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Trial court applied wrong standard regarding denial of extension to file certificate of good faith

In Estate of Vickers v. Diversicare Leasing Corp. (Tenn. Ct. App. 6/13/2022), a dentist extracted 18 teeth from a nursing home resident who was taking blood thinners. The nursing home resident experienced heavy bleeding and was taken to a nearby emergency room. She was released the following day.

Eleven months later, plaintiff sent pre-suit notice letters to the dentists and the nursing home that arranged the dental care. Each notice included forms to release plaintiff’s medical records. Four months later, the plaintiff filed suit in Rutherford County Circuit Court alleging negligence and other claims. Plaintiff also filed a certificate of good faith in which plaintiff stated her attorney consulted with one or more experts who provided signed written statements confirming there was a good faith basis to maintain the action consistent with Tennessee Code Annotated § 29-26-115.

Defendants moved to dismiss alleging a failure to comply with T.C.A. § 29-26-121(a)(1), which requires plaintiffs to provide potential defendants with medical record release forms that comply with the Health Insurance Portability and Accountability Act of 1998 (“HIPAA”). The trial court rejected that claim since plaintiff’s daughter was agent under a power of attorney when she signed the forms. However, when plaintiff filed an amended complaint, she did not attached a new certificate of good faith, believing it was unnecessary. Defendants filed another motion to dismiss, which was granted, dismissing all claims. Plaintiff appealed that decision.

On appeal, the scope of authority granted in the power of attorney was questioned. The power of attorney was springing with respect to medical decisions. However, it also granted authority to access medical records and to prosecute legal actions. The Court of Appeals held that power to make health care decisions is different from power to access medical records, that the agent had authority to access records and that, since a plaintiff must access medical records to prosecute a medical negligence case, any other result would require the Court to re-write the power of attorney from authorizing the agent to prosecute legal actions to authorizing her to prosecute most legal actions. As a consequence, the agent had authority and complied with the terms of T.C.A. § 29-26-121(a)(1).

Regarding the amended complaint, the Court found it alleged a new claim and, as a result, a new certificate of good faith was required. However, the trial court applied the wrong standard when it denied plaintiff an extension of time to file a new certificate of good faith. A trial court’s decision to enlarge the time to file a certificate of good faith is discretionary. Discretionary decisions require “a conscientious judgment, consistent with the facts, that takes into account the applicable law. Nothing in the record suggested that the trial court discredited the explanation of Plaintiff’s counsel that the failure to file a certificate of good faith with the amended complaint was based on an honest belief that the statute did not require a new certificate of good faith. Instead, the trial court denied Plaintiff’s motion, explaining that “[s]imply believing that you have complied with the statute is not extraordinary cause.” The Court of Appeals found that the trial court applied an incorrect legal principle in denying Plaintiff’s motion for an extension of time in which to file the requisite certificate of good faith.

Tennessee law allows a trial court to grant relief to non-compliant plaintiffs who show extraordinary cause or for other good cause shown. “Good cause” has been defined as “a cause that comports with the purposes of the statute. Good cause is a less exacting standard than extraordinary cause. The Court then notice it has held that a party’s misunderstanding of the law may constitute “good cause” or even “extraordinary cause” when the law is unsettled, unclear, or potentially confusing. However, a professed misunderstanding of the law does not constitute “good cause” or “extraordinary cause” when the statute’s language is clear. Therefore, whether the belief of Plaintiff’s counsel that no certificate of good faith was required with the amended complaint was “good cause” for granting an extension depends on whether her counsel’s misinterpretation was reasonable. The Court vacated the decision below and remanded the case with instructions to apply the good cause standard in determining whether plaintff’s belief was reasonable in believing a new certificate of good faith was unnecessary.

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