Curtis Myers v. AMISUB (SFH), Inc., d/b/a St. Francies Hospital

IN THE COURT OF APPEALS OF TENNESSEE
AT MEMPHIS
January 20, 2011 Session
CURTIS MYERS v. AMISUB (SFH), INC., d/b/a ST. FRANCIS
HOSPITAL, ET AL.
Interlocutory Appeal from the Circuit Court for Shelby County
No. CT-004650-09 Jerry Stokes, Judge
No. W2010-00837-COA-R9-CV - Filed February 24, 2011
The trial court denied Defendants’ motion to dismiss in a medical malpractice action initially
filed prior to the effective date of the notice and certificate of good faith provisions
subsequently codified at Tennessee Code Annotated sections 29-26-121 and 29-26-122, and
nonsuited and re-commenced after the effective date of the provisions despite Plaintiff’s
failure to fulfill the statutory requisites. We granted permission to appeal pursuant to Rule
9 of the Rules of Appellate Procedure. We reverse and remand for dismissal.
Tenn. R. App. P. 9 Interlocutory Appeal by Permission; Judgment of the Circuit
Court Reversed and Remanded
D AVID R. F ARMER, J., delivered the opinion of the Court, in which H OLLY M. K IRBY, J., and
J. S TEVEN S TAFFORD, J., joined.
Joseph M. Clark and Edd Peyton, Memphis, Tennessee, for the appellants, Arsalan Shirwany,
M.D. and East Memphis Pain Physicians, PLLC.
Marty R. Phillips and Michelle Greenway Sellers, Memphis, Tennessee, for the appellant,
EM-I Medical Services, P.C.
W. Timothy Hayes, Jr. And Kimberly Cross Shields, Memphis, Tennessee, for the appellant
AMISUB (SFH), Inc.
Bill M. Wade, Memphis, Tennessee, for the appellee, Curtis Myers.
OPINION
Curtis Myers (Mr. Myers) and Lisa Myers (Ms. Myers) filed a complaint for medical
malpractice against AMISUB (SFH), Inc., d/b/a St. Francis Hospital; Sheila B. Thomas,
D.O.; Arsalan Shirwany, M.D.; UT Medical Group, Inc.; Larry K. Roberts, M.D.; and
Memphis Physicians Radiological Group, P.C. on January 5, 2007, in the Circuit Court for
Shelby County. They amended their complaint and added Tennessee EM-I Medical Services,
P.C., and East Memphis Chest Pain Physicians, PLLC, on April 20, 2007. On August 24,
2007, Ms. Myers filed a notice of voluntary nonsuit pursuant to Rule 41.01 of the Tennessee
Rules of Civil Procedure. Mr. Myers took a voluntary nonsuit by order entered by the trial
court on October 21, 2008. In the meantime, the General Assembly amended the Medical
Malpractice Act and on October 1, 2008, Tennessee Code Annotated §§ 29-26-121 and 122
became effective. The statutes subsequently were amended effective July 1, 2009. Howell
v. Claiborne and Hughes Health Ctr., No. M2009-01683-COA-R3-CV, 2010 WL 2539651,
at *14 (Tenn. Ct. App. June 24, 2010), perm. app. granted (Tenn. Dec. 7, 2010), perm. app.
dismissed (Tenn. Jan. 19, 2011). On September 30, 2009, Mr. Myers re-commenced his
action within the one year provided by the savings statute codified at Tennessee Code
Annotated § 28-1-105, naming AMISUB (SFH), Inc., d/b/a St. Francis Hospital; Sheila B.
Thomas, D.O.; Arsalan Shirwany, M.D.; Tennessee EM-I Medical Services, P.C., and East
Memphis Chest Pain Physicians, PLLC, as Defendants.
On November 5, 2009, Defendant Tennessee EM-I Medical Services filed a motion
to dismiss that was joined by the remaining Defendants. In their motion, Defendants asserted
Mr. Myers’ action should be dismissed for failure to comply with Tennessee Code Annotated
sections 29-26-121 and 29-26-122, where Mr. Myers had neither given 60 days notice nor
filed a certificate of good faith as required by the sections. The trial court denied
Defendants’ motion by order entered on February 16, 2010. Defendants moved the trial court
for permission to seek an interlocutory appeal pursuant to Rule 9 of the Rules of Appellate
Procedure, which the trial court granted in April 2010. We granted Defendants’ application
for interlocutory appeal by order entered in July 2010.
Issues Presented
We granted permission for interlocutory appeal in this matter to address three
questions :
(1) Whether a plaintiff who re-commences a medical malpractice action
pursuant to the savings statute must comply with the notice provisions
of Tennessee Code Annotated section 29-26-121 where the action was
commenced prior to the effective date of the provision, but nonsuited
and re-filed after the provision became effective.
(2) Whether a plaintiff who re-commences a medical malpractice action
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pursuant to the savings statute must comply with the certificate of good
faith provisions of Tennessee Code Annotated section 29-26-122 where
the action was commenced prior to the effective date of the provision,
but nonsuited and re-filled after the provision became effective.
(3) Whether the Plaintiffs in this case demonstrated “extraordinary cause”
sufficient to excuse compliance with Tennessee Code Annotated
sections 29-26-121 and 29-26-122.
Standard of Review
A Rule 12.02(6) motion to dismiss challenges only the legal sufficiency of the
complaint itself, and not the strength of the plaintiff's proof. Trau-Med of Am., Inc. v.
Allstate Ins. Co., 71 S.W.3d, 691, 696 (Tenn. 2002)(citations omitted). The court must
construe the complaint liberally, presuming all facts as alleged by plaintiff to be true and
affording plaintiff the benefit of all reasonable inferences. Id. The trial court should not
dismiss the complaint for failure to state a claim unless it appears that the plaintiff can prove
no facts in support of the claim that would warrant relief. Id. “Great specificity in the
pleadings is ordinarily not required to survive a motion to dismiss; it is enough that the
complaint set forth a short and plain statement of the claim showing that the pleader is
entitled to relief.” Id. (citations omitted). We review the trial court’s award of a Rule
12.02(6) motion to dismiss de novo, with no presumption of correctness. Id. at 697. We
likewise review questions of statutory construction de novo, with no presumption of
correctness afforded to the determinations of the trial court. Hill v. City of Germantown, 31
S.W.3d 234, 237 (Tenn. 2000).
Discussion
In his response to Defendants’ motion to dismiss, Mr. Myers argued that Tennessee
Code Annotated §§ 29-26-121 and 122 are not applicable to his cause of action because his
initial lawsuit was filed before the provisions became effective. We must disagree with this
assertion. The savings statute provides, in pertinent part:
(a) If the action is commenced within the time limited by a rule or statute of
limitation, but the judgment or decree is rendered against the plaintiff upon any
ground not concluding the plaintiff's right of action, or where the judgment or
decree is rendered in favor of the plaintiff, and is arrested, or reversed on
appeal, the plaintiff, or the plaintiff's representatives and privies, as the case
may be, may, from time to time, commence a new action within one (1) year
after the reversal or arrest. Actions originally commenced in general sessions
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court and subsequently re-commenced pursuant to this section in circuit or
chancery court shall not be subject to the monetary jurisdictional limit
originally imposed in the general sessions court.
Tenn. Code Ann. § 28-1-105 (2000). An action commenced pursuant to the savings statute
is a “new action,” and must be filed in conformance with the Rule 3 of the Tennessee Rules
of Civil Procedure. Old Hickory Eng’g and Mach. Co. v. Henry, 937 S.W.2d 782, 784-85
(Tenn. 1996). When Mr. Meyer’s re-filed his action in September 2009, he “commence[d]
a new action” that was governed by the statutory provisions which became effective as
amended on July 1, 2009. See also Howell v. Claiborne and Hughes Health Ctr., No.
M2009-01683-COA-R3-CV, 2010 WL 2539651(Tenn. Ct. App. June 24, 2010)(applying
section 29-26-121 to an action originally filed in 2007, nonsuited, and re-commenced on
October 6, 2008).
The rules governing statutory construction are well-established. When interpreting a
statute, the court is to “ascertain and give effect to the legislative intent without unduly
restricting or expanding a statute's coverage beyond its intended scope.” Hathaway v. First
Family Fin. Servs., Inc., 1 S.W.3d 634, 640 (Tenn. 1999) (citations omitted). We must
ascertain the intent of the legislature from the natural and ordinary meaning of the statutory
language and in context of the entire statute, without forcing a construction that would limit
or expand its scope. JJ & TK Corp. v. Bd. of Comm’rs, 149 S.W.3d 628, 630-31 (Tenn. Ct.
App. 2004) (citations omitted). When the language of a statute is clear, we must utilize the
plain, accepted meaning of the words used by the legislature to ascertain the statute’s purpose
and application. If the wording is ambiguous, however, we must look to the entire statutory
scheme and at the legislative history to ascertain the legislature’s intent and purpose. We
must construe statutes in their entirety, assuming that the legislature chose the words of the
statute purposely, and that the words chosen “convey some intent and have a meaning and
a purpose” when considered within the context of the entire statute. Eastman Chem. Co. v.
Johnson, 151 S.W.3d 503, 507 (Tenn. 2004)(citations omitted).
Section 29-26-121 of the Tennessee Code provides:
(a)(1) Any person, or that person’s authorized agent, asserting a potential claim
for medical malpractice shall give written notice of the potential claim to each
health care provider that will be a named defendant at least sixty (60) days
before the filing of a complaint based upon medical malpractice in any court
of this state.
(2) The notice shall include:
(A) The full name and date of birth of the patient whose
treatment is at issue;
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(B) The name and address of the claimant authorizing the
notice and the relationship to the patient, if the notice is not sent
by the patient;
(C) The name and address of the attorney sending the
notice, if applicable;
(D) A list of the name and address of all providers being
sent a notice; and
(E) A HIPAA compliant medical authorization permitting
the provider receiving the notice to obtain complete medical
records from each other provider being sent a notice.
(3) The requirement of service of written notice prior to suit is deemed
satisfied if, within the statutes of limitations and statutes of repose applicable
to the provider, one of the following occurs, as established by the specified
proof of service, which shall be filed with the complaint:
(A) Personal delivery of the notice to the health care
provider or an identified individual whose job function includes
receptionist for deliveries to the provider or for arrival of the
provider’s patients at the provider’s current practice location.
Delivery must be established by an affidavit stating that the
notice was personally delivered and the identity of the individual
to whom the notice was delivered; or
(B) Mailing of the notice:
(i) To an individual health care provider at both the
address listed for the provider on the Tennessee department of
health website 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
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location where the provider last provided a medical service to
the patient.
(4) Compliance with the provisions of 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.
(b) If a complaint is filed in any court alleging a claim for medical
malpractice, the pleadings shall state whether each party has complied with
subsection (a) and shall provide the documentation specified in subdivision
(a)(2). The court may require additional evidence of compliance to determine
if the provisions of this section have been met. The court has discretion to
excuse compliance with this section only for extraordinary cause shown.
(c) 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. Personal service
is effective on the date of that service. Service by mail is effective on the first
day that service by mail is made in compliance with subdivision (a)(2)(B). In
no event shall this section operate to shorten or otherwise extend the statutes
of limitations or repose applicable to any action asserting a claim for medical
malpractice, nor shall more than one (1) extension be applicable to any
provider. Once a complaint is filed alleging a claim for medical malpractice,
the notice provisions of this section shall not apply to any person or entity that
is made a party to the action thereafter by amendment to the pleadings as a
result of a defendant’s alleging comparative fault.
(d)(1) All parties in an action covered by this section shall be entitled
to obtain complete copies of the claimant’s medical records from any other
provider receiving notice. A party shall provide a copy of the specified
portions of the claimant’s medical records as of the date of the receipt of a
legally authorized written request for the records within thirty (30) days
thereafter. The claimant complies with this requirement by providing the
providers with the authorized HIPAA compliant medical authorization
required to accompany the notice. The provider may comply with this section
by:
(A) Mailing a copy of the requested portions of the
records with a statement for the cost of duplication of the
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records to the individual requesting the records;
(B) Informing the individual requesting the records that
the records will be mailed only upon advance payment for the
records for the stated cost of the records, calculated as provided
in § 63-2-102. Any request for advance payment must be made
in writing twenty (20) days after the receipt of the request for
medical records. The provider must send the records within
three (3) business days after receipt of payment for the records;
or
(C) Fulfilling such other method that the provider and the
individual requesting the records agree to in writing.
(2) The records received by the parties shall be treated as confidential,
to be used only by the parties, their counsel, and their consultants.
(e) In the event that a complaint is filed in good faith reliance on the
extension of the statute of limitations or repose granted by this section and it
is later determined that the claim is not a medical malpractice claim, the
extension of the statute of limitations and repose granted by this section is still
available to the plaintiff.
Tenn. Code Ann. § 29-26-121 (Supp. 2010). Section 29-26-122 of the Code provides:
(a) In any medical malpractice 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. If the certificate is not filed with the complaint, the
complaint shall be dismissed, as provided in subsection (c), absent a showing
that the failure was due to the failure of the provider to timely provide copies
of the claimant’s records requested as provided in § 29-26-121 or
demonstrated extraordinary cause. 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 § 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, that there is a good
faith basis to maintain the action consistent with the
requirements of § 29-26-115; or
(2) The plaintiff or plaintiff’s counsel has consulted with one (1) or
more experts who have provided a signed written statement confirming that
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upon information and belief they:
(A) Are competent under § 29-26-115 to express an
opinion or opinions in the case; and
(B) Believe, based on the information available from the
medical records reviewed concerning the care and treatment of
the plaintiff for the incident or incidents at issue and, as
appropriate, information from the plaintiff or others with
knowledge of the incident or incidents at issue, that there are
facts material to the resolution of the case that cannot be
reasonably ascertained from the medical records or information
reasonably available to the plaintiff or plaintiffs counsel; and
that, despite the absence of this information, there is a good faith
basis for maintaining the action as to each defendant consistent
with the requirements of § 29-26-115. Refusal of the defendant
to release the medical records in a timely fashion or where it is
impossible for the plaintiff to obtain the medical records shall
waive the requirement that the expert review the medical record
prior to expert certification.
(b) Within thirty (30) days after a defendant has alleged in an answer
or amended answer that a non-party is at fault for the injuries or death of the
plaintiff and expert testimony is required to prove fault as required by §
29-26-115, each defendant or defendant’s counsel shall file a certificate of
good faith stating that:
(1) The defendant or defendant’s counsel has consulted with one (1) or more
experts, which may include the defendant filing the certificate of good faith,
who have provided a signed written statement confirming that upon
information and belief they:
(A) Are competent under § 29-26-115 to express an
opinion or opinions in the case; and
(B) Believe, based on the information reviewed
concerning the care and treatment of the plaintiff for the incident
or incidents at issue, that there is a good faith basis to allege
such fault against another consistent with the requirements of §
29-26-115; or
(2) The defendant or defendant’s counsel has consulted with one (1) or
more medical experts, which may include the defendant filing the certificate
of good faith, who have provided a signed written statement confirming that
upon information and belief they:
(A) Are competent under § 29-26-115 to express an
opinions or opinions in the case; and
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(B) Believe, based on the information reviewed
concerning the care and treatment of the plaintiff for the incident
or incidents at issue, that there are facts material to the
resolution of the case that cannot be reasonably ascertained from
the information reasonably available to the defendant or
defendant's counsel; and that, despite the absence of this
information, there is a good faith basis for alleging such fault
against another, whether already a party to the action or not,
consistent with the requirements of § 29-26-115.
(c) The failure of a plaintiff to file a certificate of good faith in
compliance with this section shall, upon motion, make the action subject to
dismissal with prejudice. The failure of a defendant to file a certificate of good
faith in compliance with this section alleging the fault of a non-party shall,
upon motion, make such allegations subject to being stricken with prejudice
unless the plaintiff consents to waive compliance with this section. If the
allegations are stricken, no defendant, except for a defendant who complied
with this section, can assert, and neither shall the judge nor jury consider, the
fault, if any, of those identified by the allegations. The court may, upon
motion, grant an extension within which to file a certificate of good faith if the
court determines that a health care provider who has medical records relevant
to the issues in the case has failed to timely produce medical records upon
timely request, or for other good cause shown.
(d)(1) Subject only to subdivision (d)(2), the written statement of an
expert relied upon in executing the certificate of good faith is not discoverable
in the course of litigation.
(2) If a party in a medical malpractice action subject to this section
prevails on the basis of the failure of an opposing party to offer any competent
expert testimony as required by § 29-26-115, the court may, upon motion,
compel the opposing party or party's counsel to provide to the court a copy of
each such expert’s signed written statement relied upon in executing the
certificate of good faith. The medical experts may be compelled to provide
testimony under oath, as determined by the court, for the purposes of
determining that party's compliance with subsection (a) or (b).
(3) If the court, after hearing, determines that this section has been
violated, the court shall award appropriate sanctions against the attorney if the
attorney was a signatory to the action and against the party if the party was
proceeding pro se. The sanctions may include, but are not limited to, payment
of some or all of the attorney's fees and costs incurred by a party in defending
or responding to a claim or defense supported by the non-complying certificate
of good faith. If the signatory was an attorney, the court shall forward the order
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to the board of professional responsibility for appropriate action. Upon proof
that a party or party’s counsel has filed a certificate of good faith in violation
of this section in three (3) or more cases in any court of record in this state, the
court shall, upon motion, require the party or party's counsel to post a bond in
the amount of ten thousand dollars ($10,000) per adverse party in any future
medical malpractice case to secure payment of sanctions for any violation of
this section in such case.
(4) A certificate of good faith shall disclose the number of prior
violations of this section by the executing party.
(5) The administrative office of the courts shall develop a certificate of
good faith form to effectuate the purposes of this section.
Tenn. Code Ann. § 29-26-122 (Supp. 2010).
Under sections 29-26-121(b) and 29-26-122(a), the trial court has the discretion to
excuse compliance with the sections only when extraordinary cause is demonstrated. In
Howell, we held that, in an action first filed before the effective date of the statute, nonsuited,
and re-commenced only five days after the date the statute became effective on October 1,
2008, the trial court erred by not excusing compliance with the notice provisions of section
29-26-121. Howell v. Claiborne and Hughes Health Ctr., No. M2009-01683-COA-R3-CV,
2010 WL 2539651, at *17 (Tenn. Ct. App. June 24, 2010). In so holding, we found that the
defendants had notice of the claims against it by virtue of the claim previously filed. Id. at
*16. We adopted the reasoning of the federal district court in Jenkins v. Marvel, holding that
the legislative intent of the notice provisions were met where the defendant had notice of the
claims against it and ample time to investigate and possibly settle the claim. Id. at *16-17
(citing Jenkins v. Marvel, 683 F. Supp. 2d 626 (E.D. Tenn. Jan. 14, 2010)).
We note, however, that both Howell and Jenkins were claims that were re-filed only
days after the notice provisions went into effect in 2008. Further, in both cases, the plaintiffs
filed the certificate of good faith required by Tennessee Code Annotated § 29-26-122. Thus
the legislative purposes of the statutory provisions were accomplished in both cases where
Defendants had actual notice of the claims asserted against them, ample opportunity to settle
the claims, and the merits of the claims had been demonstrated. Jenkins, 683 F.Supp.2d at
639; Howell, 2010 WL 2539651, at *16-17. In Howell, moreover, our holding was
predicated on the “unique circumstances of [that] case.” Howell, 2010 WL 2539651, at *17.
The “unique circumstances” present in Howell and Jenkins are not present in this case,
however. Mr. Myers voluntarily dismissed his original lawsuit after the statutory provisions
became effective. He re-filed his claim on September 30, 2009, a full three months after the
amendments to the provisions became effective. Although, as the Jenkins court observed,
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“good cause” is not defined by the statute, in this case, no reason has been proffered by Mr.
Myers which would excuse compliance with the notice provisions. In his brief to this Court,
Mr. Myers asserts only that the notice requirement prescribed by the statute is not necessary
where the Defendants had “forewarning that they could possibly face a lawsuit” and an
opportunity to settle the matter more than 60 days prior to the filing of his September 2009
complaint. (Brief at 4) His argument, as we perceive it, is that the requisites of the statute
are not mandatory where Defendants have not demonstrated prejudice.
In DePue v. Schroeder, we recently held that the statutory requisites of section 29–26-
121 were not satisfied where the plaintiff filed his complaint 53 days after sending the
requisite notice to the defendants. DePue v. Schroeder, No. E2010-00504-COA-R9-CV,
2011 WL 538865 (Tenn. Ct. App. Feb. 15, 2011). The plaintiff in DePue argued that she had
complied with the spirit of the statute, and the trial court denied defendants’ motion to
dismiss on the grounds that there had been substantial compliance with the statute and that
no prejudice had resulted from the premature filing of the complaint. Id. We held that,
although the plaintiff had filed a certificate of good faith demonstrating that the claim had
merit, and although the premature filing of the complaint was due to attorney over-sight,
there was no showing of “extraordinary cause” that would excuse compliance with the
statute. We stated that the unambiguous language of the statute indicated the legislature’s
intent that compliance be mandatory. Id.
Mr. Myers additionally asserts that a certificate of good faith was not required in this
case. He argues that his claim was “more than amply vetted and screened for merit before
it was filed,” and that the proceedings in the previously filed lawsuit served the statutory
purpose of “weeding out” a lawsuit that lacked merit. In Barnett v. Elite Sports Medicine,
however, we applied the certificate of good faith requirements mandated by section 29-26-
122 to an action initiated prior to the effective date of the statute as amended, nonsuited, and
re-filled subsequent to the effective date. Barnett v. Elite Sports Med., No. M2010-00619-
COA-R3-CV, 2010 WL 5289669 (Tenn. Ct. App. Dec. 17, 2010). Upon review of the record
in Barnett, we determined that the plaintiff had failed to demonstrate the extraordinary cause
necessary to excuse the filing of the certificate of good faith. Id. at *3. Again, the statute is
clear. The certificate of good faith can be waived only upon a showing of extraordinary
cause. Mr. Myers finally asserts that the trial court was “justified in waiving” the
requirements of sections 29-26-121 and 122 “due to the previous two years of litigation.”
He cites Jenkins v. Marvel in support of the proposition that the voluntary dismissal and re-
filing of an action gives rise to a “unique circumstance” that is tantamount to “extraordinary
cause.” We must disagree.
As noted above, Jenkins and Howell involved actions that were re-filed within days
of the effective date of the statute. Further, the plaintiffs in both cases filed the required
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certificates of good faith. In the present case, Mr. Myers references no cause justifying
waiver of the statutory mandates other than the existence of his original lawsuit, which was
nonsuited after sections 29-26-121 and 122 became effective, and re-filed 90 days after the
July 1, 2009, effective date of the amendments. Mr. Myers has demonstrated no cause that
would support waiver of the statutes, much less extraordinary cause. Thus, it was not within
the discretion of the trial court to waive the requisites of Tennessee Code Annotated §§ 29-
26-121 and 29-26-122 in this case.
Holding
In light of the foregoing, the judgment of the trial court is reversed, and we remand
this matter to the trial court for dismissal. Costs of this appeal are taxed to the appellee,
Curtis Myers.
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DAVID R. FARMER, JUDGE
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