Plaintiffs’ counsel sent to Defendants’

insurance company on November 13, 2015, and the insurance company’s response to the

demand package, sent to Plaintiffs’ counsel on December 4, 2015 (collectively, “the

Settlement Documents”). The cover page on the demand package states as follows:

4

At this point, Defendants had retained new counsel.

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This is a Demand Letter sent by Attorney David R. Grimmett of the Grimmett

Law Firm, PLLC. It is sent pursuant to Rule 408 of the Tennessee Rules of

Evidence. Under no circumstances should it be considered admissible as part

of the claim contained herein. The purpose of this Demand Letter is to resolve

litigation which is currently pending or about to begin.

Similarly, the insurance company’s response letter stated that its response was to be used

for settlement purposes only. The demand package also included a summary of the

healthcare services that Mrs. Smith received, which was labeled as created by Plaintiffs’

counsel. On September 23, 2019, Appellant filed a supplemental designation of the record,

designating the Settlement Documents for inclusion in the record on appeal. Appellees

responded with a Tennessee Rule of Civil Procedure Rule 12.06 motion to strike Plaintiffs’

notice of filing the Settlement Documents and a response to Appellant’s designation of the

Settlement Documents as part of the appellate record. Appellant attached an affidavit of

Plaintiffs’ counsel to his response, wherein Plaintiffs’ counsel swore that he had provided

Defendants’ insurance carrier with a complete copy of Appellant’s chart for Mrs. Smith.

Appellees then made another Rule 12.06 motion to strike Plaintiffs’ counsel’s affidavit.

The circuit court heard oral argument on the motions to strike on October 21, 2019, and

entered an order denying them on November 6, 2019. The court gave no reasoning for its

decision. The Settlement Documents are therefore included in the record on appeal.

ISSUES PRESENTED

Appellant and Appellees each raise issues on appeal, which we consolidate and

restate as follows.5

1. Whether the circuit court erred in denying Appellant’s motion to deem the

5

Appellant specifically raises the following issues:

1. Whether the circuit court erroneously interpreted Tennessee Code Annotated section

29-26-122 in ruling on Appellant’s motion to deem the certificate of good fair

insufficient and impose sanctions.

2. Whether the circuit court erroneously denied Appellant’s motion to deem the

certificate of good fair insufficient and impose sanctions.

Appellees raise the following three additional issues:

1. Whether the circuit court abused its discretion in denying Appellant’s motion to deem

the certificate of good fair insufficient and impose sanctions.

2. Whether the circuit court properly considered and relied on Mr. Gill’s affidavit and

other materials properly before the court in denying Appellant’s motion for sanctions.

3. Whether the circuit court properly included the Rule 408 settlement demand package

from the plaintiff patient and the response from the liability carrier in the record on

appeal.

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certificate of good faith insufficient and impose sanctions.

2. Whether the circuit court properly included the Settlement Documents in the record

on appeal.

DISCUSSION

This case provides this Court with one of the first opportunities to consider a motion

for sanctions under Tennessee Code Annotated section 29-26-122. See also Kerby v. Haws,

No. M2011-01943-COA-R3-CV, 2012 WL 6675097, at *7 (Tenn. Ct. App. Dec. 20, 2012)

(involving this issue; discussed in detail, infra); Jackson v. HCA Health Servs. of

Tennessee, Inc., 383 S.W.3d 497, 506 (Tenn. Ct. App. 2012) (same). The resolution of

this case therefore depends on the proper interpretation of section 29-26-122. Statutory

interpretation is a question of law, and we review it de novo without a presumption of

correctness. Kerby, 2012 WL 6675097, at *7 (citing Gleaves v. Checker Cab Transit

Corp., Inc., 15 S.W.3d 799, 802 (Tenn. 2000); Myint v. Allstate Ins. Co., 970 S.W.2d 920,

924 (Tenn. 1998)). In interpreting a statute, we must give effect to the legislature’s intent.

Id. (internal citations omitted). “The legislative intent and purpose are to be ascertained

primarily from the natural and ordinary meaning of the statutory language, without a forced

or subtle interpretation that would limit or extend the statute’s application.” Id. (citing State

v. Blackstock, 19 S.W.3d 200, 210 (Tenn. 2000)).

Our analysis therefore must begin with the language of the relevant statute. In

pertinent part, section 29-26-122(d) provides as follows:

(2) If a party in a health care liability action subject to this section prevails

on the basis of the failure of an opposing party to offer any competent expert

testimony as required by § 29-26-115, the court may, upon motion, compel

the opposing party or party’s counsel to provide to the court a copy of each

such expert’s signed written statement relied upon in executing the certificate

of good faith. The medical experts may be compelled to provide testimony

under oath, as determined by the court, for the purposes of determining that

party’s compliance with subsection (a) or (b).

(3) If the court, after hearing, determines that this section has been violated,

the court shall award appropriate sanctions against the attorney if the attorney

was a signatory to the action and against the party if the party was proceeding

pro se. The sanctions may include, but are not limited to, payment of some

or all of the attorney’s fees and costs incurred by a party in defending or

responding to a claim or defense supported by the non-complying certificate

of good faith. If the signatory was an attorney, the court shall forward the

order to the board of professional responsibility for appropriate action. Upon

proof that a party or party’s counsel has filed a certificate of good faith in

violation of this section in three (3) or more cases in any court of record in

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this state, the court shall, upon motion, require the party or party’s counsel

to post a bond in the amount of ten thousand dollars ($10,000) per adverse

party in any future health care liability case to secure payment of sanctions

for any violation of this section in such case.

Thus, section 29-26-122(d) provides a mechanism for a party to obtain the statement

underlying a certificate of good faith when the party prevails at the summary judgment

stage on the basis of the opposing party’s failure to offer competent expert proof. The

purpose of obtaining the written statement is to “determin[e] th[e] opposing party’s

compliance with subsection (a) or (b).” Tenn. Code Ann. § 29-26-122(d)(2). The dismissal

of the lawsuit at the summary judgment stage itself therefore provides no basis for

sanctions; it merely triggers a party’s ability to obtain additional information upon which

to determine if the good faith certificate requirement was violated.

Subsections (a) and (b) contain the good faith certificate requirement applicable in

healthcare liability actions. See Tenn. Code Ann. § 29-26-122(a) (involving the duty of

the plaintiff); (b) (involving the duty of the defendant raising the fault of a non-party).

Subsection (b) is the relevant provision in this case:

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:

(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; . . . .[6]

6

The statute goes on to provide an additional method of satisfying the good faith requirement:

(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 opinions or opinions in the

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Tenn. Code Ann. § 29-26-122(b); see also Tenn. Code Ann. § 29-26-115 (providing rules

regarding the necessity and competency of experts in health care liability actions). Thus, if

“this section[,]” i.e., section 29-26-122, is violated, the court “shall” award sanctions,

which “may” include attorney’s fees. Tenn. Code Ann. § 29-26-122(d)(3).

Appellant contends that Appellees in this case violated section 29-26-122 in a

multitude of ways because the written statement relied on in support of the certificate of

good faith was insufficient. In particular, Appellant argues that unless Appellees acted in

“complete compliance” with section 29-26-122 (and by incorporation therein, section 29-

26-115), he is entitled to an award of sanctions. In contrast, Appellees assert that they met

both the letter and the spirit of section 29-26-122’s good faith requirement, as mandated

by the plain language of the statute and the caselaw interpreting it.

In order to decide the issues in this case, it is important that we consider section 29-

26-122(d)(3) as part and parcel of the good faith certificate requirement and the Tennessee

Healthcare Liability Act (“THCLA”) as a whole. Indeed, “[w]e do not read statutes in

isolation and are required to construe them ‘as a whole, read them in conjunction with their

surrounding parts, and view them consistently with the legislative purpose.’” Griffin v.

Campbell Clinic, P.A., 439 S.W.3d 899, 903 (Tenn. 2014) (quoting Kradel v. Piper Indus.,

Inc., 60 S.W.3d 744, 750 (Tenn. 2001)). As our high court explained,

The statute must be construed in its entirety, and it should be assumed that

the legislature used each word purposely and that those words convey some

intent and have a meaning and a purpose. The background, purpose, and

general circumstances under which words are used in a statute must be

considered, and it is improper to take a word or a few words from its context

and, with them isolated, attempt to determine their meaning.

Eastman Chem. Co. v. Johnson, 151 S.W.3d 503, 507 (Tenn. 2004) (internal citations

omitted).

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.

The certificate filed in this case did not specifically rely on this subsection and we therefore do not consider this

portion of the statute.

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The purpose of the THCLA generally and the certificate of good faith requirement

specifically has been previously discussed by this Court:

One of the purposes of the certificate of good faith is to weed out frivolous

lawsuits before any party incurs substantial litigation expenses. The filing of

a certificate of good faith indicating that an expert has reviewed the claims

and has certified that they are taken in good faith “satisfies the goal of

attempting to ensure that suits proceeding through litigation have some

merit.”

Hinkle v. Kindred Hosp., No. M2010-02499-COA-R3-CV, 2012 WL 3799215, at *8

(Tenn. Ct. App. Aug. 31, 2012), perm. app. denied (Tenn. Dec. 10, 2013) (internal citations

omitted) (citing Jenkins v. Marvel, 683 F. Supp. 2d 626, 639 (E. D. Tenn. 2010)). “The

filing of a certificate of good faith indicating that an expert has reviewed the claims and

has certified that they are taken in good faith ‘satisfies the goal of attempting to ensure that

suits proceeding through litigation have some merit.’” Kerby, 2012 WL 6675097, at *4

(quoting Jenkins, 683 F. Supp. 2d at 639). Indeed, the language of the statute itself

provides illumination into its purpose: to ensure that a good faith basis exists for the filing

of the lawsuit. In evaluating the written statement created in support of section 29-26-

122(b), we are expressly directed to consider the “good faith” of the party asserting the

cause of action. See also id. (stating that the purpose of making the written statement

discoverable is “in order to give the court the tools needed to determine whether the

certificate of good faith was itself executed in good faith”). A standard of “good faith”

therefore governs Appellees’ conduct in this case. Id.

The term “good faith” is not defined in section 29-26-122 or elsewhere in the

THCLA. Generally, “[t]he words used in a statute are to be given their natural and ordinary

meaning. If the language of the statute is clear and unambiguous, we apply its plain

meaning in its normal and accepted use.” Funk v. Scripps Media, Inc., 570 S.W.3d 205,

219 (Tenn. 2019) (internal citations omitted). “Good faith,” however, defies precise

definition:

The duty of good faith is not specifically defined by our courts. As explained

in the Tennessee Practice Series:

The term “good faith” resists an exact definition . . . because it

arises in various contexts and its meaning will vary

accordingly. Indeed, “good faith” is “a term frequently defined

in the negative,” i.e., it represents the absence of bad faith.

Another authority makes these helpful observations about the

“good faith” concept:

[G]ood faith is an “excluder.” It is a phrase

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without general meaning (or meanings) of its

own and serves to exclude a wide range of

heterogeneous forms of bad faith. In a particular

context the phrase takes on specific meaning, but

usually this is only by way of contrast with the

specific form of bad faith actually or

hypothetically ruled out.

Cadence Bank, N.A. v. The Alpha Tr., 473 S.W.3d 756, 769–70 (Tenn. Ct. App. 2015)

(quoting 21 Tenn. Prac. Contract Law & Practice § 8:33 (2014) (footnotes and internal

citations omitted)). In other contexts, good faith requirements have not mandated

perfection. See, e.g., Dry Creek Citizens Coal. v. Cty. of Tulare, 70 Cal. App. 4th 20, 26,

82 Cal. Rptr. 2d 398, 402 (1999) (“. . . [A] good faith effort . . . does not mandate perfection,

nor does it require an analysis to be exhaustive.”) (internal citations and quotation marks

omitted); State v. New, 331 Ga. App. 139, 146, 770 S.E.2d 239, 245 (2015) (contrasting

good faith with perfection); Crosby v. State, 241 S.C. 40, 44, 126 S.E.2d 843, 845 (1962)

(stating that effective representation requires the attorney to act in good faith, but does not

require perfection).

In the specific context of section 29-26-122, this Court has previously analogized

the good faith requirement to a due diligence requirement. In Jackson, the pro se plaintiff

filed a medical malpractice claim for injuries she allegedly sustained from a minimally

invasive surgery, but did not attach a certificate of good faith to her complaint. 383 S.W.3d.

at 499. She claimed that the good faith certificate requirement violated several

constitutional provisions. In addressing this argument, it was necessary for the Court to

discuss the duty actually imposed on plaintiffs7 under section 29-26-122:

[Tennessee Code Annotated § 29-26-122(a)(1)] merely requires proof of the

plaintiff’s due diligence, specifically that the plaintiff or his counsel

consulted with at least one competent medical expert who provided a written

statement confirming that the expert believes, based on the information

available from medical records concerning the care and treatment of the

plaintiff, that there is a good faith basis to maintain the action consistent with

the requirements of Tennessee Code Annotated § 29-26-115.

Id. at 506.

This due diligence standard, the court held, was generally consistent with Rule 11.02

of the Tennessee Rules of Civil Procedure. But see Kerby, 2012 WL 6675097, at *7 n.4

7

While Jackson was a case about a plaintiff’s certificate of good faith under section 29-26-122(a), its reasoning

is equally applicable to a defendant’s good faith certificate under section 29-26-122(b).

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(stating that Rule 11.02’s specific procedural requirements are inapplicable when sanctions

are sought under section 29-26-122(d)(3)). That rule provides that claims (1) cannot be

presented for any improper purpose; (2) “are warranted by existing law or by a

nonfrivolous argument for the extension, modification, or reversal of existing law or the

establishment of new law;” and (3) “have evidentiary support or, if specifically so

identified, are likely to have evidentiary support after a reasonable opportunity for further

investigation or discovery[.]” Tenn. R. Civ. P. 11.02. Under Rule 11.02, “‘[s]anctions are

appropriate when an attorney submits a motion or other paper on grounds which he knows

or should know are without merit, and a showing of subjective bad faith is not required.’”

Brown v. Shappley, 290 S.W.3d 197, 203 (Tenn. Ct. App. 2008) (quoting Hooker v.

Sundquist, 107 S.W.3d 532, 536 (Tenn. Ct. App. 2002)). Thus, we held that in order to

meet the good faith standard required by section 29-26-122, there was no requirement “that

a plaintiff have, at the commencement of the action, all of the expert testimony that may

be needed on all issues,” or “‘conduct discovery and make a prima facie case prior to suit

being filed.’” Id. at 505–506.

Although the court in Jackson was the first to elucidate the proper standard under

which to judge a party’s exercise of good faith in this context, Kerby was the first case to

actually consider an appeal from the award of sanctions under section 29-26-122(d)(3).

2012 WL 6675097, at *1. In Kerby, the plaintiff filed a medical malpractice claim against

her surgeon when she suffered infections after an operation. Id. She attached a certificate

of good faith to her complaint, which certified that she had consulted with an expert who

had provided the requisite underlying written statement. Id. at *2. It was later revealed that

the cause of the plaintiff’s infection could not have been the defendant-surgeon’s conduct,

and thus the parties agreed to the defendant’s motion for summary judgment. Id. at *2–*3.

Like in this case, the defendant filed a motion to compel the plaintiff’s expert’s

statement underlying the certificate of good faith, and a motion for sanctions against the

plaintiff’s counsel. Id. at *3. The defendant alleged that the plaintiff’s counsel did not

provide sufficient information to the expert for the expert to make his statement underlying

the certificate of good faith. See id. The trial court awarded sanctions against the plaintiff’s

counsel. Id. This Court reversed because the plaintiff’s attorney had filed the required

certificate of good faith and underlying expert statement, and the attorney and the expert

had properly relied on the plaintiff’s medical records as the basis for the certificate of good

faith and underlying statement. Id. at *5–*6. Moreover, we explained that “[t]he filing of

a certificate of good faith with a malpractice complaint is not a guarantee that a claim will

ultimately prove to be meritorious. It is rather a necessary requirement that must be

satisfied before the claim can proceed further.” Id. at *6. We emphasized that “[t]he fact

that the medical expert’s opinion may ultimately not be accepted is not a basis for

concluding that the attorney violated the certificate of good faith statute.” Id. at *5. Rather,

whether the expert’s opinion should ultimately be accepted is for the trial court to decide

later in the litigation process. See id. at *6 (“The objections Dr. Haws raises as support for

sanctions[, including that the expert statement underlying the certificate of good faith was

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deficient,] are the type of issues that would normally be explored and resolved as the case

moved forward. While some may then have been decided in Dr. Haws’ favor, they do not

constitute grounds for sanctions for violation of the requirements of the certificate of good

faith statute.”).

Applying the foregoing principles to the case-at-bar, we cannot conclude that the

trial court erred in its decision to deny sanctions in this case. It is true that neither the plain

language of section 29-26-112(d) nor the analogous Rule 11.02 require bad faith at a

minimum in order to award sanctions. See Tenn. Code Ann. § 29-26-122(d)(2) & (3);

Shappley, 290 S.W.3d at 203. That is not to say, however, that bad faith is an entirely

irrelevant consideration. Cf. Truth v. Eskioglu, 781 F. Supp. 2d 630, 635 & n.8 (M.D.

Tenn. 2011) (considering whether to excuse failure to file a good faith certificate on the

basis of extraordinary cause and noting that “[n]othing indicates that [plaintiff’s counsel]

was acting in bad faith or employing procedural machinations to purposely delay the filing

of the certificate of good faith”). And while the trial court may have relied in part on its

finding that no bad faith was exhibited, we are often permitted to affirm the trial court’s

decision on other grounds. See Hill v. Lamberth, 73 S.W.3d 131, 136 (Tenn. Ct. App.

2001) (in the summary judgment context); White v. Dozier, No. M1999-02386-COA-R3-

CV, 2000 WL 244229, at *2 (Tenn. Ct. App. Mar. 6, 2000) (quoting Hooks v. Hooks, 771

F.2d 935, 945 (6th Cir.1985)) (“This appellate court ‘may examine the record and affirm

the [trial] court on other grounds if we determine that there exists no material controversy

regarding matters of fact or law.’”). Moreover, the trial court’s order makes clear that it

found that Appellees “sufficiently compli[ed]” with section 29-26-122 so as to constitute

a good faith effort.

Furthermore, although issues of statutory interpretation are reviewed de novo, as

discussed above, the statute in this case requires a party to exercise good faith. “What is

good faith depends, it is obvious, upon the facts and circumstances of each case.” Gulf Ins.

Co. v. Construx, Inc., No. M1999-02803-COA-R3-CV, 2001 WL 840240, at *19 (Tenn.

Ct. App. July 26, 2001) (internal quotations omitted). Whether a party acted in good faith

is therefore a factual question. Id. (“Good faith, or the lack thereof, as well as

reasonableness, should be determined in the context of the specific factual situation

involved.”). Factual findings on this issue are therefore entitled to a presumption of

correctness on appeal. See, e.g., Daugherty v. Doyle, No. M2013-02509-COA-R3-CV,

2014 WL 6453770, at *8 (Tenn. Ct. App. Nov. 17, 2014) (citing Dick Broad. Co., v. Oak

Ridge FM, Inc., 395 S.W.3d 653, 671 (Tenn.2013); Tenn. R. App. P. 13(d)) (“The question

of whether a party acted in good faith presents an issue of fact; issues of fact are entitled to

a presumption of correctness.”). Appellant must therefore show on appeal that the evidence

preponderates against the trial court’s finding that Appellees acted in good faith. See Spann

v. Am. Exp. Travel Related Servs. Co., 224 S.W.3d 698, 707 (Tenn. Ct. App. 2006)

(citation omitted) (“Because of the presumption, an appellate court is bound to leave a trial

court’s finding of fact undisturbed unless it determines that the aggregate weight of the

evidence demonstrates that a finding of fact other than the one found by the trial court is

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more probably true. Thus, for the evidence to preponderate against a trial court’s finding

of fact, it must support another finding of fact with greater convincing effect.”).

Importantly, both the certificate of good faith and the written statement in support

thereof in this case comply with the plain language of the statute on their face. Here, there

is no dispute that Appellees filed a certificate of good faith containing all of the necessary

requirements.8 See Tenn. Code Ann. § 29-26-122(b) (requiring a certificate attesting that

counsel consulted with an expert who signed a statement that he or she believed that he or

she was competent and that there was a good faith basis for the action). And when

compelled by Appellant, Appellees properly supplied the written statement that had been

obtained by Appellees in support of the certificate. Appellant asserts, however, that the

written statement was facially invalid because it does not state verbatim that Mr. Herndon

was “competent under § 29-26-115 to express an opinion or opinions in the case[.]” Tenn.

Code Ann. § 29-26-122(b)(1)(A). However, in a prior case, we held that an expert’s

affidavit that served as the basis for the certificate of good faith was compliant with the

statute even though it did not use the exact language from the statute, where the expert

otherwise appropriately attested to his competence. See Hinkle, 2012 WL 3799215, at *9

(“By testifying that he was licensed as a medical doctor in the State of Tennessee, and that

he is in active practice in the specialty of internal medicine in Madison County, Tennessee,

he has demonstrated that he is competent to testify in this case under § 29-26-115.”).

Similarly, Mr. Herndon’s letter lists his occupation, licensure, and familiarity related to the

pharmacological issues present in the case. Under these circumstances, the evidence does

not preponderate against the trial court’s implicit finding that this purported deficiency did

not rise to the level of a lack of good faith. Thus, Appellees appeared to comply with the

statute by obtaining a written statement in support of their certificate of good faith that

included the required information. Cf. Kerby, 2012 WL 6675097, at *5 (“[The attorney]

provided a good faith certificate that matched these requirements. The attorney’s

responsibility is to certify specific things, and that is what he did. The expert’s written

statement includes the required information.”).

Appellant asserts, however, that this Court should go further to evaluate the

correctness of Mr. Herndon’s assertions within the written statement. In particular,

Appellant asks this Court to consider whether Mr. Herndon was actually competent to

testify as to the necessary elements of any health care liability claim against Appellant.

Essentially, Appellant asserts that a certificate of good faith violates section 29-26-122

8

Appellant attacks the sufficiency of Defendants’ compliance with the good faith certificate

requirement not on the face of the certificate itself, but primarily on the ground that the underlying statement

by Mr. Herndon was insufficient. Questions regarding whether the contents of a section 29-26-122

certificate of good faith are facially valid under either a strict or substantial compliance standard are

therefore irrelevant to our analysis. See Eiswert v. United States, 619 F. App’x 483, 486–87 (6th Cir. 2015)

(Noting that “the Supreme Court of Tennessee has not expressly addressed whether substantial compliance

may suffice under section [29-26-]122” or “whether Tennessee law requires strict compliance under section

[29-26-]122 . . . .”).

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unless the expert or experts who signed the written statement in support thereof were

competent under section 29-26-115(b) to testify as to every necessary element contained

in section 29-26-115(a). See generally Tenn. Code Ann. § 29-26-115(a) (requiring expert

proof as to all the elements of a negligence claim in a health care liability context); § 29-

26-115(b) (listing the requirements for an expert to be competent to testify to establish the

elements in subsection (a)). If Mr. Herndon was not correct in his assertion of competence,

then Appellant asserts that Appellees did not “complete[ly]” comply with section 29-26-

122 and Appellant is entitled to sanctions. Although we have concluded above that

Appellees complied with the express requirements of section 29-26-122, we note that a

prior case involving this issue has considered whether the written statement provided in

support of the certificate of good faith suffered from other types of underlying deficiencies

that demonstrated a failure to exercise good faith. See generally Kerby, 2012 WL 6675097,

at *4–5 (rejecting each and every argument raised by the party seeking sanctions). As such,

we will proceed to consider Appellant’s arguments regarding the substance of the expert

statement in this case as well.

To begin, there is no dispute that Appellees did not ultimately utilize Mr. Herndon

as an expert to support their claim against Appellant at the summary judgment stage;

Appellant impliedly asserts that Appellees’ choice not to present Mr. Herndon at that time

was due to his purported admission in his deposition that he could not render a medical

diagnosis or opine on the standard of care applicable to physicians. We again note,

however, that sections 29-26-122(d)(2) and (3) do not condition sanctions on simply the

dismissal of the health care liability action based on a lack of expert proof; rather, this fact

is simply the triggering mechanism that allows a party to seek additional information to

determine if section 29-26-122 was violated. Had the Tennessee General Assembly wished

to award sanctions solely based on a lack of proof at the summary judgment stage, it could

have done so. See Chattanooga-Hamilton Cty. Hosp. Auth. v. UnitedHealthcare Plan of

the River Valley, Inc., 475 S.W.3d 746, 758 (Tenn. 2015) (“[T]he legislature says what it

means and means what it says.”). We will not interpret their statute at odds with its plain

language.

Moreover, controlling Tennessee caselaw has specifically held that a party may act

in good faith prior to the filing of their lawsuit even without all of the proof necessary to

ultimately prove their claim. See Jackson, 383 S.W.3d at 506. And again, the certificate of

good faith “is not a guarantee that a claim will ultimately prove to be meritorious,” as the

requirement occurs during the very initial stages of litigation. Kerby, 2012 WL 6675097,

at *6. Indeed, the plain language of section 29-26-122 defies such an interpretation. As

previously discussed, the certificate of good faith mandates that the expert provide a written

statement confirming his or her competency only “upon information and belief[.]” Thus,

the plain language of section 29-26-122 requires only that the expert believe that he or she

meets the competency requirement. See Black’s Law Dictionary 175 (9th ed. 2009)

(defining “belief” as “a state of mind that regards the existence of something as likely or

relatively certain”). As such, nothing in the express language of section 29-26-122 requires

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that a party asserting fault against another guarantee that his or her expert is competent or

that the claim will ultimately prevail. Indeed, the duty with regard to competency is placed

on the expert in section 29-26-122; neither the party asserting the fault of another nor his

or her attorney has an express, specific responsibility related to competency other than

obtaining the written statement and filing the certificate in compliance with the statute. In

our view, then, Appellant’s proposed standard would place a heavy burden on attorneys to

judge an expert’s belief in his or her own competency at an incredibly early stage of

litigation in order to avoid running afoul of section 29-26-122 and being liable for

sanctions. Such a burden, however, is a creation of Appellant’s own design rather than a

mandate of section 29-26-122.

Moreover, in the end, it is neither the expert nor the attorneys that decide

competence, but the trial court. See Shipley v. Williams, 350 S.W.3d 527, 551 (Tenn.

2011) (“In its role as a gatekeeper, the trial court is to determine (1) whether the witness

meets the competency requirements of Tennessee Code Annotated section 29-16-115(b)

and, (2) whether the witness’ testimony meets the admissibility requirements of Rules 702

and 703.”); Cox v. M.A. Primary & Urgent Care Clinic, 313 S.W.3d 240, 260 (Tenn.

2010) (“[B]efore a trial court will admit testimony by a proffered expert witness about the

standard of care applicable to a defendant, the trial court must be satisfied that the witness

is competent to testify.”). The purpose of the good faith certificate is not to usurp this

gatekeeping role by requiring an attorney to guarantee that the expert he or she consults

will ultimately be competent to opine as to every element of the cause of action. Rather, it

is intended only to be a barrier against the prosecution of frivolous lawsuits. See Hinkle,

2012 WL 3799215, at *8.

But a frivolous lawsuit is not one that simply does not achieve its end. Rather, “[a]

frivolous argument is one that is not only against the overwhelming weight of legal

authority but also entirely without any basis in law or fact or without any logic supporting

a change of law.” State v. Turner, No. W1999-01516-CCA-R3-CD, 2000 WL 298696, at

*2 (Tenn. Crim. App. Mar. 17, 2000). As the comments to our Rules of Professional

Responsibility explain:

The filing of an action or defense or similar action taken for a client is not

frivolous merely because the facts have not first been fully substantiated or

because the lawyer expects to develop vital evidence only by discovery.

What is required of lawyers, however, is that they act reasonably to inform

themselves about the facts of their client’s case and the law applicable to the

case and then act reasonably in determining that they can make good faith

arguments in support of their client’s position. Such an action is not frivolous

even though the lawyer believes that the client’s position ultimately will not

prevail. The action is frivolous, however, if the lawyer is unable either to

make a good faith argument on the merits of the action taken or to support

the action taken by a good faith argument for an extension, modification, or

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reversal of existing law.

Tenn. R. Sup. Ct. 8, RPC 3.1, cmt. (emphasis added). Thus, the only thing that Mr.

Herndon’s statement was required to state with respect to competency was that he believed

he was competent, which it did. And Defendants’ lawyer properly certified that Mr.

Herndon’s statement contained the necessary statements. The fact that the claim did not

ultimately prevail and questions regarding Mr. Herndon’s competency were raised but not

adjudicated does not necessitate a finding that section 29-26-122 was violated so as to

support an award of sanctions.

And while we make no decision with respect to Mr. Herndon’s ultimate competence

as an expert witness, we note that he is a pharmacist whose professional responsibility

includes counseling patients about medications and their side effects. See Pittman v.

Upjohn Co., 890 S.W.2d 425, 435 (Tenn. 1994) (quoting 7 Tenn. Comp. R. & Regs. 1140-

3-.03(13) (1991)) (“Pursuant to the authority of T.C.A. § 63-10-102, the Board of

Pharmacy of the State of Tennessee has promulgated certain rules and standards of

practice. These rules provide: A pharmacist should, on dispensing a new prescription,

explain to the patient or the patient’s agent the directions for the use and a warning of all

effects of the medication or device that are significant and/or potentially harmful. This

communication should be performed in such a manner that will assure the proper use of

the medication or device prescribed.”). The injuries in this case were directly connected to

the dispensation of medication. Under Tennessee Code Annotated section 29-26-115(b),

health care professionals may be competent to testify in health care liability cases so long

as they are licensed in a proper state for the appropriate amount of time and practice “a

profession or specialty which would make the person’s expert testimony relevant to the

issues in the case.” This is simply not a case where a party attempted to support its

allegation of medical negligence with the “expert” testimony of a person completely

outside of the medical profession. Mr. Herndon, as a licensed pharmacist specializing in

the taking and dispensation of drugs, certainly qualifies as a health care professional

practicing in a field “relevant to the issues in the case.” Id.; cf. Pittman, 890 S.W.2d at 435

(“A significant factor affecting the pharmacy’s duty was the knowledge that no warning

had been given by the physician. Under these circumstances, it was reasonably foreseeable

that [the patient] was at risk of injury. Consequently, the pharmacy, as well as the

physician, owed her the duty to warn.”); Kerby, 2012 WL 6675097, at *6 (“Although

registered nurses may not qualify as an expert in some malpractice cases, medical records[,

including those relied on in an expert’s statement underlying a certificate of good faith,]

typically include the observations of nurses and other health professionals who are not

competent to serve as expert witnesses in cases involving their patients.”). Therefore, the

record supports that Mr. Herndon had a good faith basis to believe he was competent to

assert fault against Appellant at the time the certificate of good faith was filed. Appellees

therefore did not commit sanctionable conduct in relying on the written statement.

Appellant also argues that Mr. Herndon did not review sufficient information

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concerning the care and treatment of Mrs. Smith in making his statement underlying the

certificate of good faith. Unlike other portions of section 29-26-122 which expressly

require that the expert consult the patient’s medical records prior to making his or her

written statement, the statute applicable in this case only requires Mr. Herndon to have

consulted information “concerning the care and treatment of the plaintiff for the inciden[t]

at issue” in writing his statement. Tenn. Code Ann. § 29-26-122(b)(1)(B); compare Tenn.

Code Ann. 29-26-122(b)(1)(B) (applying when the fault of the health care provider is

raised by the defendant in an answer or amended answer), with Tenn. Code Ann. § 29-26-

122(a)(1) (applying to the plaintiff’s allegation of fault against the defendant and expressly

requiring that the plaintiff’s expert base its opinion on “the information available from the

medical records”). The record shows that at the time he executed his written statement, he

had reviewed Mrs. Smith’s complaint, the pharmacy records (which included a notation

about the immediate cessation of Mirtazapine), and clinical information on Mirtazapine.

He had also been informed by his employee about his employee’s phone conversation with

Appellant regarding the circumstances surrounding Appellant’s discovery that Mrs. Smith

had been accidentally dispensed the Mirtazapine. Thus, the record supports that Mr.

Herndon sufficiently considered the information he had at the time regarding Mrs. Smith’s

care before executing his statement.

However, even if Mr. Herndon had also reviewed Mrs. Smith’s medical records,

there would still have been a good faith basis for him to allege fault against Appellant. As

a threshold matter, it appears that Mrs. Smith’s medical records are not actually in the

record. The only record relating to her treatment contained in the Settlement Documents is

a summary chart titled “Medical Summary,” which states on the first page, “Created by:

DAVID R. GRIMMET [i.e., Plaintiffs’ counsel].” Plaintiffs’ counsel’s affidavit states, “In

my November 13, 2015 Demand Package to Pharmacists Mutual Companies, I included a

complete copy of Dr. Outen’s chart for Debra Smith which I previously obtained from Dr.

Outen’s office.” Appellant’s brief likewise states, “Plaintiffs’ counsel sent a demand

package to the insurance carrier for Defendants, which included a complete copy of Dr.

Outen’s chart for Debra Smith.” The implication, therefore, is that there are true and

complete copies of Appellant’s records on Mrs. Smith in the record. That does not appear

to be the case. But assuming, arguendo, that the summary chart in the Settlement

Documents is a complete copy of Appellant’s chart for Mrs. Smith, based on our review of

it, it contains no detail regarding how Appellant treated Mrs. Smith with respect to ceasing

the Mirtazapine. Rather, it merely states, “[Mrs. Smith] has discontinued use of

[Mirtazapine], but continues to experience severe anxiety,” and goes on to list other

symptoms she was experiencing. This provides no additional information that Mr. Herndon

did not already have regarding how and why Mrs. Smith ceased taking the Mirtazapine

when he executed his written statement. And it does not directly contradict the allegation

in the complaint that Appellant directed Mrs. Smith to immediately cease taking the

medication. Because we determine that these purported medical records would therefore

not have impacted the outcome of the case, we need not decide whether it was error for the

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trial court to admit them in the appellate record.9

Finally, Appellant also takes issue with the information the circuit court considered

in making its findings, including Mr. Gill’s affidavit and the fact that the parties quickly

agreed to Appellant’s motion for summary judgment upon realizing Appellant was not

liable. First, Appellant did not ask for Mr. Gill’s affidavit to be stricken and any suggestion

on appeal that it could not be considered in any fashion is waived. It appears, however, that

Appellant does not suggest that the affidavit should have been stricken, but that it was

given too much weight by the trial court. The weight to be given to the evidence, however,

is peculiarly within the trial court’s domain. See Hoover Motor Exp. Co. v. R.R. & Pub.

Utilities Comm’n, 195 Tenn. 593, 607, 261 S.W.2d 233, 239 (Tenn. 1953) (“The weight

to be given particular evidence is a matter peculiarly within the province of the trier of the

facts, unhampered by mechanical rules governing the weight or effect of evidence.”). And

the trial court’s ultimate finding that Appellees acted in good faith is entitled to a

presumption of correctness on appeal. See Daugherty, 2014 WL 6453770, at *8. We have

thoroughly reviewed the record and have determined that Appellees acted in good faith in

raising allegations of fault against Appellant; the certificate of good faith and its underlying

written statement therefore violated neither the letter nor the spirit of section 29-26-122.

Consequently, the trial court did not err in denying Appellant’s request for attorney’s fees

as a sanction.

CONCLUSION

The judgment of the Benton County Circuit Court is affirmed and this cause is

remanded for all further proceedings as may be necessary and consistent with this Opinion.

Costs of this appeal are taxed to Appellant Ronnie Outen, M.D., for which execution may

issue if necessary.

S/ J. Steven Stafford

J. STEVEN STAFFORD, JUDGE

9

Furthermore, because Appellant designated the Settlement Documents for inclusion in the record

on appeal in an apparent attempt to prove that Appellees had access to Mrs. Smith’s medical records at the

time they filed the good faith certificate, the relevant portion of the Settlement Documents for purposes of

our review is only the purported medical records. Therefore, we need not address the other portions of the

Settlement Documents.

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