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Posted by: Tanja Trezise on Oct 4, 2012

Court: TN Supreme Court

Attorneys 1:

Bill M. Wade, Memphis, Tennessee, for the appellant, Curtis Myers.

Attorneys 2:

Joseph M. Clark and Edd Peyton, Memphis, Tennessee, for the appellees, Arsalan Shirwany, M.D., and East Memphis Chest Pain Physicians, PLLC; Marty R. Phillips and Michelle Greenway Sellers, Memphis, Tennessee, for the appellee, Tennessee EM-I Medical Services, P.C.; W. Timothy Hayes, Jr., and Kimberly Cross Shields, Memphis, Tennessee, for the appellee, AMISUB (SFH), Inc., d/b/a St. Francis Hospital.

Judge(s): LEE

The plaintiff filed a medical malpractice action against several health care providers and subsequently dismissed the lawsuit. He re-filed the action after the legislature enacted Tennessee Code Annotated section 29-26-121, which requires a plaintiff who files a medical malpractice suit to give health care providers who are to be named in the suit notice of the claim sixty days before filing the suit; and Tennessee Code Annotated section 29-26-122, which requires a plaintiff to file with the medical malpractice complaint a certificate of good faith confirming that the plaintiff has consulted with an expert who has provided a signed written statement that there is a good-faith basis to maintain the action. The defendants moved to dismiss the complaint based on the plaintiff’s failure to comply with Tennessee Code Annotated sections 29-26-121 and 122. The trial court denied the motion, finding that the plaintiff’s original suit constituted substantial compliance with the statutes’ requirements and that extraordinary cause existed to excuse compliance with the requirements of Tennessee Code Annotated section 29-26-121. Upon interlocutory appeal, the Court of Appeals reversed. We hold that the statutory requirements that a plaintiff give sixty days presuit notice and file a certificate of good faith with the complaint are mandatory requirements and not subject to substantial compliance. The plaintiff’s failure to comply with Tennessee Code Annotated section 29-26-122 by filing a certificate of good faith with his complaint requires a dismissal with prejudice.