By Darryl Weiman, M.D., J.D.
Newsletter from the Standards and Ethics Committee for the Eastern Cardiothoracic Surgical Society
August 2026
In an effort to decrease the number of frivolous lawsuits against health care providers, the Tennessee Health Care Liability Act (HCLA) requires a certificate of good faith be attached to a filing of a medical malpractice suit. The certificate asserts that a “qualified medical expert has reviewed the facts and confirmed a valid basis for the lawsuit.”[1]
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 section 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, there is a good faith basis to maintain the action consistent with the requirements of section 29-26-115.[2]
Under the law, a malpractice suit which does not have the certificate will be dismissed with prejudice unless an exception to the rule applies. The exceptions focus on a defendant who has not timely released the medical records to the plaintiff.
In a recent malpractice action, a patient sued his dentist, claiming that the dentist was negligent in failing to diagnose and treat a cavity.[3] This was a pro se action which meant that the patient was acting as his own lawyer. It was not surprising that he did not know the requirements of the law and it was also not surprising that the general sessions court dismissed the claim.
The facts of the case are as follows. The patient, Mr. Engle, sued September 2023 in general sessions court seeking $25,000 for “personal injury—medical malpractice, loss of enjoyment, emotional distress, pain and suffering, current and future costs of recovery.” The patient first sought help in 2020 for a loose bridge of the left lower jaw. Dr. Payne took x-rays but did not see anything that could explain the complaints. In December 2021, x-rays were obtained because of complaints of pain and temperature sensitivity of the left jaw. Again, Dr. Payne did “not report any concerns with the area.”[4]
Mr. Engle continued seeing Dr. Payne with no relief until August 2022 when he had to change dentists due to a change in insurance. The new dentist took x-rays which showed a decayed tooth that had to be removed. Subsequent bone grafts and implants were needed to replace the tooth. The removal of the decayed tooth brought some relief, but several medical issues continued, all which Mr. Engle attributed to Dr. Payne’s negligence.
The general sessions court dismissed the action.
As was his right, the patient, still acting pro se, appealed to the circuit court. He amended his complaint to the circuit court, but he still did not include the required certificate of good faith. However, he raised his damages claim to $100,000.
Mr. Engle was able to see his own x-rays from 2021 and claimed that he could see the cavity that Dr. Payne missed. Mr. Engle was not a health care provider. Dr. Payne filed for dismissal because, again, Mr. Engle had not filed the required certificate of good faith.
The court agreed with Dr. Payne and dismissed the case with prejudice. The circuit court held that Mr. Engle was bringing a medical malpractice suit which required expert testimony. An expert was needed to explain the standard of care and the issues with the x-ray findings. A jury would need help with both issues. With the need for medical expert testimony, the failure to attach the certificate of good faith was enough to dismiss with prejudice.
Mr. Engle appealed. Having learned some law, he filed under several new theories.
- His action was not a health care liability claim
- Even if it was a health care liability claim, it should fall under the common knowledge exception whereby, an expert was not needed to explain things to the jury and,
- The doctrine of res ipsa loquitur should have been applied.
The common knowledge exception comes into play if the act of wrongful conduct comes
within the knowledge of a layperson.
The appellate court “conclude[d] that the circuit court properly determined that the action
is a health care liability action and that the common knowledge exception, whether under the doctrine of res ipsa loquitur or ordinary negligence, does not dispense with the requirement of a certificate of good faith in this case.[5]
Also, under previous rulings, parties are not allowed to raise issues for the first time on appeal. Under the law, Mr. Engle really had no chance by now claiming this was not a health care liability claim—which his first suit specifically stated that it was, and now claiming that the doctrine of res ipsa loquitur should have been applied. The appellate court is not obligated to address issues not raised by the parties themselves during the initial proceedings.
Under Tenn. Code Ann. Section 29-26-115(a), failure to file a required certificate of good faith when expert testimony is required results in dismissal with prejudice.[6]
Remember, not all states require a certificate of good faith before filing a medical malpractice suit. Check your state for what is required.
Mr. Engle should have hired an attorney since the facts, on their face, look like he may have had a winnable case.
[1] Tennessee Code Annotated section 29-26-122 (2025).
[2] Id.
[3] Jon Engle v. Aaron Payne, DDS No. M2024-01325-COA-R3-CV
[4] Id.
[5] Id. A jury of laypersons would have required expert testimony to explain the x-ray findings and the standard of care for a dentist faced with the same or similar circumstances. A community standard would also have to be explained to the jury since a community standard is required in Tennessee.
[6] Dismissal with prejudice means that the cause of action can never be raised again in a court of law.