Helen Shaw as Administrator for the Estate of John Suttle v. Lawrence B. Gross, M.D.

02/09/2018
IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
November 14, 2017 Session
HELEN SHAW AS ADMINISTRATOR FOR THE ESTATE OF JOHN
SUTTLE v. LAWRENCE B. GROSS, M.D., ET AL.
Appeal from the Circuit Court for Shelby County
No. CT-004166-15 Valerie L. Smith, Judge
___________________________________
No. W2017-00441-COA-R3-CV
___________________________________
The plaintiff in a health care liability action appeals the dismissal of her claim on the
basis of the expiration of the statute of limitations and the failure to provide pre-suit
notice compliant with Tennessee Code Annotated section 29-26-121(a)(3)(B). Because
the undisputed facts in the record fail to establish that decedent was aware of the alleged
misdiagnosis prior to his death, we reverse the trial court’s ruling on this issue. We also
determine that the trial court failed to apply the appropriate standard or adequately
explain its decision regarding the plaintiff’s alleged non-compliance with section 29-26-
121(a)(3)(B). We therefore vacate the dismissal of the complaint on this basis and
remand for reconsideration in light of the appropriate standard. Reversed in part, vacated
in part, and remanded.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed in
Part, Vacated in Part, and Remanded
J. STEVEN STAFFORD, P.J., W.S., delivered the opinion of the court, in which FRANK G.
CLEMENT, JR., P.J., M.S., and ARNOLD B. GOLDIN, J., joined.
Shantell S. Suttle, Memphis, Tennessee, for the appellant, Helen Shaw, as Administrator
for the Estate of John Suttle.
John C. Ryland, Kristine E. Nelson, Thomas Parker, Ormonde B. DeAllaume, Memphis,
Tennessee, for the appellees, Methodist Healthcare-Memphis Hospitals, and Lawrence B.
Gross, M.D.
OPINION
BACKGROUND
The facts of this case are largely undisputed for purposes of this appeal. On May
17, 2014, John Suttle (“Decedent”) presented at the emergency room of Methodist South
Hospital, owned and operated by Defendant/Appellee Methodist Healthcare-Memphis
Hospitals (“the Hospital”). Decedent complained of “rib-trunk pain” and headache that
resulted from a fall. The same day, Defendant/Appellee Lawrence B. Gross, M.D.
(together with the Hospital, “Appellees”) ordered lab work and examined Decedent.
According to the complaint later filed in this case, Dr. Gross diagnosed Decedent with
dehydration and released Decedent to return home. The next day Decedent returned to the
emergency room via ambulance when he became lethargic and unresponsive. On this
date, Decedent was diagnosed with sepsis1 and cholecystitis.2 Decedent died on June 14,
2014. On June 18, 2014, an autopsy report confirmed Decedent’s cause of death as the
result of septic shock and gangrenous cholecystitis.
Beginning on June 5, 2015, Plaintiff/Appellant Helen Shaw, on behalf of
Decedent’s Estate (“Appellant”) allegedly sent pre-suit notices of the potential claim at
issue to various addresses associated with the medical providers in this case. While some
notices were mailed on June 5, 2015, additional notices were mailed as late as July 29,
2015. No notices, however, were mailed at any time prior to June 5, 2015. According to
Appellees, Appellant attempted to send notices to twenty-one different health care
providers.
On October 5, 2015, Appellant filed a complaint for damages against Appellees.
The complaint alleged that Dr. Gross was negligent in failing to properly diagnose
Decedent’s sepsis on May 17, 2014, and that the delay in diagnosis and treatment caused
by Dr. Gross’s negligence resulted in Decedent’s death. Additionally, the complaint
alleged that the Hospital was vicariously liable for Dr. Gross’s negligence. Appellant
requested both compensatory and punitive damages totaling $2,000,000.00. Appellant
attached to the complaint an affidavit detailing the efforts made to send pre-suit notice to
Appellees.
Dr. Gross filed an answer on November 12, 2015, denying that he committed
negligence and raising the affirmative defense that the complaint was barred by the
applicable statute of limitations and that pre-suit notice of the potential claim was not
properly sent to Dr. Gross. On November 13, 2015, the Hospital filed a motion to
dismiss, or in the alternative, for summary judgment, arguing that Appellant failed to
provide notice of her potential health care liability action within the applicable statute of
limitations and that Appellant failed to comply with the pre-suit notice provisions of the
Tennessee Health Care Liability Act (“THCLA”). The Hospital’s motion was
1
Sepsis is defined as “infection; contamination.” Mosby’s Dictionary of Medicine, Nursing, &
Health Professions 1624 (9th ed. 2013).
2
Cholecystitis is defined as “acute inflammation of the gallbladder.” Mosby’s Dictionary of
Medicine, Nursing, & Health Professions 351 (9th ed. 2013).
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accompanied by a memorandum of law and a statement of undisputed material facts.
Appellant responded in opposition to the Hospital’s motion on December 14, 2015,
arguing that genuine issues of material fact precluded summary dismissal. Appellant
accompanied her response with a response to the Hospital’s statement of undisputed
facts, largely admitting the facts surrounding Decedent’s hospitalization, but denying that
the statute of limitations had expired.
On January 21, 2016, Dr. Gross filed a motion to amend his answer to allege
additional averments related to the expiration of the statute of limitations and Appellant’s
compliance with the THCLA pre-suit notice requirements. The trial court granted Dr.
Gross’s motion to amend by order of February 12, 2016.
On March 8, 2016, Dr. Gross filed a motion to dismiss, or in the alternative, for
summary judgment. Therein, Dr. Gross argued that Appellant’s claim was barred by the
applicable statute of limitations and for failure to comply with the THCLA. The motion
was accompanied by the affidavit of Dr. Gross, a memorandum of law, and a statement of
undisputed material facts. On May 19, 2016, the Hospital filed its answer to the
complaint, raising the expiration of the statute of limitations as an affirmative defense. In
June 2016, Appellant responded in opposition to Dr. Gross’s motion. On August 10,
2016, the Hospital joined in Dr. Gross’s motion.
Eventually, the trial court held a hearing on the pending motions to dismiss or for
summary judgment and took the matter under advisement. On January 17, 2017, the trial
court issued an oral ruling granting summary judgment in favor of Appellees. With
regard to the statute of limitations issue, the trial court ruled that the statute of limitations
began to run on May 18, 2014, meaning that all of the pre-suit notices sent by Appellant
were untimely. The trial court further ruled that, however, even if the statute of
limitations did not begin to run until the autopsy report was released on June 18, 2014,
Appellant failed to establish that she sent timely notices to Appellees pursuant to the
mailing requirements of the THCLA. Finally, the trial court declined to rule on
Appellees’ argument that the pre-suit notice was deficient because the notices did not
contain HIPAA-compliant medical authorizations as required by the THCLA. The trial
court later entered an amended order. From this ruling, Appellant now appeals.
ISSUES PRESENTED
Appellant raises a single issue: Whether the trial court erred in granting summary
judgment to Appellees. Additionally, Appellees assert that this Court should affirm the
dismissal of Appellant’s complaint for failure to provide a HIPAA-compliant medical
authorization.
STANDARD OF REVIEW
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Although Appellees filed motions to dismiss, or in the alternative, for summary
judgment, the trial court’s order expressly states that it adjudicated the motions under the
summary judgment standard. See Estate of Bradley v. Hamilton Cty., No. E2014-02215-
COA-R3-CV, 2015 WL 9946266, at *3 (Tenn. Ct. App. Aug. 21, 2015) (noting that
although the Tennessee Supreme Court has stated that a motion to dismiss is the proper
method for challenging a plaintiff’s compliance with the THCLA, a motion to dismiss is
converted to a motion for summary judgment where matters outside the pleadings are
considered). Summary judgment is appropriate where: (1) there is no genuine issue with
regard to the material facts relevant to the claim or defense contained in the motion; and
(2) the moving party is entitled to judgment as a matter of law on the undisputed facts.
Tenn. R. Civ. P. 56.04. On appeal, this Court reviews a trial court’s grant of summary
judgment de novo with no presumption of correctness. Rye v. Women’s Care Ctr. of
Memphis, MPLLC, 477 S.W.3d 235, 250 (Tenn. 2015) (citing Bain v. Wells, 936
S.W.2d 618, 622 (Tenn. 1997)), cert. denied, 136 S. Ct. 2452, 195 L. Ed. 2d 265 (2016).
In reviewing the trial court’s decision, we must view all of the evidence in the light most
favorable to the nonmoving party and resolve all factual inferences in the nonmoving
party’s favor. Luther v. Compton, 5 S.W.3d 635, 639 (Tenn. 1999); Muhlheim v. Knox
Cnty. Bd. of Educ., 2 S.W.3d 927, 929 (Tenn. 1999). If the undisputed facts support only
one conclusion, then the court’s summary judgment will be upheld because the moving
party was entitled to judgment as a matter of law. See White v. Lawrence, 975 S.W.2d
525, 529 (Tenn. 1998); McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn. 1995). When a
moving party has filed a properly supported motion for summary judgment, the
nonmoving party must respond by pointing to evidence that shows summary judgment is
inappropriate. Rye, 477 S.W.3d at 264–65.
ANALYSIS
We begin with the trial court’s ruling regarding the statute of limitations. This
health care liability action is governed by a one-year statute of limitations, which
limitations period may be extended by one hundred twenty days when proper pre-suit
notice is provided to the defendant health care providers. See Tenn. Code Ann. § 29-26-
116 (providing that the statute of limitations in a health care liability action is one year
from discovery of the alleged injury); Tenn. Code Ann. § 29-26-121 (“When notice is
given to a provider as provided in this section, the applicable statutes of limitations and
repose shall be extended for a period of one hundred twenty (120) days from the date of
expiration of the statute of limitations and statute of repose applicable to that provider.”).
Such pre-suit notice, however, must be sent “within the statutes of limitations and statutes
of repose applicable to the provider[.]” Tenn. Code Ann. § 29-26-121(a)(3). Here, no
notices were sent prior to June 5, 2015. As such, if the statute of limitations expired prior
to that date, the notices were not timely and did not serve to extend the statute of
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limitations.3 Determining the date the statute of limitations began to run is therefore
necessary to the resolution of this appeal.
In order to determine the date that the statute of limitations expired, we must first
determine the accrual date of Appellant’s cause of action. “The concept of accrual relates
to the date on which the applicable statute of limitations begins to run.” Redwing v.
Catholic Bishop for Diocese of Memphis, 363 S.W.3d 436, 457 (Tenn. 2012) (citing
Columbian Mut. Life Ins. Co. v. Martin, 175 Tenn. 517, 526, 136 S.W.2d 52, 56
(1940)). While under the traditional rule, a cause of action accrues immediately upon
injury, Tennessee follows the discovery rule, which provides that “‘the cause of action
accrues and the statute of limitations commences to run when the patient discovers, or in
the exercise of reasonable care and diligence for his own health and welfare, should have
discovered the resulting injury.’” Redwing, 363 S.W.3d at 458 (quoting Teeters v.
Currey, 518 S.W.2d 512, 517 (Tenn. 1974)); see also Tenn. Code Ann. § 29-26-116 (“In
the event the alleged injury [in a health care liability action] is not discovered within such
one-year period, the period of limitation shall be one (1) year from the date of such
discovery.”). Under the discovery rule as it currently exists, the patient’s cause of action
accrues when the patient discovers “not only the . . . injury but also . . . the source of the
injury.” Redwing, 363 S.W.3d at 458 (citing Sherrill v. Souder, 325 S.W.3d 584, 595
(Tenn. 2010)); see also Foster v. Harris, 633 S.W.2d 304, 305 (Tenn. 1982) (holding that
“no judicial remedy [is] available to [a] plaintiff until he [or she] discover[s], or
reasonably should have discovered, (1) the occasion, the manner and means by which a
breach of duty occurred that produced his [or her] injury; and (2) the identity of the
defendant who breached the duty.”). The discovery does not, however, “delay the accrual
of a cause of action and the commencement of the statute of limitations until the plaintiff
knows the full extent of the damages[.]” Redwing, 363 S.W.3d at 459 (citing B & B
Enters. of Wilson Cnty., LLC v. City of Lebanon, 318 S.W.3d 839, 849 (Tenn. 2010)).
As such, the plaintiff cannot delay filing his or her lawsuit “until all injurious effects or
consequences of the actionable wrong are fully known[], []until the plaintiff knows the
specific type of legal claim it has, . . . [or] until the discovery of all the facts that affect
the merits of his or her claim.” Redwing, 363 S.W.3d at 459 (internal citations omitted).
The claim therefore accrues when the plaintiff has either actual knowledge of the claim or
“actual knowledge of ‘facts sufficient to put a reasonable person on notice that he [or she]
has suffered an injury as a result of wrongful conduct.’” Id. (quoting Carvell v. Bottoms,
900 S.W.2d 23, 29 (Tenn. 1995)). This type of notice is often referred to as inquiry notice
and is the type of notice at issue in this case. Redwing, 363 S.W.3d at 459.
3
Additionally, if the cause of action accrued on May 18, 2014, the claim was untimely regardless
of whether proper notices were sent, as compliance with the notice requirement extends the one year
statute of limitations by only one hundred twenty days, i.e., to September 15, 2015, approximately twenty
days prior to the filing of the complaint. See Tenn. Code Ann. § 29-26-121(c) (providing a one hundred
twenty day extension on the statute of limitations).
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Here, Appellees assert that the undisputed facts of this case establish that
Decedent, as the patient, had knowledge of the alleged wrongful diagnosis by Dr. Gross
on May 18, 2014, which misdiagnosis Appellant contends resulted in Decedent’s death.
As such, Appellees contend that Decedent was provided with sufficient facts as of May
18, 2014 to determine both the “the occasion, the manner and means by which a breach
of duty occurred” and the individual who committed the breach. See Foster 633 S.W.2d
at 305.4 Respectfully, we cannot agree.5
4
At oral argument, Dr. Gross raised, for the first time, an argument that the discovery rule should
not apply in this case based upon the recent case of Jones v. Behrman, No. W2016-00643-COA-R3-CV,
2017 WL 2791172 (Tenn. Ct. App. June 27, 2017). The issue in Jones primarily related to fraudulent
concealment. In any event, the Tennessee Supreme Court specifically determined that the discovery rule
allowing a plaintiff one year from the date of discovery of his or her cause of action is applicable in health
care liability actions, even where the plaintiff discovers the injury within one year of the date the
negligence occurred. See Hoffman v. Hosp. Affiliates, Inc., 652 S.W.2d 341, 344 (Tenn. 1983) (citing
Tenn. Code Ann. § 29-26-116(a)(2)(“In the event the alleged injury is not discovered within such one-
year period, the period of limitation shall be one (1) year from the date of such discovery.”)). This
argument is unavailing.
5
Appellant largely fails to include any argument in her initial brief to this Court regarding the
accrual and expiration of the statute of limitations, choosing instead to focus on the dates and addresses of
the pre-suit notices. Specifically, while Appellant asserts that the trial court erred in granting summary
judgment generally and that she discovered this cause of action on the date the autopsy was released, no
law is cited by Appellant to support her assertion and no analysis is devoted to this issue. Tennessee
courts have held that merely constructing a skeletal argument on an issue may result in waiver on appeal.
Sneed v. Bd. of Prof’l Responsibility of Supreme Court, 301 S.W.3d 603, 615 (Tenn. 2010) (“[W]here a
party . . . merely constructs a skeletal argument, the issue is waived.”). Appellant does, however, address
the accrual of the statute of limitations in her reply brief. We have recently held, however, that
deficiencies in initial briefs may not be corrected in reply briefs. Withers v. Withers, No. W2016-01663-
COA-R3-CV, 2018 WL 625119, at *2 n.2 (Tenn. Ct. App. Jan. 30, 2018). In reaching this result, we
noted that to do so would be unfair because the appellee may have no opportunity to respond. Id. (citing
Denver Area Meat Cutters & Emp’rs Pension Plan v. Clayton, 209 S.W.3d 584, 594 (Tenn. Ct. App.
2006) (holding that permitting an appellant to advance new arguments in a reply brief not addressed in the
initial brief “would be fundamentally unfair as the appellee may not respond to a reply brief.”). We have
often applied this rule in cases where the issue was not raised in the initial brief and the discussion
contained in the reply brief was no more than skeletal or failed to contain appropriate references to the
record. See O’dneal, et al. v. Baptist Memorial Hospital-Tipton, et al., No. W2016-01912-COA-R3-CV,
2018 WL 724858, at *2 n.2 (Tenn. Ct. App. Feb. 6, 2018) (holding that an issue was waived where it was
mentioned for the first time in a reply brief and then only in a conclusory fashion). Withers, 2018 WL
625119, at *2 n.2 (holding the issue waived where it was not raised in the initial brief and the appellant
failed to support the allegations in the reply brief with references to the record); Burge v. Farmers Mut.
of Tennessee, No. M2016-016-COA-R3-CV, 2017 WL 1372864, at *9 (Tenn. Ct. App. Apr. 13, 2017)
(holding that an issue was waived where it was not argued in the initial brief and the reply brief cited no
authority in support of the argument); see also Lovlace v. Copley, 418 S.W.3d 1, 33 n.17 (Tenn. 2013)
(holding that a request was waived not because it was addressed first by reply brief, but because the reply
brief contained no argument or citation to the record regarding the issue); c.f. Rountree v. Rountree, 369
S.W.3d 122, 133 (Tenn. Ct. App. 2012) (considering issues of marital property although the required
chart was included only in the appellant’s reply brief). In some cases, however, we have exercised our
discretion to consider arguments where the issues were fully addressed in both the brief of the appellee
and the appellant’s reply brief, even when the issue was completely excluded from the appellant’s initial
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Here, the record contains three statements of undisputed material facts filed by
Appellees. The single fact contained in each statement relevant to this issue is, with
minor alterations, as follows: “According to the Complaint, [Decedent] exhibited
symptoms that led to his return to the emergency department at [the Hospital] on the
following day, May 18, 2014. On that day, it was allegedly determined that [Decedent]
was hemodynamically unstable with sepsis and cholecystitis.” In support, the various
statements of undisputed facts cite to Appellant’s complaint, which likewise states that “it
was determined” that Decedent was suffering from sepsis and cholecystitis. From our
review, this fact is insufficient to show that Decedent was aware of Dr. Gross’s alleged
misdiagnosis on May 18, 2014 because nothing therein indicates that the diagnosis of
sepsis and cholecystitis was ever actually communicated to Decedent on this date. As
previously discussed, the discovery rule’s cornerstone is, at minimum, the knowledge of
the patient of the injury. See Redwing, 363 S.W.3d at 458 (focusing on the patient’s
knowledge of the negligence); But see Holliman v. McGrew, 343 S.W.3d 68, 75 (Tenn.
Ct. App. 2009) (focusing, in a wrongful death action predicated on health care liability,
the knowledge of the patient’s heirs of the patient’s injury). As such, at the very least,
Defendant must point to undisputed facts showing Decedent knew or should have known
that a misdiagnosis had been made the prior day, which is often met where a new
diagnosis is communicated to the patient to put him or her on notice that he was
previously misdiagnosed. Indeed, in cases cited involving misdiagnoses as the predicate
for a health care liability action, Tennessee courts have repeatedly held that the cause of
action accrued when the misdiagnosis or a new diagnosis was made known to the patient.
See, e.g., Hoffman v. Hospital Affiliates, Inc., 652 S.W.2d 341 (Tenn. 1983) (noting that
it was uncontroverted that the patient discovered her injury when a second doctor
informed her that her first diagnosis was incorrect); Young v. Kennedy, 429 S.W.3d 536,
561 (Tenn. Ct. App. 2013) (holding that the patient’s “knowledge of the infection” put
the patient on notice of a physician’s prior negligence); Murphy v. Lakeside Med. Ctr.,
Inc., No. E2006-01721-COA-R3-CV, 2007 WL 906760, at *4 (Tenn. Ct. App. Mar. 26,
2007) (holding that the plaintiff was placed on notice of his injury when the patient
received conflicting diagnoses regarding his hearing loss); Jones v. Neblett, No. CA
1306, 1989 WL 126280, at *1 (Tenn. Ct. App. Oct. 23, 1989) (holding that the plaintiff
was put on notice of the injury on the date that another doctor informed the plaintiff-
patient that a prior diagnosis was incorrect). While “there is no requirement of diagnosis
of the actual injury by another medical professional,” the record must contain evidence
that the patient was put on notice that he or she was injured by the defendant’s
negligence. Rogers v. Blount Mem’l Hosp., Inc., No. E2015-00136-COA-R3-CV, 2016
WL 787308, at *5 (Tenn. Ct. App. Feb. 29, 2016) (citing Sherrill, 325 S.W.3d at 595)
brief. See Malco Theaters, Inc. v. Roberts, No. W2010-00464-COA-R3-CV, 2011 WL 1598884, at *25
(Tenn. Ct. App. Apr. 26, 2011). Here, the question of the discovery of this cause of action was mentioned
in the initial brief and fully addressed in Appellant’s reply brief, which included both citations to
authority and references to the record. In addition, Appellees were not deprived of the opportunity to
address this issue on appeal because it was fully addressed in their brief. Because this issue was fully
litigated by both parties in the trial court and on appeal, we will proceed to consider it.
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(reversing summary judgment on the issue of the statute of limitations because the
evidence did not establish that the patient had notice he had been injured by a physician
until another physician informed him of the prior misdiagnosis). Here, there is nothing in
the record beyond speculation to suggest that Decedent’s return to the emergency room
on May 18, 2014, alone, should have given Decedent any cause to suspect that he had
been injured by Dr. Gross’s misdiagnosis the prior day. Rather, as Appellant points out,
in the absence of proof on this issue, a reasonable inference is that Decedent believed that
his return to the hospital was the result of a worsening of his dehydration, as had been
previously diagnosed. See Rogers, 2016 WL 787308, at *5 (holding that the plaintiff was
not put on notice of the misdiagnosis because the worsening symptoms could reasonably
have been attributed to the natural progression of the previously diagnosed ailment).
Moreover, although Appellees assume that the diagnosis of sepsis and
cholecystitis was communicated to Decedent on May 18, 2014, the undisputed facts
contained in the record simply do not support this assumption. The record contains no
depositions or affidavits from medical professionals who treated Decedent on May 18,
2014 or from any friends or family members who may have been present at the Hospital
on that date. Rather, the undisputed facts establish only that a diagnosis was made on
May 18, 2014, not that this diagnosis was in any way communicated to Decedent. While
the diagnosis may in fact have been communicated to Decedent on May 18, 2014,
especially given Appellant’s failure to specifically deny that such a communication
occurred, the undisputed facts do not necessitate this conclusion and the burden therefore
never shifted to Appellant to set forth specific facts to negate Appellees’ assertion that
notice had been provided to Decedent. To hold otherwise would be to resolve a factual
inference in favor of Appellees, an action that is not permitted under our summary
judgment standard. See Luther, 5 S.W.3d at 639 (directing courts to resolve all factual
inferences in the nonmoving party’s favor when considering a motion for summary
judgment). Because Appellees have failed to set forth undisputed facts establishing that
Decedent had sufficient facts on May 18, 2014 to put him on notice of Dr. Gross’s
alleged negligence, summary judgment on this basis was inappropriate. Rather, the
undisputed facts in the record show only that the diagnosis was made known to Decedent
or his representatives on June 18, 2014, when Appellant admits that she learned of
Decedent’s cause of death through the release of the autopsy report. Using this date, if
Appellant gave appropriate pre-suit notice pursuant to Tennessee Code Annotated section
29-26-121, Appellant’s complaint was timely filed. The trial court’s judgment in this
respect is therefore reversed.
II.
Appellees next argue that even in the event that the statute of limitations did not
expire on May 18, 2015, summary judgment is still appropriate because Appellant did not
send timely pre-suit notice of her lawsuit to Appellees in the manner required by
Tennessee Code Annotated section 29-26-121(a)(3)(B). As previously stated, to rely on
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the one hundred twenty day extension to the statute of limitations, a plaintiff must give
appropriate pre-suit notice under section 29-26-121. See Tenn. Code Ann. § 29-26-121(c)
(stating that a plaintiff is entitled to an extension on the statute of limitations “[w]hen
notice is given to a provider as provided in this section”). Under this statute, service of
written pre-suit notice may be effectuated by
[m]ailing of the notice:
(i) To an individual health care provider at both the address listed for
the provider on the Tennessee department of health web site and the
provider’s current business address, if different from the address
maintained by the Tennessee department of health; provided, that, if
the mailings are returned undelivered from both addresses, then,
within five (5) business days after receipt of the second undelivered
letter, the notice shall be mailed in the specified manner to the
provider’s office or business address at the location where the
provider last provided a medical service to the patient; or
(ii) To a health care provider that is a corporation or other business
entity at both the address for the agent for service of process, and the
provider’s current business address, if different from that of the
agent for service of process; provided, that, if the mailings are
returned undelivered from both addresses, then, within five (5)
business days after receipt of the second undelivered letter, the
notice shall be mailed in the specified manner to the provider’s
office or business address at the location where the provider last
provided a medical service to the patient.
Tenn. Code Ann. § 29-26-121(a)(3)(B). Section 29-26-121(a)(4) contains the
requirements to show proof of compliance with section 29-26-121(a)(3)(B):
Compliance with subdivision (a)(3)(B) shall be demonstrated by filing a
certificate of mailing from the United States postal service stamped with
the date of mailing and an affidavit of the party mailing the notice
establishing that the specified notice was timely mailed by certified mail,
return receipt requested. A copy of the notice sent shall be attached to the
affidavit. It is not necessary that the addressee of the notice sign or return
the return receipt card that accompanies a letter sent by certified mail for
service to be effective.
Here, Appellees assert that Appellant failed to comply with the requirements of section
29-26-121(a)(3)(B) prior to the expiration of the statute of limitations and that the trial
court properly dismissed the complaint as a result.
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As an initial matter, we must first determine the level of compliance that is
necessary to fulfill the requirements of these provisions. In many instances, the THCLA’s
pre-suit notice requirements demand strict compliance. Thus, our supreme court has
stated that
At least sixty days before filing a complaint for health care liability, a
person who is asserting the claim must give written notice of the claim to
each health care provider that will be named as a defendant. Tenn. Code
Ann. § 29-26-121(a)(1). Pre-suit notice is mandatory, and section 29-26-
121(a)(1) demands strict compliance. Myers v. AMISUB (SFH), Inc., 382
S.W.3d 300, 309 (Tenn. 2012); see also Foster v. Chiles, [467 S.W.3d 911,
916] (Tenn. Jan. 27, 2015). The consequence for failure to give pre-suit
notice is dismissal of the lawsuit. Foster, [467 S.W.3d at 916].
Arden v. Kozawa, 466 S.W.3d 758, 762–64 (Tenn. 2015). In dealing with the specific
provisions at issue in this case, however, the supreme court has held that strict
compliance is not required:
We hold that the manner and proof of service requirements of
Tennessee Code Annotated sections 29-26-121(a)(3)(B) and (a)(4) are not
mandatory, but directory, and can be achieved through substantial
compliance. Cf. Thurmond [v. Mid-Cumberland Infectious Disease
Consultants, PLC], 433 S.W.3d [512,] 520 [(Tenn. 2014)]; Stevens [ex rel.
Stevens v. Hickman Comm. Health Care Servs., Inc.], 418 S.W.3d [547,]
555 [(Tenn. 2013)]. So long as a health care defendant is not prejudiced by
a plaintiff’s deviations from the statutorily prescribed method of service—
“certified mail, return receipt requested”—or the proof of service
requirement—“filing a certificate of mailing from the United States [P]ostal
[S]ervice”—substantial compliance with these statutory requirements will
suffice. See Thurmond, 433 S.W.3d at 518; Stevens, 418 S.W.3d at 555;
see also Henry v. Goins, 104 S.W.3d 475, 481 (Tenn.2003) (recognizing
the state public policy of deciding cases on their merits as opposed to
dismissing on procedural technicalities).
Arden, 466 S.W.3d at 764. Importantly for this case, the court further explained that the
specific requirement of section 29-26-121(a)(3)(B)(i) that a notice be mailed to the health
care provider’s address as indicated on the Tennessee Department of Health website
demands only substantial compliance. Id. at 764 n.6. Thus, where the plaintiff mistakenly
sent the notice to an address similar to the correct address and the medical provider did
not allege that he failed to receive the notice or was prejudiced by the error, substantial
compliance was met. Id. The court explained, however, that substantial compliance will
not be met where the “health care defendant claims lack of notice or prejudice[.]” Id. at
746.
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Here, Appellees filed their motions to dismiss/for summary judgment on the basis
that Appellant had failed to mail notices to each defendant at the addresses required by
section 29-26-121(a)(3)(B). Based upon Arden, the proper analysis of this issue is
whether Appellant substantially complied with section 29-26-121(a)(3)(B)—that is,
whether either defendant was “prejudiced by a plaintiff’s deviations from the statutorily
prescribed method of service.” Id. at 764.
Turning to the trial court’s order, it does not appear that the trial court considered
substantial compliance in ruling on this issue. The trial court’s decision on this issue is as
follows:
As an additional ground for summary judgment, the [Appellees] asserted
that the [Appellant] failed to properly send written notice letters to Dr.
Gross and [the Hospital] pursuant to the requirements of Tenn. Code Ann.
§ 29-26-121(a)(3). As noted above, any notice letters mailed by [Appellant]
and/or [Appellant’s] counsel were mailed after the statute of limitations had
already expired on May 18, 2015. Notwithstanding the foregoing, even if
one assumed, arguendo, that the [Appellant’s] cause of action accrued after
May 18, 2014, [Appellant] and/or [Appellant’s] counsel failed to properly
mail notice letters to Dr. Gross and [the Hospital] pursuant to the
requirements of Tenn. Code Ann. § 29-26-121(a)(3). As a result, the
[Appellant] was not entitled to a one hundred twenty (120) day extension of
the applicable statute of limitations pursuant to Tenn. Code Ann. § 29-26-
121(c). Thus, even if one were to determine that the cause of action accrued
after May 18, 2014, the filing of [Appellant’s] Complaint on October 5,
2015 was untimely and the [Appellant’s] claims were barred by the statute
of limitations prior to the filing of [Appellant’s] Complaint.
Thus, “distilled to its essence,” see Beard v. Branson, 528 S.W.3d 487, 502 (Tenn.
2017), the trial court’s order contains a single conclusion relevant to our analysis on this
issue: Appellant “failed to properly mail notice letters to Dr. Gross and [the Hospital]
pursuant to the requirements of Tenn. Code Ann. § 29-26-121(a)(3).”
Although the trial court speaks through its written orders, rather than the
transcript, see In re Adoption of E.N.R., 42 S.W.3d 26, 31 (Tenn. 2001), we note that the
trial court’s oral ruling on this issue provides no greater illumination. Rather the trial
court’s oral ruling on this issue is as follows:
[Section] 29-26-121 provides that notice must be filed in a very specific
manner and mailed to both addresses which were gone over in detail in
argument, and I’m not going to read those here today, but I think that was
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very clear in the argument.[6] The question is when two letters were sent. If
the [Appellees’] interpretation of the statute is correct, then I believe the
notice letters were still sent outside of the statute of limitations. There is a
question of whether or not – I was never able to figure out from the record
if --believe there was only one letter sent to [the Hospital] on behalf of --
which was I believe intended for Dr. Gross and for [the] Hospital, and the
Court finds that that is not sufficient to comply with the statute.
Thus, while it does appear that the trial court ruled that section 29-26-121(a)(3)(B)
required that Appellant send “two letters” to each Appellee, the oral ruling lacks
specificity as to the deviations that were made with regard to both the Hospital and Dr.
Gross, and again the trial court includes no discussion of prejudice.
Summary judgment is governed by Rule 56 of the Tennessee Rules of Civil
Procedure. Importantly, Rule 56.04 states: “The trial court shall state the legal grounds
upon which the court denies or grants the motion, which shall be included in the order
reflecting the court’s ruling.” In Smith v. UHS of Lakeside, 439 S.W.3d 303 (Tenn.
2014), the Tennessee Supreme Court held that Rule 56.04 requires that an order granting
or denying summary judgment include a rationale for the ruling that is both adequately
explained and is the product of the trial court’s independent judgment. Id. at 314. In
Smith, the trial court orally granted summary judgment without providing any basis for
its decision, directing counsel for one party to draft the trial court’s order and provide the
“rationale for the [c]ourt’s ruling.” Id. at 317. The Tennessee Supreme Court held that the
trial court had abrogated its “high judicial function” to provide the basis for its ruling and
that the basis provided by the party-prepared order would not be imputed to the trial
court. Id. at 317–18. Thus, “the trial court, upon granting or denying a motion for
summary judgment, [must] state the grounds for its decision before it invites or requests
the prevailing party to draft a proposed order.” Id. at 316. In reaching this result, the
Tennessee Supreme Court noted that intermediate appellate courts need not adhere to a
practice requiring us “to conduct archeological digs and to review summary judgment
orders when the basis for the trial court’s decision can be readily gleaned from the record
and to remand the case only when their practiced eyes cannot discern the grounds for the
trial court’s decision.” Id. at 314 (footnotes omitted). Rather, the court noted that in
addition to issues of judicial economy, questions of whether we should soldier on in spite
of the trial court’s failure to comply with Rule 56.04 should also take into account “the
fundamental importance of assuring that a trial court’s decision either to grant or deny a
summary judgment is adequately explained and is the product of the trial court’s
independent judgment.” Id.
6
The transcript contained in the record contains only the trial court’s ruling, not the argument of
the parties.
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A review of the record reveals that neither the trial court’s oral ruling nor its
written order comply with the Tennessee Supreme Court’s directive that the decision be
“adequately explained.” Id. First, as noted above, the Tennessee Supreme Court held that
substantial compliance was the proper measure of conformity with section 29-26-
121(a)(3)(B) in 2015; the trial court’s ruling, issued in 2017, however, fails to mention
substantial compliance.7 In failing to apply the appropriate standard, the trial court’s
order also does not discuss the issue of prejudice to Appellees or whether Appellees
received actual notice, the cornerstones of the substantial compliance analysis. See
Arden, 466 S.W.3d at 764. Moreover, even though the trial court clearly found that
Appellant “failed to properly mail notice letters” and that the mailing was “not
sufficient[,]” the trial court’s ruling does not adequately explain the specific deviations
that occurred in this case with regard to each Appellee. Indeed, although the record
contains two affidavits filed by Appellant’s counsel detailing that various notices were
mailed in this case over a multitude of dates to the two defendants at issue, the trial
court’s written order fails to mention even a single address, date, attempted or successful
mailing, or defendant specifically. Rather, the trial court’s order concludes that the
notices were not sent properly with no discussion of the basis for that decision.
Furthermore, there is uncertainty surrounding the facts in the record that make us
reluctant to soldier on in this case. For example, there is no dispute that the Tennessee
Department of Health, at the time of the events at issue in this case, listed Dr. Gross’s
address as “Lawrence B. Gross, M.D., Methodist North Hospital Emerg., Memphis,
Tennessee 99999.” As such, section 29-26-121(a)(3)(B)(ii) states that notice should be
mailed to this address along with the physician’s place of business. The address listed by
the Tennessee Department of Health, however, does not appear to be a valid address.
Instead, it appears that Appellant attempted to send a letter on June 5, 2015 to “3960 New
Covington Pike, Memphis, Tennessee 38128.” Although Appellant asserts in her brief
that this is “the business address” for the Hospital, there is no evidence in the record to
either substantiate or refute this allegation.8 See Washington v. Tennessee Dept. of Corr.,
No. 01A-01-9603-CH-00131, 1996 WL 334359, at *1 (Tenn. Ct. App. June 19, 1996)
(“Unsworn allegations of fact in pleading or brief do not create an issue as to facts shown
by sworn evidence.”); see also Elliott v. Cobb, 320 S.W.3d 246, 250 (Tenn. 2010)
7
The trial court’s failure to mention substantial compliance may be attributable to the parties,
neither of whom specifically cited Arden in the trial court. Appellant did argue in the trial court, however,
that actual notice was sufficient to meet the requirements of the statute—an argument that does not appear
to have been addressed by the trial court’s order, as actual notice is not mentioned. Appellant raised the
same argument in her brief to this Court, specifically noting that compliance with section 29-26-
121(a)(3)(B) is not mandatory. Moreover, “[i]t is the duty of this Court to apply the controlling law, for
which there is a basis in the record, whether or not cited or relied upon by the parties.” Kocher v.
Bearden, No. W2016-02088-COA-R3-CV, 2017 WL 2080396, at *5 (Tenn. Ct. App. May 15, 2017)
(quoting Coffee v. Peterbilt of Nashville, Inc., 795 S.W.2d 656, 658 n.1 (Tenn. 1990)).
8
In the trial court, however, Appellant also asserted that the Hospital’s “business address” was
1300 Wesley Drive, Memphis, Tennessee 38116.
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(“[S]tatements and arguments of counsel are neither evidence nor a substitute for
testimony.”). Questions regarding this address may require resolution to determine
whether substantial compliance was met in this case, such as whether a second letter that
was sent following the return of the New Covington Pike letter was within the time
allowed by section 29-26-121(a)(3)(B)(ii) (allowing the plaintiff five days to send a third
letter where both of the first two letters return undelivered). Indeed, the trial court’s oral
ruling reflects confusion regarding the timing of notices sent in this case and the intended
recipients but nevertheless grants summary judgment in favor of Appellees. Summary
judgment, however, is only appropriate where the undisputed facts lead to a single
conclusion. See Jones v. Bedford Cty., No. M2006-02710-COA-R3-CV, 2007 WL
3202760, at *2 (Tenn. Ct. App. Oct. 31, 2007) (citing Pero’s Steak & Spaghetti House v.
Lee, 90 S.W.3d 614, 620 (Tenn. 2002)) (“Summary judgment should be granted at the
trial court level when the undisputed facts, and the inferences reasonably drawn from the
undisputed facts, support one conclusion, which is the party seeking the summary
judgment is entitled to a judgment as a matter of law.”).
Based on the foregoing, we conclude that the appropriate remedy is to vacate the
judgment of the trial court on this issue and remand for further consideration in light of
the appropriate standard. See Smith, 439 S.W.3d at 318 (affirming the Court of Appeals’
decision to vacate the decision of the trial court and remand for the entry of an order fully
compliant with Rule 56.04); see also Hoback v. City of Chattanooga, No. E2011-00484-
COA-R3-CV, 2012 WL 2974762, at *6 (Tenn. Ct. App. July 20, 2012) (holding that the
fact-finder applied an incorrect standard, vacating the judgment, and remanding to the
fact-finder to apply the correct standard); In re Estate of Boote, 265 S.W.3d 402, 418
(Tenn. Ct. App. 2007) (holding that the trial court applied the wrong evidentiary
standard, vacating the judgment, and remanding to the trial court to apply the correct
standard). On remand, Appellees are not precluded from filing another motion
concerning the accrual and expiration of the statute of limitations, supported by
appropriate evidence. Should the trial court again be asked to rule upon Appellant’s
compliance with Tennessee Code Annotated section 29-26-121(a)(3)(B), the trial court is
directed to make a ruling that adequately explains its decision.
III.
Finally, Appellees assert that this Court should dismiss Appellant’s complaint
because she failed to substantially comply with Tennessee Code Annotated section 29-
26-121(a)(2)(E) by failing to provide a HIPAA-compliant medical authorization in
connection with her pre-suit notice. The trial court expressly declined to rule upon this
argument. Generally, this Court does not decide issues that were not first decided by the
trial court. See In re Adoption of E.N.R., 42 S.W.3d 26, 31–32 (Tenn. 2001) (holding
that courts “are limited in authority to the adjudication of issues that are presented and
decided in the trial courts”); Dorrier v. Dark, 537 S.W.2d 888, 890 (Tenn. 1976) (“This
is a court of appeals and errors, and we are limited in authority to the adjudication of
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issues that are presented and decided in the trial courts . . . .”); Hayes v. City of Memphis,
No. W2014-01962-COA-R3-CV, 2015 WL 5000729, at *10 (Tenn. Ct. App. Aug. 21,
2015) (citing Copper Basin Fed. Credit Union v. Fiserv Sols., Inc., No. E2012-02145-
COA-R3-CV, 2013 WL 3421916, at *5 (Tenn. Ct. App. July 3, 2013)) (“Even though
this issue was raised at the trial court level, we cannot fully analyze this issue because the
trial court did not consider or rule on it.”). As such, we decline to address this issue.
CONCLUSION
The judgment of the Shelby County Circuit Court is reversed in part, vacated in
part, and remanded for further proceedings consistent with the Opinion. Costs of this
appeal are taxed to Appellees Methodist Healthcare-Memphis Hospitals and Lawrence B.
Gross, M.D., for which execution may issue if necessary.
_________________________________
J. STEVEN STAFFORD, JUDGE
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