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Sunday, April 22, 2012

Medical Malpractice: New Opinion on Certificates of Good Faith

The Tennessee Court of Appeals, Middle Section, recently issued its opinion in Jackson v. HCA Health Serv's of Tenn., Inc., No. M2011-00582-COA-R3-CV (Tenn. Ct. App. Apr. 18, 2012).  The summary from the opinion reads as follows:
This appeal arises from the dismissal of a medical malpractice action due to the plaintiff’s failure to provide a certificate of good faith. All defendants filed Tennessee Rule of Civil Procedure 12.02(6) motions to dismiss the medical malpractice action based upon Tennessee Code Annotated § 29-26-122(a), which provides: “If the certificate is not filed with the complaint, 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.” Because the plaintiff failed to make a showing that the omission was due to the failure of any healthcare provider to provide records or demonstrate extraordinary cause, the trial court granted the motions and dismissed the case. The plaintiff asserts on appeal that the statutory requirement violates the separation of powers clause and that it violates the due process and equal protection guarantees of the constitution of Tennessee by treating plaintiffs in suits for medical negligence differently from plaintiffs in other civil litigation and by allegedly restricting access to the courts. Finding no constitutional infirmities, we affirm.
Here's a link to the opinion:

What is perplexing about this opinion is the fact that the portion of it that deals with the separation-of-powers issue lacks any citation to any law on the subject.  It is noteworthy that other states have found such a law clearly unconstitutional based upon a violation of separation of powers.  And I don't know if those other decisions were brought to the court's attention or not; or if they were just ignored by the court.  

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