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Davis ex rel. Davis v. Ibach

Supreme Court of Tennessee, Jackson

May 29, 2015

TIMOTHY DAVIS EX REL. KATHERINE MICHELLE DAVIS
v.
MICHAEL IBACH, MD, ET AL

Session March 4, 2015

Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Appeals Affirmed. Appeal by Permission from the Court of Appeals, Western Section, Circuit Court for Dyer County. No. 09-CV-65. William B. Acree, Judge.

Charles M. Agee, Jr., and W. Lewis Jenkins, Jr., Dyersburg, Tennessee, for the appellee, Timothy Davis, as surviving spouse and next of kin of Katherine Michelle Davis, deceased.

Timothy G. Wehner and Ashley D. Cleek, Jackson, Tennessee, for the appellant, Michael Ibach, MD.

Robert A. Talley and Jennifer S. Harrison, Memphis, Tennessee, and Hubert B. Jones, Dyersburg, Tennessee, for the appellant, Martinson Ansah, MD.

JEFFREY S. BIVINS, J., delivered the opinion of the court, in which SHARON G. LEE, C.J., CORNELIA A. CLARK, and GARY R. WADE, JJ., joined. HOLLY KIRBY, J., not participating.

OPINION

JEFFREY S. BIVINS, J.

The Plaintiff filed a medical malpractice action against the Defendants. Following the Defendants' motions to dismiss the action, asserting that the certificate of good faith was noncompliant with the requirement in Tennessee Code Annotated section 29-26-122(d)(4) (Supp. 2008), the trial court granted the Plaintiff's request to voluntarily dismiss the action. The Defendants appealed, and the Court of Appeals affirmed the order of the trial court. We granted review to determine whether the requirement of Tennessee Code Annotated section 29-26-122(d)(4) that a certificate of good faith filed in a medical malpractice action disclose the number of prior violations of the statute by the executing party also requires disclosure of the absence of any prior violations of the statute. We hold that it does not. Accordingly, the judgment of the Court of Appeals is affirmed.

Factual and Procedural Background

Katherine Michelle Davis, the wife of Timothy Davis (" the Plaintiff" ), died on November 28, 2008, as a result of complications from a surgical procedure she underwent three days prior. The Plaintiff filed a medical malpractice complaint in the Dyer County Circuit Court on May 18, 2009, against Mrs. Davis' treating physicians, Drs. Michael Ibach and Martinson Ansah (" the Defendants" ),[1] for the wrongful death of his wife. On September 21, 2009, the Plaintiff filed a certificate of good faith pursuant to Tennessee Code Annotated section 29-26-122 of the Tennessee Medical Malpractice Act.[2] Tenn. Code Ann. § 29-26-122(a) (Supp. 2008).

In May 2013, the Defendants separately filed motions to dismiss the Plaintiff's cause of action for failure to comply with section 29-26-122(d)(4) because the Plaintiff's certificate of good faith " d[id] not list the number of prior violations of plaintiff's counsel." See id. § 29-26-122(d)(4) ( " A certificate of good faith shall disclose the number of prior violations of this section by the executing party." ). It is undisputed that the certificate of good faith filed by the Plaintiff did not include any statement regarding the executing party's number of prior violations of the statute.

Before the trial court ruled on the Defendants' motions to dismiss, the Plaintiff filed a Notice of Voluntary Dismissal Without Prejudice pursuant to Rule 41.01 of the Tennessee Rules of Civil Procedure. The Defendants filed a joint response in opposition to dismissal without prejudice, arguing that, because the certificate of good faith was not compliant with section 29-26-122(d)(4), the trial court was required to dismiss the action with prejudice. See id. § 29-26-122(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." ). Following a telephonic hearing, the trial court issued an order granting the Plaintiff's request for voluntary dismissal without prejudice. Regarding the issue of disclosure of prior violations, the trial court reasoned,

The statute requires that the certificate shall disclose the number of prior violations of the section by the executing party which is plaintiff's counsel. The record reflects that there were no prior violations by plaintiff's counsel. Accordingly, if there are no prior violations, there is nothing to disclose. The statute does not state that zero prior violations must be disclosed.[3]

The Defendants appealed, and the Court of Appeals affirmed the trial court's order granting the Plaintiff's voluntary dismissal without prejudice. See Davis v. Ibach, No. W2013-02514-COA-R3-CV, 2014 WL 3368847, at *3-4 (Tenn. Ct.App. July 9, 2014). The Court of Appeals " assume[d] arguendo , without deciding, that the certificate of good faith filed by the Plaintiff in this case was noncompliant with the statute because it did not state that the executing party had 'zero' prior violations." Id. at *2 n.8. However, the Court of Appeals affirmed the trial court on the alternative ground that, regardless of the alleged noncompliance of the certificate of good faith, the trial court had the authority to voluntarily dismiss the case without prejudice. Id. at *4 ...


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