Sandi D. JACKSON v. HCA HEALTH SERVICES OF TENNESSEE, INC., d/b/a Centennial Medical Center et al.
Court of Appeals of Tennessee, Middle Section, at Nashville.
April 18, 2012.
Permission to Appeal Denied by Supreme Court Aug. 16, 2012.
383 S.W.3d 497
Feb. 29, 2012 Session.
C.J. Gideon, Jr., Dixie W. Cooper and Brian P. Manookian, Nashville, Tennessee, for the appellees, HCA Health Services of Tennessee, Inc., d/b/a Centennial Medical Center and d/b/a/ Hendersonville Medical Center.
Phillip North, J. Eric Miles and Lauren Smith, Nashville, Tennessee, for the appellees, Joseph Magoun, M.D., Claude L. Ferrell, L.D., Jonathan Grooms, CRNA, Anesthesia Medical Group, P.C., Louis Brusting, III, M.D., and the Heart and Vascular Team, P.L.L.C.
Robert E. Cooper, Jr., Attorney General and Reporter; Joseph F. Whalen, Associate Solicitor General; and Stephanie A. Bergmeyer, Assistant Attorney General, for the intervenor, State of Tennessee.
OPINION
FRANK G. CLEMENT, JR., J., delivered the opinion of the Court, in which RICHARD H. DINKINS, J., and ROBERT W. WEDEMEYER, SP. J., joined.
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
In August of 2009, Sandi D. Jackson (“Plaintiff“) filed a pro se complaint against numerous defendants asserting a medical malpractice claim for injuries allegedly arising out of a “minimally invasive, robot-assisted mitral valve repair and atrial cryoblation” that Plaintiff underwent at Centennial Medical Center in August 2008 and for subsequent care that was due to an infection that occurred after her initial discharge from the hospital. The 42-page complaint contains numerous allegations against each of the individual and organizational defendants, and requests $14 million in compensatory damages and $4 million in punitive damages.
The defendants, HCA Health Services of Tennessee, Inc., d/b/a Centennial Medical Center and d/b/a/ Hendersonville Medical Center; Joseph Magoun, M.D.; Claude L. Ferrell, L.D.; Jonathan Grooms, CRNA; Anesthesia Medical Group, P.C.; Louis Brusting, III, M.D.; and the Heart and Vascular Team, P.L.L.C., (collectively “Defendants“) each filed
Plaintiff re-filed this action on December 1, 2010, with the timely filing of a new complaint and summons, however, a certificate of good faith was not filed with the complaint. Defendants filed motions to dismiss due to Plaintiff‘s failure to file a certificate of good faith with the filing of the complaint, which was required pursuant to a 2009 amendment to
Because the constitutionality of a state statute was challenged, the State of Tennessee filed a motion to intervene in the action to defend the constitutionality of the statute, and permission to intervene was granted.
Following a hearing on the several motions, the trial court dismissed Plaintiff‘s medical malpractice claims due to her failure to provide a certificate of good faith as required by
ISSUES
Plaintiff contends that
STANDARD OF REVIEW
The issues presented here constitute a facial challenge to a statute, meaning they involve a claim “that the statute fails a constitutional test and should be found invalid in all applications.” Waters v. Farr, 291 S.W.3d 873, 921 (Tenn.2009) (citing United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987)).
A facial challenge to a statute is the most difficult challenge to mount successfully. The presumption of a statute‘s constitutionality applies with even greater force when a facial challenge is made. Accordingly, the challenger must establish that no set of circumstances exists under which the statute would be valid. Stated another way, the challenger must demonstrate that the law cannot be constitutionally applied to anyone. Courts considering a facial challenge to a statute should proceed with caution and restraint because holding a statute facially unconstitutional may result in unnecessary interference with legitimate governmental functions. Accordingly, the courts view facial invalidity as “manifestly strong medicine” and invoke it sparingly and only as a last resort.
There are at least three reasons for the courts’ reticence to invalidate statutes on their face. First, claims of facial invalidity often rest on speculation and thus run the risk of the “premature interpretation of statutes on the basis of factually barebones records.” Second, facial challenges “run contrary to the fundamental principle of judicial restraint” by inviting the courts to “formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.” Third, “facial challenges threaten to short circuit the democratic process by preventing laws embodying the will of the people from being implemented in a manner consistent with the Constitution.”
Thus, a successful facial constitutional challenge results in the wholesale invalidation of the statute. While passing on the validity of a statute wholesale may be efficient in the abstract, any gain is often offset by losing the lessons taught by the particular. For this reason, many courts view “as applied” chal
Waters, 291 S.W.3d at 921-923 (internal citations and footnotes omitted).
ANALYSIS
We begin our analysis with a recitation of the statutory scheme being challenged, specifically
(a) In any medical malpractice action in which expert testimony is required by
§ 29-26-115 , the plaintiff or plaintiff‘s counsel shall file a certificate of good faith with the complaint. 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. The certificate of good faith shall state that:(1) The plaintiff or plaintiff‘s counsel has consulted with one (1) or more experts who have provided a signed written statement confirming that upon information and belief they:
(A) Are competent under
§ 29-26-115 to express an opinion or opinions in the case; and(B) Believe, based on the information available from the medical records concerning the care and treatment of the plaintiff for the incident or incidents at issue, that there is a good faith basis to maintain the action consistent with the requirements of
§ 29-26-115 ; or(2) The plaintiff or plaintiff‘s counsel has consulted with one (1) or more experts who have provided a signed written statement confirming that upon information and belief they:
(A) Are competent under
§ 29-26-115 to express an opinion or opinions in the case; and(B) Believe, based on the information available from the medical records reviewed concerning the care and treatment of the plaintiff for the incident or incidents at issue and, as appropriate, information from the plaintiff or others with knowledge of the incident or incidents at issue, that there are facts material to the resolution of the case that cannot be reasonably ascertained from the medical records or information reasonably available to the plaintiff or plaintiff‘s counsel; and that, despite the absence of this information, there is a good faith basis for maintaining the action as to each defendant consistent with the requirements of
§ 29-26-115 . Refusal of the defendant to release the medical records in a timely fashion or where it is impossible for the plaintiff to obtain the medical records shall waive the requirement that the expert review the medical record prior to expert certification.. . . .
(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. The failure of a defendant to file a certificate of good faith in compliance with this section alleging the
fault of a non-party shall, upon motion, make such allegations subject to being stricken with prejudice unless the plaintiff consents to waive compliance with this section. If the allegations are stricken, no defendant, except for a defendant who complied with this section, can assert, and neither shall the judge nor jury consider, the fault, if any, of those identified by the allegations. The court may, upon motion, grant an extension within which to file a certificate of good faith if the court determines that a health care provider who has medical records relevant to the issues in the case has failed to timely produce medical records upon timely request, or for other good cause shown.
I.
Plaintiff contends that
A similar challenge to requirements under the 1975 version of the medical malpractice act was asserted in Harrison v. Schrader, 569 S.W.2d 822 (Tenn.1978). In Harrison, the plaintiff challenged the constitutionality of
In the complaint, the Harrisons asserted that, after performing a vasectomy upon Mr. Harrison in 1972, the appellee, Dr. Schrader, informed him that as a result of the operation he would be sterile; however, on December 18, 1975, they learned, as the court said, “to his consternation and her dismay,” that Mrs. Harrison was pregnant. Id. at 824. Subsequent tests revealed that Mr. Harrison was not sterile. Id. On July 29, 1976, he underwent a second vasectomy, at which time, it was discovered that the first surgery had been negligently performed. Id. at 824. On September 22, 1976, Mr. and Mrs. Harrison commenced their medical malpractice action. Id.
Dr. Schrader moved to dismiss the complaint on the ground that it had been filed beyond the statute of repose, which was three years after the alleged negligent act or omission. Id. (citing
In its analysis, the Supreme Court first determined “what standard of review must be utilized in ascertaining the statutes constitutionality.” Id. at 825. The Harrisons had asserted that the statutory scheme afforded physicians a “favored status,” the victims of physicians malpractice suffered a “disfavored status,” and thus, the statute “must be subjected to [strict] scrutiny.” The Supreme Court expressly rejected this argument and stated that “[a] classification will be subject to strict scrutiny only when it impermissibly interferes with the exercise of a fundamental right (e.g., voting, interstate travel) or operates to the peculiar disadvantage of a suspect class (e.g., alienage, race).”3 Id. at 825 (citing San Antonio Indep. School District v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973)). Following an analysis, the court concluded that the test to be applied to determine the validity of the classification at issue was the reasonable basis test. Id. “If it has a reasonable basis, it is not unconstitutional merely because it results in some inequality. Reasonableness depends upon the facts of the case and no general rule can be formulated for its determination.” Id. at 825-26.
Applying the reasonable basis test, the Supreme Court reasoned it could not say “there was no reasonable or rational basis for the distinction made between actions for medical malpractice and those for personal injuries caused by other means or for the separate and distinct treatment accorded ‘health care providers.‘”4 Id. at 826. The court commented:
The legislature could have seen in this situation a threat not only to the medical profession and its insurers, but also to the general welfare of the citizens of this state. As liability costs skyrocketed, so would the cost of health care. Physicians would be encouraged to cease practice or contemplate early retirement, and the number of available physicians would decrease. The practice of “defensive medicine,” spawned by fear of costly legal actions, would lead to a lower quality of health care in general. These considerations may or may not have been valid; however, it is apparent that they were accepted by the legislature and formed the predicate for its action.
In addition, it could be argued that to the extent that safe estimates required by actuarial uncertainty, aggravated by the extended period during which a physician could be subject to potential liability, contributed to the increase in malpractice insurance costs, “it is understandable that a legislature intent upon halting such phenomenal increases would seek some method to increase the certainty of such estimates,” i.e., an absolute three-year limit on the time within which actions could be brought. Note, Malpractice in Dealing with Medical Malpractice??, 6 Mem.St.L.Rev. 437, 459 (1976).
Id. at 826 (footnote omitted).
After considering the foregoing principles and facts, the Harrison court found “that the importance to the public of good health care and the problems which arise when malpractice claims are brought against health providers after the passage of many years constitute sufficient reasons for the legislature to place them in a separate classification for this purpose.” Id. at 827. Based upon this finding, the court reached the following conclusion:
This Court cannot say that there is no reasonable basis for the separate classification of health care providers or that this classification bears no reasonable relation to the legislative objective of reducing and stabilizing insurance and health costs and protecting the public as a whole. Indeed, at the time
Sec. 23-3415(a) was passed, “there was indubitably a valid reason for the distinction made” by the statute.
The burden of showing that a classification is unreasonable and arbitrary is on the person challenging the statute and “if any state of facts can reasonably be conceived to justify the classification or if the reasonableness of the class is fairly debatable, the statute must be upheld.” Id. at 826. “Before the classification will be held to violate the equal protection guaranty, it must be shown that it has no reasonable or natural relation to the legislative objective.” Id. In addition, the statute must apply alike to all who fall within, or can reasonably be brought within the classification. Id. (citing Massachusetts Mut. Life Ins. Co. v. Vogue Inc., 54 Tenn. App. 624, 393 S.W.2d 164 (1965)).
As was the environment at the time of Harrison, the legislature perceived a threat in 2009, not only to the medical profession and its insurers, but to the general welfare of the citizens of this state because, believing that as liability costs increase, so does the cost of health care and the practice of “defensive medicine,” spawned by the fear of costly legal actions, may lead to a lower quality of health care in general. Whether these considerations are or are not valid is not for this court to determine. Id. at 828. What is relevant and controlling is that they were accepted by the legislature and formed the predicate for its action.
Accordingly, we cannot say that there is no reasonable basis for the separate classification of health care providers or that this classification bears no reasonable relation to the legislative objective of reducing and stabilizing health costs and protecting the general public. Borrowing a phrase from Harrison, at the time Section 122(a) was enacted, “there was indubitably a valid reason for the distinction made” by the statute. Id. at 827.
II.
We shall now address Plaintiff‘s contention that
Plaintiff contends that
Contrary to Plaintiff‘s assertion, we do not construe Section 122 as being in conflict with
More importantly, requiring a plaintiff to conduct a due diligence inquiry prior to filing a complaint is not in conflict with the Tennessee Rules of Civil Procedure adopted by the Supreme Court of Tennessee. In fact, requiring a plaintiff to exercise due diligence prior to the filing of the complaint is entirely consistent with the rules.
By presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the person‘s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances,
(1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;
(2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law;
(3) the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and
(4) the denial of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.
Although
[T]hat there are facts material to the resolution of the case that cannot be reasonably ascertained from the medical records or information reasonably available to the plaintiff or plaintiff‘s counsel; and that, despite the absence of this information, there is a good faith basis for maintaining the action as to each defendant consistent with the requirements of
§ 29-26-115 .
For the reasons stated above, we have concluded the requirement in
IN CONCLUSION
The judgment of the trial court is affirmed and this matter is remanded with costs of appeal assessed against the plaintiff, Sandi Jackson.
Notes
The statute of limitations in malpractice actions shall be one (1) year as set forth ins 28-304 ; provided, however, that in the event the alleged injury is not discovered within the said one (1) year period, the period of limitation shall be one (1) year from the date of such discovery; provided further, however, that in no event shall any such action be brought more than three (3) years after the date on which the negligent act or omission occurred except where there is fraudulent concealment on the part of the defendant in which case the action shall be commenced within one (1) year after discovery that the cause of action exists; and provided still further that the time limitation herein set forth shall not apply in cases where a foreign object has been negligently left in a patient‘s body in which case the action shall be commenced within one (1) year after the alleged injury or wrongful act is discovered or should have been discovered.
This enactment was passed as a part of Chapter 299, Public Acts of 1975, designed by the legislature to meet the so-called “medical malpractice crisis” of the late 1960‘s and early 1970‘s. On its face, the section recognized the applicability of the general statute of limitations (Id. at 824 (footnote omitted).Sec.28-304, T.C.A. ) and the rule, first stated by this Court in Teeters v. Currey, 518 S.W.2d 512 (Tenn.1974), that in malpractice actions the statute of limitations begins to run from the date the injury is, or should have been, discovered. The legislature, however, proceeded to place an absolute three-year limit upon the time within which malpractice actions, with two exceptions, could be brought. It is this limit, applicable only in medical malpractice actions, that appellants challenge as unconstitutional.