Zero Is Not a Number For Purposes of Tennessee’s Health Care Liability Act, Says Tennessee Supreme Court

By Daniel A. Horwitz

Is zero a number?  The age-old question has frequently engendered debate among mathematicians, logicians and philosophers.  When it comes to disclosing past violations of the “certificate of good faith” requirement  of Tennessee’s Health Care Liability Act, however, the Tennessee Supreme Court has officially spoken:  No, zero is not a number, and if a person has never previously violated Tenn. Code Ann. § 29-26-122, then the person has nothing to disclose.

Under Tennessee law, litigants who file claims for medical malpractice – now known as “health care liability actions” – are generally required to file a “certificate of good faith” with their complaint.  See Tenn. Code Ann. § 29-26-122(a) (“In any health care liability 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.”).  The primary purpose of the certificate of good faith requirement is to prevent people from filing frivolous lawsuits against doctors and health care providers.[1]  As a result, anyone who wants to sue a doctor or a health care provider under the Health Care Liability Act is required to file a certificate of good faith along with their complaint that both:

  1.  States that they have consulted with at least one qualified expert witness who has provided a signed, written statement confirming “that there is a good faith basis to maintain the action[.]”  See Tenn. Code Ann. § 29-26-122(a)(1)-(2); and
  1.  Discloses “the number of prior violations” of the certificate of good faith requirement that have been committed by the executing party.  See Tenn. Code Ann. § 29-26-122(d)(4).

If a plaintiff has never previously violated the certificate of good faith requirement, however, then what is “the number of prior violations” that he or she is required to disclose?  In order to comply with Tenn. Code Ann. § 29-26-122(d)(4), does a plaintiff who has never violated the law have to state: “I have been found in violation of T.C.A. § 29–26–122 zero times”?  See Stovall v. UHS Lakeside, LLC, No. W2013-01504-COA-R9CV, 2014 WL 2155345, at *15 (Tenn. Ct. App. Apr. 22, 2014).

According to the Tennessee Supreme Court, the answer is no.  So says Justice Bivins’ unanimous opinion in Timothy Davis ex rel. Katherine Michelle Davis v. Michael Ibach, MD, et al., which held that: “the requirement of Tennessee Code Annotated section 29-26-122(d)(4) that a certificate of good faith disclose the number of prior violations of the statute does not require disclosure of the absence of any prior violations of the statute.”

As a result, if a plaintiff has never previously violated Tenn. Code Ann. § 29-26-122, then according to the Tennessee Supreme Court, “there is no ‘number of prior violations’ to disclose.”  Id.  Thus, at least for purposes of medical malpractice litigation in Tennessee, the answer is clear:  Zero is not, in fact, a number after all.

[1] Unfortunately, a second, less-noble purpose of this requirement is to create a fatal procedural pitfall for plaintiffs that often causes cases to be dismissed on grounds that are completely unrelated to the merits of a plaintiff’s claim.  See Daniel A. Horwitz, The Law of Unintended Consequences: Avoiding the Health Care Liability Act Booby Trap (March 12, 2015), available at

Read the Tennessee Supreme Court’s unanimous opinion in Timothy Davis ex rel. Katherine Michelle Davis v. Michael Ibach, MD, et alhere.

Questions about this article?  Email Daniel Horwitz at

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