                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                                        May 9, 2013 Session

 ANNE GROVES, INDIVIDUALLY AND AS NEXT OF KIN OF CHARLES
          GROVES v. CHRISTOPHER COLBURN, M.D.

                    Appeal from the Circuit Court for Davidson County
                     No. 10C3225     Amanda Jane McClendon, Judge


                    No. M2012-01834-COA-R3-CV - Filed July 30, 2013


Plaintiff filed a complaint against a hospital in which she asserted claims for medical
malpractice and wrongful death. She later amended her complaint to add a party and did not
contemporaneously file a certificate of good faith. The trial court dismissed the second
complaint with prejudice based upon the court’s determination that plaintiff failed to satisfy
the requirements of Tenn. Code Ann. § 29-26-122. We affirm the trial court.

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

A NDY D. B ENNETT, J., delivered the opinion of the Court, in which P ATRICIA J. C OTTRELL,
M.S., P.J., and R ICHARD H. D INKINS, J., joined.

Cyrus Lucius Booker, Nashville, Tennessee, for the appellant, Ann Groves, individually and
as next of kin of Charles Groves.

Jonathan Eric Miles, Phillip Lester North, and Lauren J. Smith, Nashville, Tennessee, for the
appellee, Christopher Colburn, M.D.

                                               OPINION

I. Facts and Procedural History

        This case involves a medical malpractice1 cause of action arising out of the


        1
         We note that 2012 Tennessee Public Acts Chapter 798 substituted the words “health care liability”
for the words “medical malpractice” in the statutes involved in this appeal. The complaint at issue here was
filed December 28, 2011, thus we refer to the cause of action as medical malpractice as did the statute in
                                                                                               (continued...)
defendant’s treatment of Deacon Charles Groves (“decedent”). According to the complaint,
on April 25, 2009, decedent presented to Skyline Medical Center Emergency Room with
complaints of severe nausea and vomiting. He was admitted to Skyline Medical Center for
evaluation. During his hospitalization, decedent fell from his hospital bed and sustained a
head abrasion which led to additional medical complications and, ultimately, his death.

        On August 20, 2010, Anne Groves (“Mrs. Groves”), decedent’s widow, filed her
initial complaint asserting medical malpractice and wrongful death claims against HTI
Memorial Corporation d/b/a Skyline Medical Center (“Skyline”). Mrs. Groves alleged “[t]he
Defendant’s medical personnel did not immediately notify a physician that Mr. Groves had
fallen and failed to request that a CT head scan be ordered in order to evaluate the condition
of Mr. Groves post fall.” The complaint included a certificate of good faith in accordance
with Tenn. Code Ann. § 29-26-122.

        Following discovery, Mrs. Groves determined that Dr. Christopher Colburn should
be added as a party to the lawsuit. On August 25, 2011, she sent Dr. Colburn notice of the
claim in compliance with Tenn. Code Ann. § 29-26-121. On November 9, 2011, Mrs.
Groves filed a motion to amend the complaint, which was granted by order entered
December 9, 2011. Mrs. Groves filed her amended complaint against Skyline and Dr.
Colburn on December 28, 2011 asserting that, “Nurse Victor Street alleges that [Dr. Colburn]
was contacted shortly after [decedent] had fallen, and that [Dr. Colburn] did not order any
test to assess [decedent’s] post-fall condition.” Mrs. Groves did not contemporaneously file
a certificate of good faith with the amended complaint.

        On February 15, 2012, Dr. Colburn moved for summary judgment arguing that Mrs.
Groves’s claim was barred by the statute of limitations and that her failure to file a certificate
of good faith entitled him to judgment as a matter of law. The next day, Mrs. Groves filed
a certificate of good faith that included Dr. Colburn as a defendant in the style of the case;
the content of this second certificate was the same as the original certificate filed with the
initial complaint.

       On May 31, 2012, the trial court entered an order granting summary judgment in favor
of Dr. Colburn. The court held that Mrs. Groves was required to file a second certificate of
good faith with her amended complaint.2 The court further held that the original certificate


        1
          (...continued)
effect at the time.
        2
            The court held that the statute of limitations had not expired as to Dr. Colburn. The court’s
                                                                                             (continued...)

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of good faith did not cover the addition of Dr. Colburn as a defendant and that the delayed
filing of the certificate did not satisfy the requirements of Tenn. Code Ann. § 29-26-122.

        On June 8, 2012, Mrs. Groves moved the court to alter, amend, or reconsider its
ruling, and moved, in the alternative, for leave to file a second amended complaint or an
interlocutory appeal. The trial court denied these motions and made its May 31 order a final
judgment as to Dr. Colburn.

        Mrs. Groves appeals.

II. Analysis

         The issue before us is whether Tenn. Code Ann. § 29-26-122 required Mrs. Groves
to file a second certificate of good faith when she amended her complaint to add a defendant.
Mrs. Groves asserts that the certificate she filed when she commenced the action against
Skyline was sufficient to cover the addition of Dr. Colburn as a party.

      To resolve this issue, we must construe Tenn. Code Ann. § 29-26-122(a). We do so
according to the well-settled principles articulated by our Supreme Court as follows:

        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 statute’s meaning.”

Myers v. AMISUB (SFH), Inc., 382 S.W.3d 300, 308 (Tenn. 2012) (citations omitted).
Statutory construction is a question of law that is reviewed de novo without a presumption
of correctness. Estate of French v. Stratford House, 333 S.W.3d 546, 554 (Tenn. 2011).

        Tennessee Code Annotated section 29-26-122(a) states:

        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


        2
         (...continued)
holding regarding the statute of limitations is not a subject of this appeal.

                                                      -3-
       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 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.

Our Supreme Court has previously 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

                                              -4-
(noting that the use of the word “shall” in Tenn. Code Ann. § 29-26-122(a) “indicates that
the legislature intended the requirements to be mandatory, not directory”).

        When Mrs. Groves filed the certificate with her initial complaint, she confirmed that
she or her counsel had consulted with at least one expert who provided a signed written
statement confirming there was a “good faith basis to maintain the action consistent with the
requirements of § 29-26-115.” 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 named defendant,
Skyline. The allegations in the initial complaint were directed toward nurses who “did not
immediately notify a physician that Mr. Groves had fallen.”3 When Mrs. Groves learned
additional information that implicated Dr. Colburn, she was required to consult with an
expert4 to determine whether there was a good faith basis to maintain a cause of action
against him and to file a certificate indicating as such with her amended complaint. Since
the allegations changed to claim physician liability based on different facts, a new certificate
based upon the expert’s review of newly alleged facts was necessary. Because Mrs. Groves
failed to file a certificate of good faith with her amended complaint, Tenn. Code Ann. § 29-
26-122(a) directed the trial court to dismiss the action.5

        We now consider Mrs. Groves’s argument that the trial court’s “[f]ailure to allow the
filing of an amended complaint and/or to grant other relief constitutes an abuse of
discretion.”

        To address Mrs. Groves’s contention, we turn to our Supreme Court’s decision in
Myers v. AMISUB (SFH), Inc., 382 S.W.3d 300 (Tenn. 2012) for guidance. In Myers, the
plaintiff filed a medical malpractice suit in 2007, which he later voluntarily dismissed.
Myers, 382 S.W.3d at 304. When the plaintiff re-filed his action in 2009, he failed to file
a certificate of good faith or pre-suit notice in compliance with Tenn. Code Ann. §§ 29-26-
121 and 122. Id. at 306. In determining that his complaint should be dismissed with
prejudice pursuant to Tenn. Code Ann. § 29-26-122, the Court reasoned as follows:


        3
          The complaint also asserted that Skyline: “knew or should have known of Mr. Groves’s need for
proper medical attention and monitoring due to his ‘fall risk’”; “failed to ensure that Mr. Groves’s Smart Bed
was turned on prior to his falling” ; and “chose to attempt to cover-up the initial acts of negligence by not
taking reasonable steps to immediately inform family members and/or any physician at the hospital.”
        4
          Asserting causes of action against multiple defendants who practice in differing specialties (such
as the doctor and the nurses in this case) may necessitate different experts to opine regarding the standard
of acceptable professional practice and proximate cause. See Tenn. Code Ann. § 29-26-115.
        5
          We believe this holding is consistent with Tenn. Code Ann. § 29-26-122(b), which requires a
defendant who alleges fault against a non-party to file a certificate of good faith with their answer.

                                                     -5-
       The legislature expressly provided the consequence of a plaintiff’s failure to
       file the required certificate of good faith with the complaint in Tennessee Code
       Annotated section 29-26-122, stating that “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.”
       Tenn. Code Ann. § 29-26-122(a) (emphasis added). Subsection (c) of the
       statute provides that “[t]he 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.” Id. at § 29-26-122(c) (emphasis added).
       Although the statutory scheme provides the trial court with discretion to, “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,” id., Mr. Myers did not file a
       motion seeking such relief. Consequently, his complaint must be dismissed
       with prejudice.

Id. at 311-12. The Court further emphasized that the legislature expressly provided for the
consequence of dismissal with prejudice in Tenn. Code Ann. § 29-26-122 but did not provide
for the same consequence when a plaintiff fails to comply with the pre-suit notice
requirement in Tenn. Code Ann. § 29-26-121. Id. at 312.

        Like the plaintiff in Myers, Mrs. Groves does not argue that her failure to file the
certificate resulted from a failure on the part of the defendants to provide records, nor did she
demonstrate “extraordinary cause” or any “other good cause.” We find the trial court
appropriately dismissed the complaint with prejudice in accordance with Tenn. Code Ann.
§ 29-26-122(a) and (c).

III. Conclusion

        For the foregoing reasons, we affirm the trial court’s dismissal of Mrs. Groves’s claim
against Dr. Colburn. Costs of appeal are assessed against appellant for which execution may
issue if necessary.


                                                               _________________________
                                                               ANDY D. BENNETT, JUDGE




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