Middle Section Reversed Award of Sanction in Med Mal Case for Alleged Abuse of Certificate of Good Faith

THERESA A. KERBY v. MELINDA J. HAWS, MD, ET AL.
Court: TN Court of Appeals

Attorneys:

Al H. Thomas, Memphis, Tennessee, for the appellant, Theresa A. Kerby.

Dixie W. Cooper, Kim J. Gruetzmacher, Nashville, Tennessee, for the appellees, Melinda J. Haws, MD, and The Plastic Surgery Center of Nashville, PLLC.

Judge: COTTRELL

A woman who suffered a series of persistent infections after surgery filed a malpractice complaint against the defendant surgeon. Her complaint alleged that the infections were cause by a small metal object that the defendant had negligently left in her body during the surgery. The plaintiff attached to her complaint the statutorily required certificate of good faith, which certified that she had consulted with an expert, who provided a signed statement confirming that he believed, on the basis of the medical records, that there was a good faith basis to maintain the action. See Tenn. Code Ann. § 29-26-122. After the object was discovered to be a surgical clip of a type that was designed to be retained by the patient’s body, the defendant filed a motion for summary judgment, which the plaintiff did not oppose. The defendant surgeon subsequently filed a motion for sanctions against the plaintiff under Tenn. Code Ann. § 29-26-122 (d)(3), which gives the court the authority to punish violations related to the certificate of good faith. The trial court granted the motion, and awarded the defendant doctor over $22,000 in attorney fees. We reverse.

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