How many times have courts assured you that the legislature says what it means and means what it says? Personally, I’ve lost count. The notion is seared into my legal psyche. So when Tenn. Code Ann. § 29-26-122* says med-mal plaintiffs can waive a defendant’s obligation to file a certificate of good faith for comparative tortfeasors, I kinda assumed that … oh, I dunno… maybe plaintiffs could waive a defendant’s obligation to file a certificate of good faith for comparative tortfeasors.

“Not so,” says the Middle Section of Tennessee’s Court of Appeals. I just had occasion to write a brief analyzing the recent opinion in Sirbaugh v. Vanderbilt, and it was like eating soup with a fork. According to Sirbaugh, when the legislature allows plaintiffs “to waive compliance,” what that reeeeally means is plaintiffs are still “obligated to file a statutorily compliant certificate of good faith.” Square peg, meet round hole. What am I missing? COA dropped the ball on this one, IMHO. And yet, the Supremes punted. So that bit of judicial wizardry has earned its ink in the reporters. This, even though the Supreme Court just a few years earlier observed (albeit in a footnote) that there’s “no similar statutory obligation imposed on plaintiffs who amend their complaint pursuant to Tenn.Code Ann. § 20-1-119 after the original defendant has asserted a comparative fault defense.” Go figure.

*P.S. – Apparently Justia hasn’t updated its site with the most recent changes to the Health Care Liability Act. Get wit’ it, Justia! Here’s an alternative, but unfortunately there’s no direct link. Navigate to Title 29, then Chapter 26, then Section 122…

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