The United States Court of Appeals for the Sixth Circuit (“Federal Appellate Court”), in its unpublished opinion filed on August 26, 2020, affirmed the dismissal of a medical malpractice wrongful death case involving the Veteran’s Administration filed pursuant to the Federal Tort Claims Act, holding that the dismissal occurred prior to a precedential ruling in another case that held that state laws requiring affidavits in medical malpractice cases do not apply to federal medical malpractice cases.
The plaintiff had filed her federal medical malpractice case for allegedly negligent medical care her husband received at the VA Medical Center in Nashville, Tennessee from 2008 to 2016. In 2010, her husband was diagnosed with a moderately enlarged spleen, for which he received no treatment. In 2014, he was diagnosed with hypersplenism, a condition that can lead to cirrhosis of the liver and other significant complications. Despite these diagnoses, the plaintiff alleges that her husband received no treatment and that he died from complications reasonably traceable to his enlarged spleen.
The plaintiff originally filed an administrative complaint with the VA on June 4, 2018. After the VA failed to respond, she filed a complaint in the United States District Court for the Middle District of Tennessee.
Under Tennessee law, “[i]n any health care liability action in which expert testimony is required by [Tennessee law], the plaintiff or plaintiff’s counsel shall file a certificate of good faith with the complaint.” Tenn. Code Ann. § 29-26-122(a). Absent some exceptions not relevant to this appeal, a plaintiff’s failure to file a certificate of good faith requires dismissal with prejudice. § 29-26-122(c).
Because the plaintiff failed to file a certificate of good faith, the U.S. district court dismissed her complaint, holding that “a health care liability action not accompanied by a certificate of good faith must, upon motion, be dismissed with prejudice.” The plaintiff appealed.
Federal Court Opinion
The Federal Appellate Court stated that liability for suits brought under the FTCA is governed by state law and that the substantive law of Tennessee applied to the plaintiff’s claims because that is where the alleged omission occurred. 28 U.S.C. § 1346(b)(1). Nonetheless, federal law still governs the procedural aspects of the case.
In Gallivan v. United States, 943 F.3d 291, 294 (6th Cir. 2019), the Federal Appellate Court held that a similar Ohio affidavit requirement could not be applied in federal court in a case brought under the FTCA.
Because the plaintiff failed to raise the argument that the good-faith affidavit requirement should not apply in federal court in her principal brief and only presented the argument at the request of the appellate panel, the Federal Appellate Court stated that its review is limited to plain error. An error is ‘plain’ when, at a minimum, it is clear under current law.
The Federal Appellate Court held that because the law was not clear at the time that the district court dismissed the plaintiff’s complaint, the district court did not commit plain error by dismissing her complaint for failure to comply with the Tennessee Health Care Liability Act, Tenn. Code Ann. § 29-26-122 (“THCLA”), explaining that the U.S. district court dismissed the plaintiff’s complaint on October 17, 2019, and Gallivan was not decided until November 7, 2019. “When the district court dismissed [the plaintiff’s] complaint, the law in the Sixth Circuit was far from clear that the THCLA’s good-faith affidavit requirement should not apply in federal court. At least three unpublished Sixth Circuit decisions, issued prior to the district court’s ruling and before Gallivan, had construed the good-faith certificate requirement as substantive and applied the THCLA … Therefore, it was not plainly erroneous for the district court to apply the THCLA’s good-faith-certificate requirement to [the plaintiff’s] suit.”
Source Brusch v. United States of America, No. 19-6308.
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