Shawn Howell, Individually and as Administrator for the Estate of Jesse Franklin Browning, Jr. v. Claiborne and Hughes Health Center

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
May 27, 2010 Session
SHAWN HOWELL, Individually and as Administrator for the Estate of
JESSE FRANKLIN BROWNING, JR. v.
CLAIBORNE AND HUGHES HEALTH CENTER
Direct Appeal from the Circuit Court for Williamson County
No. 08625 Timothy L. Easter, Judge
No. M2009-01683-COA-R3-CV - Filed June 24, 2010
This is a medical malpractice action. Appellant originally filed a claim in 2007 in the name
of an estate. The original claim was subsequently non-suited. Less than one year later, the
claim was then re-filed, also in the name of an estate. With permission of the court, the
Appellant later amended the complaint to name the administrator of the estate as the plaintiff.
However, upon the Appellee’s motion, the trial court dismissed the complaint finding: (1)
the complaint was barred by the statute of limitations as there were no allegations in the
complaint which would invoke the savings statute; (2) the complaint failed to state with
particularity the specific acts of negligence; and (3) that the Appellant failed to comply with
the notice requirements for a medical malpractice action found in Tenn. Code. Ann. § 29-26-
121. Finding that the trial court erred, we reverse the decision of the trial court and remand
for further proceedings.
Tenn. R. App. P. 3. Appeal as of Right; Judgment of the Circuit Court Reversed and
Remanded
J. S TEVEN S TAFFORD, J., delivered the opinion of the Court, in which D AVID R. F ARMER, J.,
and H OLLY M. K IRBY, J., joined.
A. Allen Smith, III, Goodlettsville, Tennessee, for the appellant, Shawn Howell.
David L. Steed, Nashville, Tennessee, for the appellees, Claiborne and Hughes Health
Center.
OPINION
The first complaint in this case was filed on July 5, 2007, in the name of the “Estate
of Jesse Franklin Browning, Jr.,” against the Appellee herein, Claiborne and Hughes Health
Center (“CHHC”). Mr. Browning had been a resident at CHHC from September, 2004 until
July 19, 2006. Specifically, the complaint alleged that Mr. Browning died on July 20, 2006,
as a result of severe dehydration due to the alleged negligent care and supervision he received
at CHHC. The complaint did not identify any other individual or entity as a plaintiff, nor did
the complaint assert that any proceedings had been initiated to create an estate for Mr.
Browning. According to the Appellee’s brief, CHHC filed a motion to dismiss the initial
complaint. A copy of the “Motion to Dismiss or For More Particular Statement” does appear
in the record as an attachment to one of CHHC’s filings. In this motion CHHC argued that
the original lawsuit should be dismissed as there was no named plaintiff in accordance with
Tenn. Code. Ann. § 20-5-1071 and the Tenn. Rules of Civil Procedure. The trial court heard
arguments on this motion on October 15, 2007, and on October 29, 2007 entered an order
granting CHHC’s motion by ordering Plaintiff to file an amended complaint, “including a
Plaintiff in compliance with the Tennessee Rules of Civil Procedure and Tenn. Code Ann.
20-5-107,” within fifteen days. However, instead of amending the complaint, the Plaintiff
chose to voluntarily non-suit its claim. A notice of voluntary non-suit was filed on
November 2, 2007, and an order of voluntary non-suit was entered on November 28, 2007.
On October 6, 2008, a second complaint was filed. Like the initial complaint, the
second complaint named the “Estate of Jesse Franklin Browning, Jr.” as the plaintiff, and
again did not identify any other individual or entity as a plaintiff, nor did this complaint assert
that an estate had been opened for Mr. Browning. On November 7, 2008, CHHC filed a
Tenn. R. Civ. P. 12 motion to dismiss the second complaint. For grounds, CHHC again
asserted that the second complaint, like the first complaint does not include a proper plaintiff,
and is, therefore, a nullity under Tenn. Code Ann. §20-5-107. In its motion, CHHC also
argues that the second complaint should be dismissed because : (1) the complaint was barred
by the statute of limitation because it was filed more than two years after Mr. Browning’s
1
Tenn. Code. Ann. § 20-5-107 details who may bring a claim for wrongful death:
Prosecution of Action by representative or surviving spouse or next of kin-
(a) The action may be instituted by the personal representative of the
deceased or by the surviving spouse in the surviving spouse’s own name,
or if there is no surviving spouse, by the children of the deceased or by the
next of kin; also without the consent of the personal representative, either
may use the personal representative’s name in bringing and prosecuting the
suit, on giving bond and security for costs, or in the form prescribed for
paupers. The personal representative shall not, in such case, be responsible
for costs, unless the personal representative signs the prosecution bond in
an individual capacity.
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death; and (2) in the event the case is not dismissed, Tenn. R. Civ. P. 12.05 requires a more
definite or particular statement of the claim.
In response to CHHC’s motion to dismiss the second complaint, Plaintiff’s counsel
filed a response brief on December 2, 2008, with the initial complaint and the order of
voluntary dismissal attached thereto. In its brief, Plaintiff acknowledged the following:
3. The instant complaint was refiled on October 6, 2008. In
anticipation of creation of the decedent’s estate and appointment
of his daughter, Mrs. Shawn Howell, as Administrator, the
Complaint was refiled naming the “Estate of Jesse Franklin
Browning, Jr.” as the party Plaintiff.
4. At the time of his death, the decedent had four living
[children].... Accordingly, bond waiver forms and waivers
permitting Ms. Howell to serve as Executrix were sent to each
of the decedent’s surviving issue. Unfortunately, not all of the
forms have been returned frustrating efforts to formally set-up
the Estate, nevertheless, following diligent and good-faith
efforts to contact all surviving issue. Counsel is, concomitant to
this response, filing the Petition for the setting-up of the Estate
and appointment of Ms. Howell as Administrator. The Petition
is expected to be heard on December 18, 2008 in the Chancery
Court, Probate Division for Williamson County, Tennessee.
Based upon the foregoing, on December 3, 2008, the Plaintiff filed a motion
requesting leave to amend the October 6, 2008 complaint to list Shawn Howell, individually,
and on behalf of the Estate of Jesse Browning, as plaintiff, and to include information
concerning the filing of the original complaint, as well as its voluntary dismissal. Even
though the record indicates that Mr. Browning was survived by a spouse, Plaintiff asserted
that Tenn. Code Ann. §20-5-107 “expressly permits an action to be maintained by the
surviving children of the deceased, including Ms. Shawn Howell.” Plaintiff asserted that Mr.
Browning’s wife suffered from dementia at the time of the filing of the complaints. CHHC
opposed the motion to amend the second complaint.
On December 8, 2008, the trial court heard CHHC’s motion to dismiss and/or for
more definite statement and the Plaintiff’s motion to amend the complaint. By Order of
January 8, 2009, the court granted the motion to amend the complaint. Specifically, the court
allowed the Plaintiff to amend its complaint to include Ms. Howell as an individual plaintiff,
and on behalf of the Mr. Browning’s estate. Moreover, the court allowed Plaintiff to amend
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its complaint to include allegations concerning the original complaint and its voluntary
dismissal. Finally, the court granted CHHS’s motion for a more definite statement, ordering
amendment of the complaint to include “allegations regarding the specific acts...in this matter
sufficient to give defendant notice of all acts that are alleged in this litigation, and the dates
of such acts.” The court reserved its ruling on CHHS’s motion to dismiss, pending filing of
the amended complaint. Pursuant to this order, Plaintiff had until January 7, 2009 to file an
amended complaint.
On or about January 7, 2009, Plaintiff filed its first amended complaint.2 This
complaint listed “Jesse Franklin Browning, Jr., deceased by and through Shawn Howell, as
next of friend of Jesse Franklin Browning, Jr” as the Plaintiff. This complaint was
substantially the same as the original complaint. However, it included an allegation that his
family, including Shawn Howell, suffered a loss of consortium and that therefore the Plaintiff
is entitled to damages.
Also on January 7, 2009, Plaintiff filed a motion for extension of time to file its
amended complaint and motion for extension of time pursuant to Tenn. Code Ann. §29-26-
121 (which requires a plaintiff to give sixty days notice prior to filing a medical malpractice
claim), and Tenn. Code Ann. §29-26-122 (which requires a Certificate of Good Faith).
Plaintiff, also on January 7, 2009, filed a motion requesting permission to file a second
amended complaint. In this motion, Plaintiff asserts that he seeks to amend the complaint
to name Shawn Howell, Administrator of the Estate of Jesse Franklin Browning, Jr., as the
party Plaintiff. The motion asserted that Ms. Howell filed a petition to be named the
administrator of the estate on December 18, 2008, but that the Chancery Court had “passed
on” the petition. According to the motion, the Plaintiff expected Ms. Howell to be named
the administrator of the estate within the next sixty days. Plaintiff also asserted that he was
in the process of providing notice to the defendants pursuant to Tenn. Code. Ann. § 29-26-
121 and in obtaining a good faith certificate pursuant to Tenn. Code Ann. § 29-26-122. Based
on these facts, Plaintiff requested permission to amend his complaint a second time.
In response, CHHC filed a renewed motion to dismiss on April 6, 2009. In this
renewed motion, CHHC asserted that the first amended complaint should be dismissed
because (1) it was barred by the statute of limitations, (2) the complaint had not been
amended to name a Real Party in Interest as ordered, (3) Plaintiff had not filed a certificate
2
A copy of Plaintiff’s first amended complaint marked as filed does not appear in the record.
However, there is a copy of the first amended complaint in the record marked “Received January 7, 2009
Circuit Court.” Both parties through their respective briefs appear to concede that there were two amended
complaints filed.
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of good faith as required by Tenn. Code Ann. § 29-26-122( c ) or notice as required by Tenn.
Code. Ann. § 29-26-121(b), and (4) that the complaint fails to state with particularity the
basis for liability.
On April 30, 2009, CHHC filed a motion to rehear its motion to dismiss. The motion
indicates that the motion to dismiss was taken under advisement on April 13, 2009. Again,
CHHC argues that the trial court should dismiss Plaintiff’s first amended complaint.
A hearing on all pending motions was held on May 11, 2009. At that hearing, the
court considered additional authority filed by the parties, as well as their respective proposed
findings of fact and conclusions of law. By Order of May 22, 2009, the trial court denied
CHHC’s motion to dismiss the complaint and the first amended complaint. The trial court
granted the Plaintiff’s motion to file a second amended complaint, thereby giving Plaintiff
until June 22, 2009 to file a complaint “naming the proper real party in interest as previously
ordered by the court.” In addition, Plaintiff was given until June 22, 2009 to “comply with
the notice and filing provisions of [Tenn. Code Ann.] §29-26-121 and [Tenn. Code Ann.]
§29-26-122.” In reaching its decision, the court made the following, relevant comments:
The Court acknowledges that this is its second Order in which
the Court is allowing the Plaintiff an opportunity to properly
present its Complaint for prosecution of their alleged claims in
this matter.
The trial court also specifically found that CHHC’s opportunity to raise the defenses of: (1)
statute of limitations (under Tenn. Code Ann. §§29-26-116 and 28-3-104), (2) failure to
comply with Tenn. Code Ann. §28-1-105(a), and (3) non-compliance with Tenn. Code Ann.
§§29-26-121 and 29-26-122 “shall not be lost and shall survive for future potential argument
and defense.”
On June 22, 2009, Plaintiff filed its second amended complaint in the name of the
Appellant, “Jesse Franklin Browning, Jr., by and through Shawn Howell, as Administrator
of the Estate of Jesse Franklin Browning, Jr., Deceased.”3 This complaint is substantially
similar to the others. The complaint included an allegation that Mr. Browning’s family,
including his wife Dorothy Browning, had suffered a loss of consortium and that therefore
Plaintiff was entitled to damages. Plaintiff attached to the amended complaint a copy of a
3
The second amended complaint is styled “Amended Complaint.” However, it is clear from the
record that this is actually the second amended complaint.
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letter sent by the attorney to CHHC’s agent, providing notice of the potential claim.4 Also,
on June 22, 2009, in an effort to comply with Tenn. Code Ann. §29-26-122, the Plaintiff filed
a Certificate of Good Faith which indicated that the Plaintiff’s attorney had consulted with
an expert who found merit in Plaintiff’s claim.
On July 7, 2009, CHHC filed a motion to dismiss the second amended complaint. In
relevant part, CHHC argued that the case was barred by the statute of limitations because it
was filed more than a year after Mr. Browning’s death, that the Savings Statute was not
invoked or even pled, and that there was no “commencement” of an action within the statute
of limitations for purposes of the Savings Statute, even if it had been pled.
The motion was heard on July 20, 2009. By Order of August 3, 2009, the court
granted the motion, thereby dismissing Plaintiff’s second amended complaint. Specifically,
the court found that:
1. The case is barred on its face by the statute of limitations, in
that the pleadings establish that the case was filed more than a
year after the death of Jesse Browning on July 19, 2006. There
are no allegations in the [Second] Amended Complaint filed on
June 22, 2009 that avoid the application of the statute of
limitations. There are no facts stated in the Second Amended
Complaint that would invoke the Savings Statute; in fact, the
Savings Statute is not even referenced in the Second Amended
Complaint, nor is there any allegation of “commencement” of an
action within the statute of limitations for purposes of the
Savings Statute. The court twice previously permitted Plaintiff
to amend the Complaint to respond to issues raised by
Defendant’s Motions to Dismiss. The Court’s Order of January
8, 2009 permitted amendment and stated that no further
amendments to the pleadings would be permitted. The Court
nevertheless again permitted Plaintiff to amend the Complaint
by Order dated May 22, 2009. Despite these two amendments
to the Complaint, the “four corners” of the Complaint still
demonstrate that the case is barred by the one year statute of
limitations.
The court also based its decision to dismiss the complaint on its finding that the complaint
4
We note that the parties dispute whether the agent to whom the letter was addressed, was the
authorized agent for CHHC. Based on our decision below, we do not find this dispute to be material.
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failed to state, with particularity the specific acts of negligence, with dates, as required by the
Court’s previous order. The court also found that Plaintiff had failed to deliver notice to
CHHC prior to June 22, 2009, as required under Tenn. Code Ann. §29-26-121 and ordered
by the court.
Ms. Howell, as administrator of the estate, appeals, raising three issues for review as
stated in the brief:
1. The trial court erred by dismissing the Plaintiff/Appellant’s
case based upon a failure to specifically plead the savings
statute, Tenn. Code Ann. §28-1-105(a), within the “four
corners” of the complaint.
2. The trial court erred by granting the Defendant/Appellee’s
motion for a more particular statement and erred again by
dismissing the action based upon a lack of particularity
contained in the second amended complaint.
3. The trial court erred by dismissing the complaint based upon
a failure to deliver notice to Defendant pursuant to Tenn. Code
Ann. §29-26-121.
Standard of Review
It is well settled that a Tenn. R. Civ. P. 12.02 motion to dismiss a complaint for failure
to state a claim upon which relief can be granted tests the legal sufficiency of the complaint.
It admits the truth of all relevant and material allegations but asserts that such allegations do
not constitute a cause of action as a matter of law. See Riggs v. Burson, 941 S.W.2d 44(Tenn.1997). Obviously, when considering a motion to dismiss for failure to state a claim
upon which relief can be granted, we are limited to the examination of the complaint alone.
See Wolcotts Fin. Serv., Inc. v. McReynolds, 807 S.W.2d 708 (Tenn. Ct. App.1990). The
basis for the motion is that the allegations in the complaint, when considered alone and taken
as true, are insufficient to state a claim as a matter of law. See Cornpropst v. Sloan, 528
S.W.2d 188 (Tenn.1975). In considering such a motion, the court should construe the
complaint liberally in favor of the plaintiff, taking all the allegations of fact therein as true.
See Cook by and through Uithoven v. Spinnaker's of Rivergate, Inc., 878 S.W.2d 934(Tenn.1994).
However, if a party files a motion to dismiss and includes matters outside the
pleadings, the trial court, upon considering the matters outside the pleadings, must review
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the motion as a motion for summary judgment pursuant to Tenn. R. Civ. P. 56. Tenn. R. Civ.
P. 12.02; see Staats v. McKinnon, 206 S.W.3d 532, 543 (Tenn. Ct. App. 2006). A trial
court’s decision to grant a motion for summary judgment presents a question of law. Our
review is therefore de novo with no presumption of correctness afforded to the trial court’s
determination. Bain v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997). “This Court must make
a fresh determination that the requirements of Tenn. R. Civ. P. 56 have been satisfied.”
Mathews Partners, LLC v. Lemme, No. M2008-01036-COA-R3-CV, 2009 WL 3172134 at
*3 (citing Hunter v. Brown, 955 S.W.2d 49, 50-51 (Tenn. 1977).
Savings Statute
Pursuant to Tenn. Code Ann. § 28-1-105 ( the “Savings Statute,”) a voluntarily
dismissed lawsuit may be re-filed within one year of such dismissal:
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, ... 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....
Because Tennessee law favors the resolution of disputes on their merits, the Savings
Statute must be given a broad and liberal construction. Henley v. Cobb, 916 S.W.2d 915, 916
(Tenn.1996). The purpose behind the Savings Statute is “‘to aid the courts in administering
the law fairly between litigants without binding them to minor and technical mistakes made
by their counsel in interpreting the complexities of our laws of procedure.’” Id. at 917
(quoting Gen. Accident Fire & Life Assurance Corp. v. Kirkland, 210 Tenn. 39, 356 S.W.2d
283, 285 (1962)). To determine whether the Savings Statute is applicable, the court must
ascertain whether the defendant had notice: “[N]otice to the party affected is the true test of
the statute's applicability.... ‘The important consideration is that, by invoking judicial aid, a
litigant gives timely notice to his adversary of a present purpose to maintain his rights before
the courts.’” Id. at 917-18 (quoting Burns v. People's Tel. & Tel. Co., 161 Tenn. 382, 33
S.W.2d 76, 78 (1930)). Thus, the Savings Statute is only applicable when the original
complaint and the new complaint allege substantially the same cause of action, which
includes identity of the parties. See Turner v. Aldor Co. of Nashville, 827 S.W.2d 318, 321
(Tenn. Ct. App.1991). It is not necessary that the two complaints be identical, only that the
allegations arise out of the same transaction or occurrence. See Energy Sav. Prods., Inc. v.
Carney, 737 S.W.2d 783, 784-85 (Tenn. Ct. App.1987) (holding that the Savings Statute was
applicable to the second complaint, which had been amended to add a new claim, because
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the claim arose out of the same conduct, transaction, or occurrence alleged in the original
action and the plaintiff, therefore, could have added the claim to the first action under Tenn.
R. Civ. P. 15). In determining whether there is identity of the parties between the two actions,
we are mindful that, though the caption of a case is intended to identify the parties, the
allegations of the complaint itself dictate the true parties to the lawsuit. Goss v. Hutchins,
751 S.W.2d 821, 824-25 (Tenn.1988).
A plaintiff relying upon the Savings Statute has the burden of showing that the case
is not barred by the statute of limitations, if that question is raised by the defendant:
As enunciated in East Tennessee Coal Co. v. Daniel, when the
plaintiff's declaration shows upon its face that the claim sued
upon is barred by the statute of limitations, then a plea of the
statute interposed by the defendant will shift the burden of
producing evidence to the plaintiff who must show that his
action falls within the saving statute; i.e., he must prove that his
original action was instituted within one year after the taking
occurred.
Knox Co. v. Moncier, 455 S.W.2d 153, 157 (Tenn. 1970).
In this case, it is undisputed that Mr. Browning died on July 20, 2006, and that the
initial complaint was filed on July 5, 2007. Following the November 28, 2007 non-suit, the
case was re-filed on October 6, 2008, which would be outside the one-year statute of
limitations, Tenn. Code Ann. §§ 28-3-104 and 29-26-116, unless the Savings Statute is
applicable. If, however, the Savings Statute is not applicable, then the October 6, 2008 filing
is outside the one-year statute of limitations, and the case was properly dismissed. To
determine whether the Savings Statute is applicable in this case, we first address whether the
original action was “commenced” within the meaning of the Savings Statute. Rule 3 of the
Tennessee Rules of Civil Procedure provides simply that “[a]ll civil actions are commenced
by filing a complaint with the clerk of the court.” Tenn. R. Civ. P. 3 describes some
circumstances under which the original commencement may not toll the statute of limitations,
as where process is not issued within thirty days or not served within thirty days of issuance
and the plaintiff fails to obtain issuance of new process within the prescribed time. Id. Rule
3 does not, however, address the effect of the filing of a lawsuit by an improper party. See
id.
Our Supreme Court in Chapman v. King, 572 S.W.2d 925 (Tenn. 1978) discussed
whether the proper party in a wrongful death case should be allowed to be substituted as the
real party in interest after the statute of limitations expired. Like this case, Chapman was
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a wrongful death case. Id. at 926. In Chapman, however, the action was originally filed by
the parents of the decedent. Id. Unfortunately, the parents were not the proper party to file
the lawsuit as the wrongful death statute granted that right exclusively to the decedent’s
husband. Id. The Chapman defendants filed a motion to dismiss on the basis that the parents
had no right of action. Id. The decedent’s husband then moved to be substituted as the
plaintiff. Id. However, this was done after the statute of limitations expired and the trial
court denied his request for substitution. Id. 926-27.
In reversing the trial court, our Supreme Court reviewed Tennessee Rule of Civil
Procedure 17.01 and 15.03. Id. at 927. The Chapman court recognized that the parents of
the decedent had no right to bring the action, but still held that the trial court erred in
dismissing the action and not allowing the husband to be substituted as the plaintiff. Id. The
Chapman court noted that Tenn. R. Civ. P. 17.01 provides in pertinent part:
No action shall be dismissed on the ground that it is not
prosecuted in the name of the real party in interest until a
reasonable time has been allowed after objection for ratification
or commencement by, or joinder or substitution of, the real party
in interest; and such ratification, joinder, or substitution shall
have the same effect as if the action had been commenced in the
name of the real party in interest.”
The Chapman court noted the “liberality of this Court in allowing the addition or substitution
of a proper party plaintiff for an improper plaintiff although the statute of limitations would
have prevented the filing of a new suit....” Id. (citing Committee Comment to Rule 15.03,
Tenn. R. Civ. P.).5 The Chapman court then specifically noted, that “[t]he cases in which
5
As provided in Chapman, the Committee Comment to Rule 15.03 of the Tenn. R. Civ. P. 15.03
provides:
Under prior law, an amendment which added a new party plaintiff or
substituted a party plaintiff, related back to the institution of the original
suit, and thus could be made even though an applicable statute of
limitations would have barred a new suit by the new or substituted party.
* * *
But where the amendment sought relief against a new party defendant after
the statute of limitations has barred a new suit, such defendant could
successfully plead the bar.
(continued...)
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this liberality has been most evident have been wrongful death actions in which a wrong
party has brought the suit.” Id. at 928 (citations omitted). As explained in Chapman, “the
reason for this liberal policy in wrongful death cases has been the fact that the cause of action
is not changed by the substitution of the proper party plaintiff for the improper plaintiff,...and
that such a substitution does not prejudice the defendant who has had notice, from the
beginning of the suit, of the nature of the cause of action and that it was being pressed against
him.” Id. (internal citations omitted). The Chapman court turned to the reasoning behind
the Fed. R. Civ. P. 17.01 with respect to substitution of a plaintiff after the statute of
limitations had run, holding that:
it has come to be settled law that where, either by mistake of law
or fact, a suit is brought in the name of a wrong party, the real
party in interest, entitled to sue upon the cause of action
declared on, may be substituted as plaintiff...; but the
substitution of the name of the proper plaintiff has relation to the
commencement of the suit, and the same legal effect as if the
suit had been originally commenced in the name of the proper
plaintiff.
Id. (citing Wallis v. United States, 102 F. Supp. 211, 212 (E.D.N.C. 1951). Our Supreme
Court held that based on Tenn. R. Civ. P. 17.01, the husband, as the real party in interest
should be allowed to substitute as the plaintiff, and that the substitution “‘shall have the same
effect as if the action had been commenced in the name of the real party in interest.’” Id. at
929.
This Court previously addressed a similar issue in Foster v. St. Joseph Hospital, 158
S.W.3d 418 (Tenn. Ct. App. 2004). In Foster, the decedent’s husband gave his grand-
nephew power of attorney. Id. at 419. The grand-nephew then filed a wrongful death action
against the hospital and doctors, alleging medical malpractice. Id. The grand-nephew then
voluntarily non-suited the first action. Id. No objection to his capacity to file the lawsuit was
made prior to the action being dismissed. Id. However, he then re-filed the action outside
the statute of limitations, but within the one-year savings statute, and added the decadent’s
husband as a plaintiff. Id. The defendants filed a motion for summary judgment arguing
that the second action was barred by the statute of limitations. Id. The trial court in Foster
granted the motion, finding that the grand-nephew was not a proper party and therefore the
first action was a nullity and did not toll the statute of limitations. Id. On appeal, this Court
reversed the trial court, holding that the first lawsuit was merely voidable and the second
5
(...continued)
Chapman, 572 S.W.2d at 927-28.
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lawsuit was filed within the time period provided by the savings statute. Id.
In reversing the trial court, the Foster court reviewed the purpose of the savings
statue. As stated in Foster, “Tennessee law favors the resolution of disputes on their merits,
[therefore] the savings statue must be given a broad and liberal construction. Id. at 420
(citing Henley v. Cobb, 916 S.W.2d 915, 916 (Tenn. 1996)). The Foster court then reviewed
the Tennessee Rules of Civil Procedure and the case of Chapman v. King, 572 S.W.2d 925(Tenn. 1978), in order to determine whether the original action was “commenced” for
purposes of the savings statute. Id. at 422. The Foster court noted the “liberality” that
should be applied, as instructed by our Supreme Court, in permitting the proper party to be
substituted for an improper party, even after the expiration of the statute of limitations. Id.
at 424. Recognizing the “avowed liberality” of the Tennessee Supreme Court, this Court
held that the trial court erred in finding that the original lawsuit was a nullity, reasoning that
“[c]learly, under Chapman, if the Defendants had sought to have the [original] lawsuit
dismissed on the grounds that the [grand-nephew] was not the proper party plaintiff, [the
grand nephew] would have had an opportunity to substitute the proper party plaintiff.” Id.
Therefore, this Court found that the original lawsuit did “commence” the action for purposes
of the savings statute. Id.
The case before this Court is strikingly similar to Foster. In the instant case, the
original lawsuit was filed in the name of the Estate of Jesse Franklin Browning, Jr. As with
Foster, the original lawsuit was not filed in the name of a proper party plaintiff, and the
original lawsuit was voluntarily non-suited and then re-filed outside the statute of limitations,
but within the time period provided by the savings statute. However, there are some
differences between this case and Foster: (1) there was an objection filed by the Appellees
in the original lawsuit, unlike Foster; and (2) the second complaint was not filed in the name
of the real party in interest, also unlike Foster. Accordingly, we must determine whether
these differences result in an outcome contrary to Foster. After reviewing the record and
the law on this issue, we find that they do not.
As the Appellees aptly point out, unlike Foster, they filed an objection to the original
lawsuit by filing a motion to dismiss. However, the trial court adjudicated that motion, and
in accordance with Chapman, declined to dismiss the first action and instead granted the
Appellant time to amend the complaint to name a proper plaintiff. The Appellant however,
chose to take a voluntary non-suit instead of amending the complaint to name a proper
plaintiff at that time. Had the Appellant not chosen to take a voluntary non-suit, clearly,
based on Chapman, it would have been permitted to substitute a proper party plaintiff, even
after the expiration of the statute of limitations. Accordingly, the question becomes: did the
Appellant forfeit the right to amend the complaint to name a proper party plaintiff by taking
a voluntary non-suit. We find that it did not. The savings statute confers on a plaintiff, who
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voluntarily non-suits a prior action, the same procedural and substantive benefits that were
available to the plaintiff in the first action. Parnell v. APCOM, Inc., No. M2003-00178-
COA-R3-CV, 2004 WL 2964723, at*5 (Tenn. Ct. App. Dec. 21, 2004)(citing Dukes v.
Montgomery County Nursing Home, 639 S.W.2d 910, 913 (Tenn. 1982). Accordingly, the
Appellant did not forfeit the right to amend the complaint, even outside the statute of
limitations, in order to name a proper party plaintiff. This is especially so considering our
Supreme Court’s specifically expressed policy of liberality in permitting the substitution of
a proper party plaintiff for an improper party plaintiff after the expiration of the statute of
limitations, particularly in wrongful death cases. See Chapman, 572 S.W.2d at 928.
The Appellees submit that based on Foster, because they filed an objection in the
original action, the first action was void and therefore not “commenced” for purposes of the
statute of limitations. We disagree. Foster held that because the grand-nephew would have
been entitled to amend his complaint to name a proper party plaintiff, even outside the statute
of limitations, the original lawsuit was voidable and not void. Foster, 158 S.W.3d at 424.
To support this finding, the Foster court also noted that there was no case law to indicate that
the grand-nephew could not have prosecuted the claim to conclusion absent an objection
from the defendants. Id. Like Foster, the original lawsuit was only voidable because the
Appellant, as the trial court found, had the right to amend its complaint to name the proper
party plaintiff. If the Appellant had not non-suited its action, the trial court could have
dismissed the claim if the Appellant did not properly amend the complaint within the time
period provided by the trial court. However, the trial court declined to do so when
adjudicating CHHC’s motion to dismiss in the first action. Consequently, the fact that the
Appellees filed a motion to dismiss based upon the absence of the proper party plaintiff, does
not affect this Court’s determination that an action was “commenced” for purposes of the
savings statute.
Finally, we do not find the fact that the second action was also not commenced in the
name of the proper party plaintiff to be determinative. As stated, clearly, the Appellant had
the right to amend the complaint within a reasonable time to name the real party in interest.
See Chapman, 572 S.W.2d at 928; Foster, 158 S.W.3d at 424; Tenn. R. Civ. P. 17.01. The
trial court, in the second action, granted the Appellant the right to amend the complaint twice.
The Appellees have not raised an issue with this decision on appeal, and therefore error, if
any, is waived. Osborne v. Mountain Life Ins. Co., 130 S.w.3d 769, N.6 (Tenn. 2004). The
second amended complaint was filed in the name of “Jesse Franklin Browning, Jr., by and
through Shawn Howell, as Administrator of the Estate of Jesse Franklin Browning, Jr.,
Deceased. Therefore, it was filed in the name of the proper party plaintiff. Tenn. Code. Ann.
§ 20-5-107. Moreover, as provided in Chapman, the substitution of the proper party, shall
have the same effect as if the action had been commenced in the name of the real party in
interest.
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In making these determinations, this Court is cognizant of the fact that neither the
original lawsuit nor the original complaint in the second lawsuit was filed in the name of the
proper party plaintiff. However, we are mindful that the purpose of the Savings Statute is
“‘to aide the courts in administering the law fairly between litigants without binding them
to minor and technical mistakes made by their counsel in interpreting the complexities of our
laws and procedure,’” Henley, 916 S.W.2d at 917. Moreover, Tennessee law favors the
resolution of disputes on their merits, therefore the Savings Statute is given a broad and
liberal construction. Id. As discussed in Foster and Chapman, the important consideration
in determining the applicability of the savings statute is timely notice to the defendants.
Here, CHHC, had notice of the claim within the statute of limitations. Therefore, they had
the ability to take the appropriate action to protect themselves.
For the foregoing reasons, this Court finds that the original action was “commenced”
for purposes of the savings statute. We must now determine whether the savings statute was
applicable.
The only issue on appeal as to the applicability of the savings statute is the identity of
the parties. The Appellees assert that because the present action was brought in the name of
Shawn Howell, who is not mentioned in the original action, there is no identity of parties.
We disagree. In determining whether there is identity of the parties between the two actions,
we are mindful that, though the caption of a case is intended to identify the parties, the
allegations of the complaint itself dictate the true parties to the lawsuit. Goss v. Hutchins,
751 S.W.2d 821, 824-25 (Tenn.1988). Both the original complaint and the second amended
complaint in the present lawsuit allege a cause of action based upon the wrongful death of
Mr. Franklin Browning, Jr. As held in Chapman, wrongful death cases are often instituted
in the name of an improper party, but that does not change the change the nature of the cause
of action or prejudice the defendants. Chapman, 572 S.W.2d at 928. Also, while not a
proper party, the original action was brought in the name of the Estate of Franklin Browning,
Jr. Ms. Howell merely serves as a representative of Mr. Browning’s estate in the present
lawsuit. Accordingly, we find that for purposes of the savings statute, there is an identity of
parties.
We next address the trial court’s decision to dismiss the Appellant’s action for failure
to plead facts which would invoke the Savings Statute. CHHC contends that because it was
proceeding on a motion to dismiss, the trial court was only allowed to consider the
allegations contained in the complaint. (Citing this Court’s explanation of the standard of
review for a Motion for Dismiss as stated in 421 Corp. v. Metropolitan Govt’ of Nashville,
36 S.W.3d 469 (Tenn. Ct. App. 2000). According to CHHC, it was entitled to a dismissal
because the Appellant’s complaint failed to state any facts which would invoke the savings
statute.
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CHHC fails to recognize that often motions to dismiss are converted into and
considered as motions for summary judgment when matters outside the pleadings are
considered. This is such standard practice that Tenn. R. Civ. P. 12.02 provides the procedure
for dealing with such motions, requiring “[i]f...matters outside the pleading are presented to
and not excluded by the court, the motion shall be treated as one for summary judgment and
disposed of as provided in Rule 56....” Accordingly, if a party files a motion to dismiss and
includes matters outside the pleadings, the trial court, upon considering the matters outside
the pleadings, must review the motion as a motion for summary judgment pursuant to Tenn.
R. Civ. P. 56. Tenn. R. Civ. P. 12.02; see Staats v. McKinnon, 206 S.W.3d 532, 543 (Tenn.
Ct. App. 2006). In this case, CHHC admitted that a suit was previously filed in its response
to the Appellant’s reply to its first motion to dismiss filed December 10, 2008. Further,
CHHC attached to this response its motion to dismiss from the original lawsuit along with
the order of non-suit. These matters were clearly outside the pleadings of this case. Further,
as stated in the order dismissing the action, the trial court considered “the entire record in this
matter....” Consequently, the trial court should have reviewed CHHC’s motion as a motion
for summary judgment pursuant to Tenn. R. Civ. P. 56.
Because the trial court was required to review the motion as a motion for summary
judgment, we find, after reviewing the record, that the trial court erred in dismissing the
Appellant’s claim for failure to plead the Savings Statute. After reviewing the entire record,
we find that there are no genuine issues of material fact. We find that the parties do not
dispute when the original action was filed or dismissed, nor when the present action was re-
filed. It is clear that the present action was filed within one year of the order of voluntary
non-suit as required by the Savings Statute. Tenn. Code Ann. § 28-1-105. Based on the
undisputed facts, we find that the Appellee’s motion to dismiss should have been denied as
a matter of law as the Appellant fully complied with the Savings Statute.
Particularity of the Complaint
Next, we address Appellant’s contention that the trial court erred in dismissing the
complaint for failure “to state with particularity the specific acts of negligence, with dates,
as required by the [trial court’s] previous order....” Tenn. R. Civ. P. 8 governs pleadings and
provides, in pertinent part:
8.01 Claims for Relief.- A pleading which sets forth a claim for
relief, whether an original claim, counterclaim, cross-claim, or
third-party claim, shall contain: (1) a short and plain statement
of the claim showing that the pleader is entitled to relief; and (2)
a demand for judgment for the relief the pleader seeks. Relief
in the alternative or of several different types may be demanded.
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* * *
8.05 Pleading to Be Concise and Direct-Statutes, Ordinances
and Regulations-Consistency. - (1) Each averment of a
pleading shall be simple, concise and direct. No technical forms
of pleading or motions are required. Every pleading stating a
claim or defense relying upon the violation of a statute shall, in
a separate count or paragraph, either specifically refer to the
statute or state all of the facts necessary to constitute such
breach so that the other party can be duly apprised of the
statutory violation charged. The substance of any ordinance or
regulation relied upon for claim or defense shall be stated in a
separate count or paragraph and the ordinance or regulation shall
be clearly identified. The manner in which violation of any
statute, ordinance or regulation is claimed shall be set forth.
* * *
8.06 Construction of Pleadings. - All pleadings shall be so
construed as to do substantial justice.
Pleadings give notice to the parties and the trial court of the issues to be tried. Courts should
liberally construe complaints in favor of the plaintiff when considering a motion to dismiss.
White v. Revco Discount Drug Centers, Inc., 33 S.W.3d 713, 718 (Tenn. 2000). “‘A
complaint “need not contain in minute detail the facts that give rise to the claim,” so long as
the complaint does “contain allegations from which an inference may fairly be drawn that
evidence on these material points will be introduced at trial.”’” Givens v. Mullikin, 75
S.W.3d 383, 399 (Tenn. 2002)(quoting White, 33 S.W.3d at 725 (quoting Donaldson v.
Donaldson, 557 S.W.2d 60, 61(Tenn. 1977)). Further, averments of time and place are not
required if they are unnecessary to give the defendants notice of the claim. Taylor v.
Lakeside Behavioral Health System, No. W2009-00914-COA-R3-CV, 2010 WL 891879,
*11 (Tenn. Ct. App. March 15, 2010).
We have reviewed the second amended complaint and find that it does aver sufficient
facts to put CHHC on notice of the claim. The complaint alleges that Mr. Browning resided
at CHHC from September 2004 until July 19, 2006. It alleges that CHHC was understaffed,
causing Mr. Browning to suffer harm from dehydration, malnutrition, pain and suffering,
poor hygiene, mental anguish, humiliation, and death. The complaint also alleges that Mr.
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Browning required assistance with daily activities, and that CHHC failed to provide
assistance. Further, the complaint alleges that CHHC was aware of the neglect of it residents
that was occurring due to “staffing problems.” As to negligence, the allegations in the
complaint span three pages and specifically allege that CHHC beached a duty they owed to
Mr. Browning through allegations such as a failure to provide him with basic and necessary
care and supervision; failure to protect him from abuse and neglect; failure to adequately
hire, train, supervise and retain a sufficient staff; failure to ensure that Mr. Browning
received the prescribed treatment and diet, necessary supervision, and appropriate care; and
a failure to comply with state and federal law. The complaint then alleges that Mr.
Browning’s injuries were proximately caused by the acts or omissions described.
Additionally, the complaint alleges causes of action for : negligence per se based upon the
Tennessee Nursing Home Residents Rights Act, Tenn. Code Ann. § 68-11-901 et seq.; gross
negligence, willful, wanton, reckless, malicious and/or intentional misconduct; negligence
pursuant to the Tennessee Medical Malpractice Act, Tenn. Code. Ann. § 29-26-115, et seq.;
violation of the Tennessee Adult Care Protection Act, Tenn. Code. Ann. § 71-6-101 et seq.;
negligent or intentional misrepresentation based upon representations that the defendants had
adequate staff; violations of the Tennessee Consumer Protection Act, Tenn. Code. Ann. § 47-
18-101 et seq; and survival and wrongful death claims. As to the medical malpractice claim,
the complaint specifically alleges that CHHC owed a duty to Mr. Browning and breached
that duty through allegations such as the failure to provide and ensure adequate nursing care
plans; failure to provide adequate therapy and exercise; failure to provide care, treatment and
medication in accordance with the physician’s orders; failure to timely notify the physicians
of significant changes in Mr. Browning’s condition; failure to adequately and appropriately
monitor Mr. Browning; failure to provide adequate treatment for persistent, unresolved
problems; failure to provide adequate fluids to Mr. Browning; failure to transfer Mr.
Browning to a hospital when he developed conditions beyond the treatment capabilities of
CHHC; and failure to maintain medical records.
After reviewing the complaint, we find that the Appellant pled sufficient facts to give
notice to CHHC of the claims against it. Further, the Appellant complied with Tenn. R. Civ.
P. 8.05 and the requirements for pleading violations of a statute by specifically alleging
violations of the Tennessee Nursing Home Residents Rights Act, Tenn. Code Ann. § 68-11-
901 et seq; the Tennessee Medical Malpractice Act, Tenn. Code. Ann. § 29-26-115, et seq.;
the Tennessee Adult Care Protection Act, Tenn. Code. Ann. § 71-6-101 et seq.; and the
Tennessee Consumer Protection Act, Tenn. Code. Ann. § 47-18-101 et seq. Consequently,
we find that the trial court erred in dismissing the complaint for failure to state with sufficient
particularity the alleged acts of negligence.
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Medical Malpractice Act
Finally, we address the Appellant’s contention that the trial court erred in dismissing
the complaint for failure to provide notice to CHHC as required by Tenn. Code Ann. §29-26-
121. In 2008 the Tennessee legislature made substantial changes to the Medical Malpractice
Act, Tenn. Code Ann. § 26-26-115 et seq. These amendments went into effect on October
1, 2008, five days before this action was filed. At the time this complaint was filed Tenn.
Code. Ann. § 26-26-121 (2008) provided in pertinent part:
(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 against
whom the potential claim is being made at least sixty (60) days
before the filing of a complaint based upon medical malpractice
in any court of this state. Attached to the written notice shall be
a list of all health care providers to whom notice is being given
pursuant to this section.
According to 29-26-121(b)(2008) when a complaint was filed alleging medical malpractice,
“the pleadings shall state whether each party had complied with subsection (a) and shall
provide such evidence of compliance as the court may require to determine if the provisions
of this section have been met.” Pursuant to the statute, the trial court has discretion to excuse
compliance for “extraordinary cause shown.” Tenn. Code Ann. § 29-26-121(2008).
Moreover, according to the statute in effect in 2008, if notice was given as provided by the
statute, the applicable statute of limitations would be extended by up to ninety days. Tenn.
Code Ann. § 29-26-121(2008).6 The purpose of this notice requirement and 60 day period
has been described by one commentator as follows:
to give the defendant the opportunity to investigate and perhaps
even settle the case before it is actually filed. At a minimum, it
will give the defendant the opportunity to gather information
before suit is filed and should eliminate the need for extensions
6
Tenn. Code Ann. § 29-26-121 was amended effective July 1, 2009. The 2009 amendment clarified
who had to receive notice and explicitly stated what information must be contained in the notice. The
amendments also clarified when and how notice was effective and increased the statute of limitations
extension to 120 days. Tenn. Code. Ann. § 29-26-121(2009); see also Day, John A., Med Mal Makeover
2009 Act Improves on ‘08, 45-JUL Tenn. B.J. 14 (July 2009).
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of time to answer the complaint or slow-walk discovery.
Day, John A., Med Mal Makeover 2009 Act Improves on ‘08, 45-JUL Tenn. B.J. 14 (July
2009).
Appellant concedes that notice was not provided to CHHC prior to filing the
complaint as required by Tenn. Code. Ann. § 29-26-121. On appeal, however, the Appellant
contends that the notice requirement does not apply to its claim. Alternatively, in the event
that the requirement does apply, the Appellant contends that it substantially complied with
the notice requirement. In support of the argument that the notice requirement is not
applicable to its claim, Appellant argues that (1) the original action, which was voluntarily
non-suited, was filed prior to the enactment of the notice requirement, and (2) the second
action was filed a mere five days after the requirement went into effect and compliance was
impossible because while the statute extended the statute of limitations period, it did not
extend the savings statute period.
Because the notice requirement is such a recent enactment, there is a dearth of cases
interpreting and construing the requirement and the “extraordinary cause exception.” One
of only several cases which have even considered the requirements of Tenn. Code Ann. §29-
26-121 is Jenkins v. Marvel, 683 F. Supp. 2d 626 (E.D. Tenn. Jan. 14. 2010). In Jenkins,
the plaintiff originally filed a medical malpractice claim prior to the amendments to
Tennessee’s Medical Malpractice Act. Id. at 629. However, the plaintiff chose to take a
voluntary non-suit and dismissed the original action on October 18, 2007. Id. The Jenkins
plaintiff chose to re-file the medical malpractice claim on October 17, 2008, seventeen days
after the amendments went into effect. Id. The defendants in Jenkins filed a motion to
dismiss, arguing that the plaintiff had failed to comply with the notice requirement in the
Medical Malpractice Act which became effective on October 1, 2008. Id. at 637. As in the
case before us, the Jenkins plaintiff argued that the amendments should not apply to their
case. Id. at 638. The plaintiff contended that the underlying purpose of the statute had been
met. Id.
In considering the motion to dismiss, the Jenkins court first compared Tennessee’s
statute to a similar statute in Texas, Texas Civil Practice and Remedies Code § 74.051 and
the intent behind the Texas statute as found by Texas courts. Id. The Jenkins court found
the Texas statute helpful as the Tennessee statute and the Texas statute were very similar.7
7
As stated by the Jenkins court, Texas Civil Practice and Remedies Code § 74.051(a) provides:
(continued...)
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Id. As stated by the Jenkins court, the purpose behind the Texas statute was to “‘facilitate
discussion of the merits of a potential health care claim and thereby initiate amicable
settlement negotiations,’” (quoting Phillips v. Sharpstown General Hosp., 664 S.W.2d 162,
168 (Tex. App. 1983), and to “‘facilitate the early identification of unmeritorious claims.’”
Id. (quoting Schepps v. Presbyterian Hosp. Of Dallas, 652 S.W.2d 934, 937 (Texas. 1983)).
The Jenkins court then reviewed the legislative history behind the Tennessee statute,
noting that there was no Tennessee case law discussing the purpose behind the statute. Id.
at 639. The Jenkins court found that the State of Tennessee Senate Republican Caucus
newsletter for the week of April 2, 2007 discussed the purpose behind the new requirements.
Id. The newsletter stated “‘[t]he legislation is designed to reduce the number of frivolous
lawsuits filed in Tennessee each year...by requiring early evaluation and streamlined
disclosure of medical records.’” Id. (quoting TN Senate Republican Caucus Weekly Wrap,
April 6, 2007). The Jenkins court also considered an April 24, 2008 news release from the
Senate Republican caucus which provided:
The State Senate has approved and sent to the governor major
tort reform legislation aimed at weeding out meritless medical
malpractice lawsuits.
* * *
Key provisions in this bill include:
C Notice would be provided at least two months
before a lawsuit is filed to help resolve the case
before it goes to court.
Id. (citing TN News Rel., S. Rep. 4/24/2008). Based on this history, the Jenkins court found
that the purpose behind the Tennessee statute was similar to the purpose behind the Texas
7
(...continued)
Any person or his authorized agent asserting a health care liability claim
shall give written notice of such claim by certified mail, return receipt
requested, to each physician, or health care provider against whom such
claim is being made at least 60 days before the filing of a suit in any court
of this state based upon a health care liability claim.
Jenkins, 683 F. Supp. 2d at 638. The court also noted that § 74.051(b) required plaintiffs to include a
statement of compliance in their complaint and provided that plaintiffs may have to provide additional
evidence of compliance.
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statute - “to provide notice to potential parties and to facilitate early resolution of cases
through settlement.” Id.
Utilizing this intent, the Jenkins court held that the plaintiff’s second action should
not be dismissed as the defendants had actual notice of the claim and there was no need for
the plaintiff to provide the statutory notice. Id. The court found that the defendants “clearly”
had more than sixty days notice of the plaintiff’s claims, that in fact the defendants had a
year’s notice, and had the opportunity to enter into any attempts at resolution. Id. The court
also found that the plaintiff’s failure to state compliance with the statute in the complaint was
unnecessary under the circumstances. Id. Further, the court noted that the plaintiff had
complied with another requirement of the Medical Malpractice Act, the filing of a Certificate
of Good Faith as provided by Tenn. Code Ann. § 29-26-122, and therefore the legislature’s
goal of ensuring that claims filed had merit was met. Id. Because the defendants had notice
of the claim through the filing of the first lawsuit, before the notice requirements were in
effect, and because the plaintiff had demonstrated the claim had some merit, the Jenkins
court found that the purpose of the statute had been met. Id. Therefore, the court found that
under the unique circumstances of the case, the plaintiff’s noncompliance with the notice
requirements did not warrant a dismissal. Id.
We find that the case before us is virtually identical to Jenkins. As in Jenkins, the
Appellant filed a complaint which included allegations of medical malpractice before the
notice requirement was in effect and subsequently non-suited the first action. Then, as in
Jenkins, mere days after the amendments went into effect, the Appellant re-filed the
complaint which again included allegations of medical malpractice. As in Jenkins, the
defendants had actual notice of the claim at least one year before the Appellant filed the
current action by virtue of the previously filed claim. Finally, as in Jenkins, the Appellant
filed a Certificate of Good Faith wherein the Appellant’s attorney certified that he had
consulted with an expert, competent to testify under Tenn. Code. Ann. §29-26-115, and that
there was a good faith basis to maintain the action. 8
8
We recognize that the Appellant’s Certificate of Good Faith was not filed with the original
complaint in this action. However, at that time the statute provided that a plaintiff must only file the
Certificate of Good Faith within ninety days of filing the complaint. Tenn. Cod. Ann. § 29-26-122 (2008).
This statute was subsequently amended, effective July 1, 2009, to provide that the Certificate of Good Faith
must be filed with the complaint. Tenn. Code. Ann. 29-26-122 (2009). Further, by order entered May 22,
2009, the trial court granted Appellant an extension until June 22, 2009 to provide a Certificate of Good
Faith. Appellant then filed a Certificate of Good Faith with the second amended complaint on June 22, 2009.
Accordingly, the timeliness of the Appellant’s filing of the Certificate of Good Faith does not affect this
decision.
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We recognize that Jenkins is not binding upon this Court. However, we too are faced
with deciding this case with no Tennessee case law discussing the purposes behind the notice
requirement and the “extraordinary cause exception” found in Tenn. Code. Ann. § 29-26-121
(2008). After reviewing the requirements as they existed in 2008, the subsequent
amendments to Tenn. Code Ann. § 29-26-121 which went into effect on July 1, 2009, the
reasoning in Jenkins, and commentary from others discussing the reform to Tennessee’s
Medical Malpractice Act in 2008 and 2009, this Court finds the reasoning in Jenkins sound
and will apply the same analysis to this case.9 The purpose behind Tenn. Code. Ann. § 29-
26-121 and other recent amendments to the Medical Malpractice Act was to provide notice
to health care providers of potential claims against them so that they might investigate the
matter and perhaps settle the claim, and also to reduce the number of meritless claims which
were filed. See Jenkins, 683 F. Supp. 2d 626 (E.D. Tenn. 2010); and Day, John A., Med Mal
Makeover 2009 Act Improves on ‘08, 45-JUL Tenn. B.J. 14 (July 2009). However, the
Tennessee legislature recognized the need to create an exception to the notice requirement
so that it would not be an absolute bar to all claims whatsoever for failure to comply with the
notice requirements. The legislature created such an exception by providing that “[t]he court
has discretion to excuse compliance with the section only for extraordinary cause shown.”
Tenn. Code Ann. § 29-26-121(b). Accordingly, we review the trial court’s decision not to
allow an exception under an abuse of discretion standard. A trial court abuses its discretion
when it has applied an incorrect legal standard or has reached a decision which is against
logic or reasoning that caused an injustice to the party complaining. Eldridge v. Eldridge, 42
S.W.3d 82, 85 (Tenn. 2001).
We find that the trial court erred in not excusing compliance with the notice
requirements. It is well settled that Tennessee law favors the resolution of all disputes on the
merits. Henley v. Cobb, 916 S.W.2d 915, 916 (Tenn. 1996)(citations omitted). CHHC had
actual notice of the claim more than one year prior to the filing of the present action.
Accordingly, CHHC had ample time to investigate and possibly settle the claim. Moreover,
the Appellant filed a Certificate of Good Faith demonstrating that the claim had merit.
Consequently, all purposes behind the 2008 amendments to the Medical Malpractice act were
met. Under the unique circumstances of this case, the trial court should have exercised its
discretion and excused compliance with the deadlines imposed by Tenn. Code Ann. §29-26-
121. Therefore, we reverse the trial court’s dismissal of the Appellant’s medical malpractice
claims on the basis that the Appellant failed to comply with Tenn. Code Ann. §29-26-121.
9
This Court recognizes that the trial court entered its order on August 3, 2009, and therefore the trial
court did not have the benefit of the Jenkins opinion which was filed on January 14, 2010.
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Conclusion
For the foregoing reasons we reverse the decision of the trial court dismissing
Appellant’s complaint and remand this case to the trial court for further proceedings. Costs
of this appeal are taxed to the Appellee Claiborne and Hughes Health Center for which
execution may issue if necessary.
_________________________________
J. STEVEN STAFFORD, JUDGE
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