Smith v. Outen

DEBRA SMITH ET AL. v. RONNIE OUTEN M.D. ET AL.

No. W2019-01226-COA-R3-CV

COURT OF APPEALS OF TENNESSEE AT JACKSON

July 14, 2020 Session

October 9, 2020

Appeal from the Circuit Court for Benton County

No. 16-CV-8

Charles C. McGinley, Judge

In this health care liability action, the defendant pharmacists were sued for dispensing the wrong medication to the plaintiff. The defendants then alleged comparative fault against Appellant doctor, who was treating the patient. The plaintiff amended her complaint to allege fault against the doctor. However, the doctor was eventually granted summary judgment when no expert was produced to support the claim. Appellant doctor then sought sanctions pursuant to Tennessee Code Annotated section 29-26-122(d)(3) on the basis that, inter alia, the defendants' certificate of good faith was supported by the written statement of an incompetent expert witness. The trial court denied the motion for sanctions. We affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed and Remanded

J. STEVEN STAFFORD, P.J., W.S., delivered the opinion of the court, in which KENNY ARMSTRONG and CARMA DENNIS MCGEE, JJ., joined.

J. Eric Miles and Brigham A. Dixson, Nashville, Tennessee, for the appellant, Ronnie Outen, M.D.

Minton Philip Mayer and Colleen M. Schuetz, Memphis, Tennessee, for the appellees, Herndon Pharmacy, PLLC, and R. Stephen Herndon.

Suzanne G. Marsh, Daniel Lynch Nolan, Jr., Clarksville, Tennessee, for the appellees, Leitner, Williams, Dooley & Napolitan, PLLC.

OPINION

BACKGROUND

Debra and Anthony Smith ("Plaintiffs") filed a complaint in the Benton County Circuit Court ("the circuit court") in 2016 against Herndon Pharmacy, LLC and R. Stephen Herndon (together, "Defendants"), alleging that Defendants had dispensed the wrong medication, Mirtazapine, to Mrs. Smith, causing her injury.¹ In her Complaint, Mrs. Smith alleged that her prescribing physician, Ronnie Outen, M.D. ("Dr. Outen" or "Appellant"), "immediately stopped [her] from taking Mirtazapine any further" when he realized she had been given it erroneously. Defendants, by and through counsel, Bruce D. Gill of Leitner, Williams, Dooley & Napolitan, PLLC (together with Mr. Gill, "Appellees"), filed an answer alleging comparative fault as to Appellant.² Specifically, based in part on Mrs. Smith's assertion in her complaint that Appellant ordered her to immediately stop taking the Mirtazapine rather than taper off of it, Defendants alleged that Appellant breached his duty of care to Mrs. Smith, resulting in her injuries.³ Pursuant to Tennessee Code Annotated section 29-26-122, Mr. Gill filed a certificate of good faith to support Defendants' allegation of non-party comparative fault against Appellant in their answer. The certificate stated in relevant part:

1. I have consulted with one (1) or more experts, which may include the Defendant filing the Certificate of Good Faith, who have provided a signed written statement confirming that upon information and belief they:

(A) Are competent under Tenn. Code Ann. § 29-26-115 to express opinion(s) in the case; and

(B) Believe, based on the information reviewed concerning the care and treatment of the Plaintiff for the incident(s) at issue, that there is a good faith basis to allege such fault against another consistent with the requirements of Tenn. Code Ann. § 29-26-115.

Plaintiffs thereafter amended their complaint to name Appellant as a defendant, based on Appellees' and Defendants' allegations of comparative fault against Appellant.Appellant denied fault in his answer to the amended complaint and ultimately moved for summary judgment in the circuit court, after neither Plaintiffs nor Defendants disclosed expert witnesses who would offer testimony against Appellant. Neither Defendants nor Plaintiffs filed documents in opposition to Appellant's motion for summary judgment, and the circuit court granted the motion in an agreed order on November 19, 2018, dismissing Appellant from the case with prejudice. Ultimately, Plaintiffs and Defendants settled, and the case against Defendants was also dismissed with prejudice on or about May 21, 2019.

Prior to the dismissal, however, on December 13, 2018, Appellant filed a motion to compel Defendants to disclose the signed written statement of the expert relied on in executing Mr. Gill's certificate of good faith, pursuant to section 29-26-122(d)(2). Defendants disclosed their expert statement,⁴ which was signed by Mr. Herndon. Appellant then filed a motion in the circuit court to deem the certificate of good faith insufficient and impose sanctions on Appellees for violating sections 29-26-122(d)(2) and (3). Therein, Appellant argued that Mr. Herndon's statement was the sole and inadequate basis for Mr. Gill's certificate of good faith, because Mr. Herndon is unqualified to testify about the standard of care applicable to a family physician such as Appellant or medical causation of injuries, as admitted in his own deposition; Mr. Herndon lacked a factual basis for alleging comparative fault against Appellant; and his written statement failed to meet the requirements of section 29-26-122. Appellees responded, asking the circuit court to deem the certificate of good faith sufficient and deny the motion for sanctions. According to Appellees, Mr. Herndon was competent to provide the written statement underlying the certificate of good faith, and both his written statement and the certificate of good faith complied with the law.

The circuit court heard arguments on May 21, 2019 on Appellant's motion for sanctions, and entered an order denying the imposition of sanctions on June 10, 2019. The trial court found that while it would have been better practice for Appellees to have sought a medical professional's opinion to support the certificate of good faith, the certificate based on Mr. Herndon's opinion nonetheless sufficiently complied with section 29-26-122 and exhibited no evidence of bad faith to support a finding that section 29-26-122 was violated. The circuit court gave special weight to Mr. Gill's affidavit in making its decision, and noted that as soon as it was discovered that Appellant bore no responsibility in the case, summary judgment was agreed to. Appellant then filed a notice of appeal.

While this appeal was pending, on September 18, 2019, Plaintiffs gave notice to the circuit court of the filing of the demand package that Plaintiffs' counsel sent to Defendants' insurance company on November 13, 2015, and the insurance company's response to the demand package, sent to Plaintiffs' counsel on December 4, 2015 (collectively, "the Settlement Documents"). The cover page on the demand package states as follows:

This is a Demand Letter sent by Attorney David R. Grimmett of the Grimmett Law Firm, PLLC. It is sent pursuant to Rule 408 of the Tennessee Rules of Evidence. Under no circumstances should it be considered admissible as part of the claim contained herein. The purpose of this Demand Letter is to resolve litigation which is currently pending or about to begin.

Similarly, the insurance company's response letter stated that its response was to be used for settlement purposes only. The demand package also included a summary of the healthcare services that Mrs. Smith received, which was labeled as created by Plaintiffs' counsel. On September 23, 2019, Appellant filed a supplemental designation of the record, designating the Settlement Documents for inclusion in the record on appeal. Appellees responded with a Tennessee Rule of Civil Procedure Rule 12.06 motion to strike Plaintiffs' notice of filing the Settlement Documents and a response to Appellant's designation of the Settlement Documents as part of the appellate record. Appellant attached an affidavit of Plaintiffs' counsel to his response, wherein Plaintiffs' counsel swore that he had provided Defendants' insurance carrier with a complete copy of Appellant's chart for Mrs. Smith. Appellees then made another Rule 12.06 motion to strike Plaintiffs' counsel's affidavit. The circuit court heard oral argument on the motions to strike on October 21, 2019, and entered an order denying them on November 6, 2019. The court gave no reasoning for its decision. The Settlement Documents are therefore included in the record on appeal.

ISSUES PRESENTED

Appellant and Appellees each raise issues on appeal, which we consolidate and restate as follows.⁵

1. Whether the circuit court erred in denying Appellant's motion to deem thecertificate of good faith insufficient and impose sanctions.

2. Whether the circuit court properly included the Settlement Documents in the record on appeal.

DISCUSSION

This case provides this Court with one of the first opportunities to consider a motion for sanctions under Tennessee Code Annotated section 29-26-122. See also Kerby v. Haws, No. M2011-01943-COA-R3-CV, 2012 WL 6675097, at *7 (Tenn. Ct. App. Dec. 20, 2012) (involving this issue; discussed in detail, infra); Jackson v. HCA Health Servs. of Tennessee, Inc., 383 S.W.3d 497, 506 (Tenn. Ct. App. 2012) (same). The resolution of this case therefore depends on the proper interpretation of section 29-26-122. Statutory interpretation is a question of law, and we review it de novo without a presumption of correctness. Kerby, 2012 WL 6675097, at *7 (citing Gleaves v. Checker Cab Transit Corp., Inc., 15 S.W.3d 799, 802 (Tenn. 2000); Myint v. Allstate Ins. Co., 970 S.W.2d 920, 924 (Tenn. 1998)). In interpreting a statute, we must give effect to the legislature's intent. Id. (internal citations omitted). "The legislative intent and purpose are to be ascertained primarily from the natural and ordinary meaning of the statutory language, without a forced or subtle interpretation that would limit or extend the statute's application." Id. (citing State v. Blackstock, 19 S.W.3d 200, 210 (Tenn. 2000)).

Our analysis therefore must begin with the language of the relevant statute. In pertinent part, section 29-26-122(d) provides as...