State High Court Upholds Dismissal of Suit Involving ‘Certificate of Good Faith’ Disclosures

Press Release from the Administrative Office of the Tennessee Courts, May 29, 2015:

Supreme Court Approves Lower Court’s Dismissal of Health Care Liability Lawsuit Without Prejudice

The Tennessee Supreme Court has determined that, in health care liability lawsuits, the obligation to disclose the number of violations of the certificate of good faith requirement does not compel any disclosure if there are no previous violations.

In Tennessee, if a party files suit against a medical provider for damages relating to treatment, the law requires inclusion of a certificate of good faith that states that the plaintiff has consulted with one or more experts who have confirmed that there is a good faith basis for initiating the action. The law also has a provision that the party “shall disclose the number of prior violations” of the good faith certificate requirement.

In this case, the plaintiff provided the certificate, but failed to state how many times he had been in violation of the requirement. The plaintiff had in fact never violated the law.

The defendant doctors filed a motion to dismiss the case because the plaintiff failed to note in the certificate how many times he had violated the certificate requirement. The plaintiff then moved to dismiss without prejudice, which the trial court granted. A case dismissed without prejudice gives the plaintiff the opportunity to file it again, whereas a case dismissed with prejudice is over without any decision by the court as to the merits and cannot be refiled. The defendants appealed, and the Court of Appeals affirmed the trial court’s order. The Supreme Court then agreed to hear the case.

In a unanimous opinion written by Justice Jeffrey S. Bivins, the Supreme Court determined that the law does not require any disclosure of the number of prior violations of the certificate of good faith requirement if the disclosure would be that there were none. The Court pointed out that the law did not require disclosure as to whether or not there were any prior violations – it requires stating the number of violations. Bivins wrote, “if there have not been any prior violations, there is no ‘number of prior violations’ to disclose.“ Therefore, nothing in the law prevented the trial court from granting the plaintiff’s request for voluntary dismissal without prejudice.

Read the Timothy Davis v. Michael Ibach opinion, authored by Justice Bivins.