The opinion
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
August 8, 2013 Session
MELISSA BROOKE HALEY, ET AL. v. STATE OF TENNESSEE
Appeal from the Claims Commission for Davidson County
No. T20120071 William O. Shults, Commissioner
_________________________________
No. E2012-02484-COA-R3-CV-FILED-SEPTEMBER 25, 2013
This is a medical malpractice case.1 The plaintiff filed a claim with the Division of Claims
Administration, as the resident physician alleged to have engaged in negligence was
purportedly connected to a University of Tennessee training program at Erlanger Hospital
in Chattanooga, Tennessee. The State moved the Commissioner to dismiss the plaintiff’s
action for failure to comply with the requirements set out in Tennessee Code Annotated
section 29-26-121(a). The Commissioner reluctantly agreed with the State’s position. We
hold that the plaintiff complied with section 121(a)’s notice requirement by complying with
the claim notice requirements of Tennessee Code Annotated section 9-8-402. We further
hold that section 121 does not mandate dismissal with prejudice for noncompliance with its
terms, and that the plaintiff’s failure to provide all the items denoted in section 121(a) does
not warrant dismissal with prejudice under the facts of this case. We vacate the dismissal
order and remand for further proceedings.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Claims Commission
Vacated; Case Remanded
J OHN W. M CC LARTY, J., delivered the opinion of the Court, in which C HARLES D. S USANO,
J R., P.J., and D. M ICHAEL S WINEY, J., joined.
1
Tennessee Code Annotated section 29-26-101 now defines most all cases occurring in a medical
context as “health care liability actions.” The statute specifies that such an action “means any civil action,
including claims against the state or a political subdivision thereof, alleging that a health care provider or
providers have caused an injury related to the provision of, or failure to provide, health care services to a
person, regardless of the theory of liability, on which the action is based . . . .” See Acts 2011, ch. 510, §
8. Effective April 23, 2012, the term “health care liability” replaced “medical malpractice” in the Code. See
Acts 2012, ch. 798. The provisions of the revised statute do not apply to this action, as the injuries at issue
here accrued before October 1, 2011.
Olen G. Haynes, Sr., Johnson City, Tennessee, for the appellants, Melissa Brooke Haley,
personally and for the use and benefit of her daughter, Starla Brooke Joanne Haley.
Joshua R. Walker, Associate General Counsel, The University of Tennessee, Knoxville,
Tennessee, for the appellee, State of Tennessee.
OPINION
I. BACKGROUND
Counsel for plaintiff, Melissa Brooke Haley, filed a “notice of claim,” dated July 15,
2011, with the Division of Claims Administration (“DCA”) on July 18, 2011, pursuant to
Tennessee Code Annotated section 9-8-402(a), which requires:
(a)(1) The claimant must give written notice of the claimant’s claim to the
division of claims administration as a condition precedent to recovery . . . .
(2) The notice shall state the circumstances upon which the claim is based,
including, but not limited to: the state department, board, institution, agency,
commission or other state entity that allegedly caused the injury; the time and
place of the incident from which the claim arises; and the nature of the
claimant’s injury.
The record reveals that the alleged negligent treatment by a resident physician purportedly
connected to a State entity occurred on July 17, 2010. At that time, the relevant statute
regarding medical malpractice, Tennessee Code Annotated section 29-26-121(a), provided
as follows regarding notice:
(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 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.
The notice of claim sent to the DCA by counsel for Ms. Haley was printed on the
firm’s letterhead and specifically reads as follows:
RE: Melissa Brooke Haley, personally and for use and benefit of her daughter,
Starla Brooke Joanne Haley
Dear Sir or Madam:
Please allow this letter to serve as notice of claim against the State of
Tennessee in accordance with T.C.A. § 9-8-402. Plaintiff, Melissa Brooke
Haley, is the mother of Starla Brooke Joanne Haley who was born in
Chattanooga, Tennessee, on July 17, 2010. Plaintiff and her daughter are
residents of Georgia residing at 1619 Burnt Oak Drive, Dalton, Georgia 30721.
Plaintiff, Melissa Brooke Haley, became an obstetrical patient of the Regional
Obstetrical Consultants in Chattanooga, Tennessee, because of concerns that
her primary care OB/GYN in Dalton, Georgia, had related to a 2-vessel cord
and polyhydramnios. At approximately 32 weeks, a routine office ultrasound
revealed a change in the fetal bowel suggestive of an obstructive process
“likely a meconium ileus.” At 36 weeks, it was noted by the OB that the fetal
bowel loops had continued to enlarge resulting in increased abdominal
circumference. An office note revealed that “[t]he AC today measures 40 cm
which is well out of the normal range. This is approximately 8 cm (or 25%)
bigger than the head circumference. We had originally discussed labor
induction for [Ms. Haley] around 38 weeks. I am concerned that this
abdominal circumference will not pass through the maternal pelvis.”
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Plaintiff was then informed and assured that delivery would be accomplished
by cesarean section. Plaintiff was further advised that, as a precaution,
delivery should take place at the Erlanger Hospital in Chattanooga, Tennessee,
where the staff would be appropriately informed and prepared to deliver by c-
section.2
Plaintiff, however, went into labor at 38 weeks and was brought to Erlanger
Hospital for delivery. A resident physician, Dr. Valerie Parker, performed
delivery of Starla Brooke Joanne Haley vaginally rather than by c-section as
had previously been ordered by Plaintiff’s attending OB/GYN. The increased
stresses of the vaginal delivery likely resulted in a mid-gut volvulus
necessitating immediate surgical intervention to repair. Inexplicably, the
surgery was delayed until the following day on July 18, 2010, by which time
the mid-gut volvulus had created a loss of blood supply to the bowel with
resultant necrosis. The necrotic bowel was described by the surgeon after the
exploratory laparotomy as an “intra-abdominal catastrophe.”
Plaintiff, Melissa Brooke Haley, personally and for the use and benefit of her
daughter, Starla Brooke Joanne Haley, would show that the resident, Dr.
Valerie Parker, deviated from the acceptable standard of medical care owed
the Plaintiff in Chattanooga, Tennessee, as follows:
1. By failing to obtain Ms. Haley’s medical history before
performing the vaginal delivery; and
2. Failure to perform a cesarean section.
Plaintiff would show that, as a result of the negligence of the resident, Starla
Brooke Joanne Haley has experienced, and is expected to continue to
experience, bowel complications. Plaintiff would also show that Starla Brooke
Joanne Haley has a permanent medical complication that was proximately and
directly caused by the negligence of the resident in performing a vaginal
delivery.
Wherefore, Plaintiff, Melissa Brooke Haley, demands judgment against the
State of Tennessee in the amount of $300,000.00.
Wherefore, Plaintiff, for the use and benefit of her minor daughter, Starla
2
The University of Tennessee operates a training program at the hospital.
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Brooke Joanne Haley, demands judgment against the State of Tennessee in the
amount of $300,000.00.
Please advise if you believe if this notice fails in any way to meet the
conditions of T.C.A. § 9-8-402, or if you believe that another entity other than
the State of Tennessee is responsible for the injuries complained of herein. .
..
This notice to the State complies with Tennessee Code Annotated section 9-8-402.
Reviewing the notice through the filter of Tennessee Code Annotated section 29-26-
121(a)(2) requirements, it contains the full name of the child and her birth date, the full name
of Ms. Haley, the address of Ms. Haley and her daughter, the names of certain providers,
and the name and address of the attorney sending the notice. The notice did not include Ms.
Haley’s birth date, a list of the name and address of all providers being sent a notice, or
HIPAA compliant medical authorizations.
On October 17, 2011, counsel for Ms. Haley received a notice from the DCA that it
“has been unable to act on your claim within ninety (90) days and is transferring your claim
to the Claims Commission pursuant to Tennessee Code Annotated, Section 9-8-402(c),”
which provides as follows:
The division of claims administration shall investigate every claim and shall
make every effort to honor or deny each claim within ninety (90) days of
receipt of the notice. If the claim is denied, the division shall so notify the
claimant and inform the claimant of the reasons therefor and of the claimant's
right to file a claim with the claims commission within ninety (90) days of the
date of the denial notice. If the claim is honored and the damages may be
ascertained within the ninety-day settlement period, the division shall so notify
the claimant, and inform the claimant of the conditions of the settlement offer,
and of the claimant’s right to file such claimant’s claim with the claims
commission within ninety (90) days of the date of the settlement notice if the
conditions of the settlement offer are unacceptable. If the claim is honored and
the amount of damages may not be ascertained within the ninety-day
settlement period because evidence of loss will be obtained after the ninetieth
day of the settlement period, the division shall so notify the claimant and
inform the claimant of the claimant’s right to file a claim with the claims
commission within ninety (90) days of the date the division forwards final
compensation to the claimant or upon written request for transfer to the
commission by the claimant; provided, that final compensation shall be
forwarded to the claimant within one (1) year of the date of the settlement
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notice. If the division fails to honor or deny the claim within the ninety-day
settlement period, the division shall automatically transfer the claim to the
administrative clerk of the claims commission.
Ms. Haley thereafter filed a “complaint” with the Claims Commission on November 9, 2011,
as required by Rule 0310-1-.01(2)(d)3 of the Rules of the Tennessee Claims Commission:
When DCA has transferred a claim to the Claims Commission . . . [w]ithin
thirty (30) days of the receipt of the notification of assignment of a
Commissioner, the claimant shall file a complaint (which complies with TRCP
8 and 10). If such a complaint has already been filed with the Division of
Claims Administration, then this requirement is satisfied.
In regard to the complaint, the applicable version of Tennessee Code Annotated
section 29-26-121(b) provided that
[i]f 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.
In the “complaint” filed with the Claims Commission, counsel for Ms. Haley indicated that
“Claimant has complied with the provision of T.C.A. § 29-26-121(a) by attaching hereto a
Certificate of Good Faith as Exhibit A.” Counsel indeed attached a Certificate of Good Faith
in compliance with section 29-26-1223 – not section 121(a). According to the record, counsel
did not attach the notice sent to the DCA or otherwise address the items required in section
3
The applicable version of section 29-26-122 denoted:
(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. . . .
***
(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. . . .
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121(a)(2).
The State thereafter moved to dismiss the action with prejudice for the following
reasons:
1. Claimant failed to provide pre-suit notice as required by Tennessee Code
Annotated section 29-26-121 before filing her written notice of claim with the
Division of Claims Administration;
2. Claimant failed to attach a certificate of good faith to her written notice of
claim filed with the Division of Claims Administration as required by
Tennessee Code Annotated section 29-26-122; and
3. At this time, Defendant has not been able to determine whether Valerie
Parker, M.D., against whom Claimant alleges fault on behalf of the State, was
acting as a State agent and/or employee or acting in some other capacity or for
personal gain regarding the events complained of. In the event Dr. Parker was
not acting as a State agent and/or employee or was acting for personal gain,
this claim is not properly before the Commission, and a motion to dismiss for
lack of subject matter jurisdiction will be made. . . .
Eight months later, on September 17, 2012, the Commissioner granted the State’s
motion to dismiss. In pertinent part, the order holds as follows:
This is a medical malpractice action which raises interesting questions as the
parties attempt to navigate their way between the requirements of the Claims
Commission Act, Tenn. Code Ann. § 9-8-301, et. seq. and those of the Medical
Malpractice Act, Tenn. Code Ann. § 29-26-101, et. seq. In particular, at issue
here is the interplay between the requirements for initiating a case under Tenn.
Code Ann. §§ 9-8-402 and 403 and Claims Commission Rule 0310-01-01-
.01(2) as well as Tenn. Code Ann. §§ 29-26-121 and 122.
***
The State in its Motion argues that the pre-suit notice and certificate of good
faith requirements found in the Medical Malpractice Act are applicable to
claims filed against the State in this Commission. The State contends that the
. . . Court of Appeals made this clear in Cunningham v. Williamson County
Hosp. District, No. M2011-00554-COA-R9-CV, 2011 WL 6000379 (Tenn. Ct.
App.) (perm. app. granted April 11, 2012) which held . . . that the Tennessee
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Civil Justice Act of 2011 made it clear that the Medical Malpractice Act
applies to both the State and its political subdivisions. The 2011 legislation
had an effective date of October 1, 2011.
However, the Tennessee Supreme Court granted an application for permission
to appeal on April 11, 2012, in Cunningham and resolution of the issues raised
in that appeal awaits the conclusion of the briefing process, oral argument, and
the High Court’s opinion.
The State argues that in the Claims Commission, the initiating document is the
Notice of Claim provided for in Tenn. Code Ann. § 9-8-402 and that,
consequently Ms. Haley should have served a Written Notice of Claim on the
State pursuant to Tenn. Code Ann. § 29-20-121 at least 60 days before filing
the Notice she sent to the DCA on July 15, 2011. The State also argues that
according to Claims Commission Rule 0310-01-01-.01(2), Rule 3 of the
Tennessee Rules of Civil Procedure does not apply in the Commission and
therefore, any purported pre-suit notice given 60 days or more before Ms.
Haley actually filed her Complaint following the transfer of the claim from the
DCA to the Commission came too late. Further, the State argues that the
Certificate of Good Faith required by Tenn. Code Ann. § 29-26-122 likewise
should have been filed with the original Notice of Claim since that Notice was
the initiating document in this case.
The State also argues that the informational requirements mandated by the
2009 amendments to the Medical Malpractice Act, in Tenn. Code Ann. § 29-
26-121, were incomplete here and, in particular, the requirements that plaintiff
list the names and addresses of all medical providers to which she sent notice
and that she provide a HIP[A]A compliant medical authorization form
permitting persons or entities receiving notice to obtain copies of the plaintiffs’
medical records.
***
The claimant, in her Response, argues that the Claims Commission Act
contains its own notice requirement in Tenn. Code Ann. § 9-8-402 with which
she has complied. Consequently, Ms. Haley argues that any conflict between
the Claims Commission Act and the Medical Malpractice Act must be resolved
in her favor since actions before the Claims Commission are sui generis and
she has proceeded accordingly. Ms. Haley contends that the State’s position
that the initiating document is the written Notice of Claim triggering a
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requirement for a Tenn. Code Ann. § 29-26-121 notice is actually contrary to
the requirements of Tenn. Code Ann. § 9-8-402. However, claimant goes on
to argue that if the Commission were to find in fact that the original Notice of
Claim filed with DCA was the initiating filing there then compliance with the
pre-suit notice requirement found in Tenn. Code Ann. § 29-26-121(a)(1) and
(2) should be excused for “extraordinary cause” as provided for in Tenn. Code
Ann. § 29-26-121(c). . . .
****
Since the alleged malpractice here occurred on July[]17, 2010, the versions of
Tenn. Code Ann. §§ 29-26-121 and 122 in effect after the 2008 and 2009
amendments must be applied . . . .
***
The Commission finds that the General Assembly’s intent, beginning with the
amendments to the Medical Malpractice Act in 2008, appears to have been to
implement a system whereby potential claimants would give advance notice
to potential defendants . . . of a possible medical malpractice claim and then
afford those parties at least 60 days within which to analyze and perhaps
resolve the allegations before the laborious, expensive, and emotionally
draining task of litigating a complex medical malpractice action commences.
...
***
A logical argument can be made that the approach behind the 2008, 2009,
2011, and the 2012 amendments to the Tennessee Medical Malpractice [Act]
were presaged by what the General Assembly did in 1984 with the enactment
of the Tennessee Claims Commission Act. . . .
Indeed, the Claims Commission Act goes on to provide, in Tenn. Code Ann.
§ 9-8-402(c), that the State through the Division of Claims Administration has
a 90 day opportunity, following that notice, to “. . . investigate every claim and
. . . make every effort [to honor] or deny each claim . . .” before the claim is
automatically transferred to the Clerk of this Commission. . . .
Thus, both the Tennessee Claims Commission Act and the Medical
Malpractice Act contain provisions evidencing a clear intention that parties to
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medical malpractice cases should be afforded a reasonable and fair opportunity
to investigate and perhaps resolve the matter, one way or the other, before
litigation is instituted.
The State makes much of the following language from Commission Rule 0310-
01-01-.01(2): “TRCP Rule 3 is not followed.” The State appears to argue
that a “complaint” is not the starting point in a claim filed with the
Commission. That is clearly not the case. Later language found in the Rule
makes it clear that in a situation such as found in this case, a Complaint
compliant with Tenn. R. Civ. P. Rules 8 and 10, must be filed after a claim is
transferred to the Commission from the DCA where it was unable to be
resolved. Prior to that there is no claim before the Commission.
In this case, what happened with Ms. Haley’s filing of her notice letter with
DCA on July 15, 2011 is perfectly consistent with the requirements of Tenn.
Code Ann. § 29-26-121. In fact, Ms. Haley gave notice some 117 days before
her lawsuit was filed on November 9, 2011.
We are required to construe the Act which governs this Commission in pari
materia with the Medical Malpractice Act. Viewing those two acts together
. . . leads us to conclude that the timeliness of Ms. Haley’s initial notice here
is unquestionable and reflects the legislature’s intent to be fair with
legitimately damaged claimants as well as providers faced with allegations that
they acted incompetently in treating a patient.
There was clearly confusion prior to June 16, 2011, as to whether the 2008 and
2009 amendments to the Medical Malpractice Act (including Tenn. Code Ann.
§§ 29-26-121 and 122) applied to allegations of medical malpractice involving
the State or its political subdivisions. However, the Tennessee Civil Justice
Act of 2011, in Public Chapter 510, effective for actions accruing on or after
October 1, 2011, now makes it clear that in fact those amendments do apply
to cases involving the State with the exception of any conflict with “the
provisions of Tennessee Claims Commission Act compiled in title 9, chapter
8, part 3.” See Cunningham v. Williamson County Hospital Dist., et al,
M2011-00554-COA-R9-CV, 2011 WL 6000379, at *6, fn 12 (Tenn. Ct.
App.). The Complaint here was filed after the effective date November 9,
2011.
Clearly, therefore we have two statutes governing how medical malpractice
actions against the State must be handled. However, there are slight variations
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in the timing requirements under each act. This Commission takes very
seriously the well-established rule of statutory construction directing that we
avoid “[a] construction which places one statute in conflict with another . . .
[and that we] resolve any possible conflict in favor of each other so as to
provide a harmonious operation of the laws.” Graham v. Caples, 325 S.W.3d
578, 582 (Tenn. 2010) (quoting Cronin v. Howe, 906 S.W.2d 910, 912 (Tenn.
1995)). In analyzing the case before us, we are attempting to do exactly that.
The State argues quite ably as well as forcefully that Ms. Haley should have
sent her pre-suit notice at least 60 days before July 15, 2011, when she
submitted her notice letter to the Division of Claims Administration as
required by Tenn. Code Ann. § 9-8-402(a). This notice was timely under the
provisions of Tenn. Code Ann. § 9-8-402(b) and met the informational
requirements set out in that section and in fact, contained almost all of the
information required by Tenn. Code Ann. §§ 29-26-121(a)(2)(A), (B), (C).
Under the State’s theory the notice required by Tenn. Code Ann. § 29-26-121
should have been sent to it no sooner than 60 days prior to July 15, 2011, the
date Ms. Haley mailed her notice letter to the DCA. What the State is arguing
for here, and in several other pending cases, is that in medical malpractice
cases filed in the Claims Commission claimants are required to send the State
what amounts to a sort of “pre-notice notice” when the provisions of Tenn.
Code Ann. §§ 9-8-402 and 29-26-121 are construed together. Under the
State’s theory the Tenn. Code Ann. § 29-26-121 notice must be served at least
60 days before suit is filed in a trial court but in the Commission, that same
notice must be sent 60 days before the notice required by Tenn. Code Ann. §
9-8-402 is delivered to the DCA even though Commission Rule 0310-01-01-
.01(3) explicitly states that the commencement of an action in this Commission
is begun with the filing of a Complaint within 30 days after it leaves the
jurisdiction of the DCA and the claimant is advised by the Clerk that it has
been transferred and a Commissioner assigned. It is only with the filing of that
Complaint that a claim first comes within the jurisdiction of this Commission.
We do not find that such a strained interpretation of these governing statutes
is called for in this case. As discussed above, the clear philosophy behind both
the Tennessee Claims Commission and the Medical Malpractice Acts is to give
the parties at least 60 days, and in the case of this Commission at least 90 days
....
In this case, the claimant timely delivered her pre-suit notice to the State as
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required by Tenn. Code Ann. § 9-8-402 on July 15, 2011, and then some 94
days later, on October 17, 2011, pursuant to Tenn. Code Ann. § 9-8-402(c) the
matter was transferred from the Division to the Clerk of the Commission and
the parties so advised.
(Emphasis in italics added.). Despite finding Ms. Haley’s notice to be timely, however, the
Commissioner concluded that the claim must be dismissed because Ms. Haley had not
provided a list of the names and addresses of all providers who were sent pre-suit notice and
a HIPAA-compliant medical authorization as required by Tennessee Code Annotated
sections 29-26-121(a)(2)(D) and (E). After the Commissioner denied motions to alter or
amend submitted by both parties, Ms. Haley filed this appeal.
II. ISSUE
The question presented by this appeal is whether Ms. Haley’s filing in the Claims
Commission pursuant to Tennessee Code Annotated section 9-8-402 was effective
compliance with Tennessee Code Annotated section 29-26-121.
III. STANDARD OF REVIEW
The Commissioner’s grant of the State’s motion to dismiss involves a question of law.
Our review, therefore, is de novo with no presumption of correctness as to the trial court’s
legal conclusions. Myers v. Amisub (SFH), Inc., 382 S.W.3d 300, 307 (Tenn. 2012).
This action presents a matter of statutory interpretation, which is reviewable as a
matter of law pursuant to the de novo standard without any presumption of correctness. In
re Estate of Tanner, 295 S.W.3d 610, 613 (Tenn. 2009) (citing Gleaves v. Checker Cab
Transit Corp., 15 S.W.3d 799, 802 (Tenn. 2000); Myint v. Allstate Ins. Co., 970 S.W.2d 920,
924 (Tenn. 1998)). The primary objective of statutory interpretation is to carry out the
legislative intent without broadening or restricting a statute beyond its intended scope.
Houghton v. Aramark Educ. Res., Inc., 90 S.W.3d 676, 678 (Tenn. 2002). In construing
legislative enactments, we presume that every word in a statute has meaning and purpose and
should be given full effect if the obvious intention of the General Assembly is not violated
by so doing. In re C.K.G., 173 S.W.3d 714, 722 (Tenn. 2005). When a statute is clear, we
apply the plain meaning without complicating the task. Eastman Chem. Co. v. Johnson, 151
S.W.3d 503, 507 (Tenn. 2004)). We also presume that the General Assembly was aware of
the state of the law when the statutes were enacted and that it did not intend to enact a useless
statute. Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 527 (Tenn. 2010).
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IV. DISCUSSION
We have previously applied medical malpractice statutes to a claim in the
Commission. See McConkey v. State, 128 S.W.3d 656, 659 (Tenn. Ct. App. 2003). In
Cunningham v. Williamson County Hospital District, No. M2011-00554-COA-R9-CV, 2011
WL 6000379 (Tenn. Ct. App. Nov. 30, 2011) rev’d in part by Cunningham v. Williamson
County Hospital District, ___ S.W.3d ___, No. M2011-00554-SC-S09-CV, 2013 WL
1912611 (Tenn. May 9, 2013),4 we addressed the question of the medical malpractice
amendments to a claim against a county under the Governmental Tort Liability Act
(“GTLA”). We held that “it was the express intent of the General Assembly that the 2008
and 2009 amendments shall apply to all medical malpractice actions including claims filed
under the Governmental Tort Liability Act.” Cunningham, 2011 WL 6000379 at *4. This
is evident from the stated purpose in both the 2008 Public Act, which stated that the
amendments “shall apply to all actions filed on or after [July 1, 2008], the public welfare
requiring it,” and the 2009 Public Act, which stated that Tennessee Code Annotated 29-26-
121 “shall take effect and apply to notice given on or after July 1, 2009, in all medical
malpractice actions. . . .” See 2008 Pub. Acts 919, § 3; 2009 Pub. Acts 474, § 4. In our
view, logic dictates that if these amendments apply to claims against political subdivisions
of the State under the GTLA, then the amendments apply to claims against the State itself.
The Supreme Court, in its review of our Cunningham decision, observed that
application of other statutes in GTLA cases must “not conflict with specific provisions of the
GTLA, its structure, purpose, or intent.” Cunningham, 2013 WL 1912611, at *3 (citing
Lucius v. City of Memphis, 925 S.W.2d 522, 526 (Tenn. 1996)). We find this language
instructive. In that the amendment provisions before us do not conflict with the statutes and
rules of the Claims Commission, we find that sections 29-26-121 and 122 of the Code apply
to claims against the State. Accordingly, Ms. Haley was required to comply with the 2008
and 2009 amendments to the medical malpractice statutes demanding pre-suit notice at least
60 days before the claim is commenced and a certificate of good faith filed with the
commencement. We further find no conflict with a plaintiff providing notice in accordance
with Tennessee Code Annotated section 29-26-121 simultaneously to the notice pursuant to
4
The Supreme Court observed in Cunningham that “[n]either party has addressed the issue of the
applicability of the sixty-day notice requirement in cases governed by the GTLA,” that the plaintiffs in that
action “presume[d] that the sixty-day notice is required in GTLA cases,” but that “we have not previously
addressed whether the sixty-day pre-suit notice is required in GTLA cases.” Cunningham, 2013 WL
1912611 at *4 and n. 3. The Court reversed our decision in part by holding that Tennessee Code Annotated
section 29-26-121(c) does not apply to a health care liability case brought under the GTLA. Id. at *5.
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Tennessee Code Annotated section 9-8-402.5
In regard to the sufficiency of notice required, Ms. Haley argues in the instant case
that the only provider who is a “named defendant” in the Claims Commission is the State.
She asserts that in cases filed in the circuit courts claiming medical malpractice against only
one health care provider, sections 29-26-121(a)(2)(D) and (E) do not require either a list of
providers or HIPAA compliant authorizations. Ms. Haley claims that as to the case filed in
the Claims Commission, no list nor HIPAA authorization would be required as no other
health care provider is a “named defendant” in that action. She contends that since the
Commissioner’s decision was based upon the assumption that application of Tennessee Code
Annotated section 29-26-121 would have caused her to provide the State with a list of
providers and HIPAA authorizations, and that her failure to do so rendered her notice letter
deficient, the decision to dismiss was error.6
Ms. Haley also contends that because Cunningham was released by us after she
commenced her claim in July 2011, she had no indication that the specific notice
requirements of Tennessee Code Annotated section 29-26-121(a)(2) would apply in a case
in the Claims Commission.
The State asks us to take judicial notice of the fact that in addition to this matter in the
Claims Commission, Ms. Haley filed a circuit court action in Hamilton County against
Regional Obstetrical Consultants, P.C., University Surgical Associates, P.C., Carlos Torres,
M.D., Shawn P. Stallings, M.D., Lisa Ann Smith, M.D., and Chattanooga/Hamilton County
Hospital Authority d/b/a Erlanger Health System. The State therefore asserts that the
University of Tennessee was not the only medical provider and it was entitled to receive a
list of these providers and a HIPAA-compliant release enabling it to acquire their records
pre-suit.
The State additionally responds that this court in Cunningham relied on earlier
decisions released in November 2010 - before Ms. Haley filed her claim. In Brandon v.
Williamson Medical Center, 343 S.W.784, 786 (Tenn. Ct. App. 2010), we affirmed the
5
Ms. Haley observes a potential conflict exists if a plaintiff were to send the section 29-26-121 notice
at the same time as the 9-8-402 notice because of an approaching statute of limitations, and should the DCA
transfer the case to the Claims Commission within 10 days of receipt, for example, a plaintiff would be
forced to either (1) file the claim in violation of the Commission Rule 0310-1-1-.01(2)(3) 30-day filing
requirement or (2) file the claim in violation of the section 29-26-121 60-day waiting requirement.
6
The State acknowledges that the notice of claim with the DCA acts as service of process on the State
in the Claims Commission. Tenn. Comp. R. & Regs. 0310-01-01-.01(2) and -.01(3).
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dismissal of an action against a governmental entity for the failure of the plaintiff to provide
a certificate of good faith. In Martins v. Williamson Medical Center, No. M2010-00258-
COA-R3-CV, 2010 WL 4746238, at *1 (Tenn. Ct. App. Nov. 22, 2010), we affirmed the
dismissal of a claim against the governmental entity for failure of the plaintiff to comply with
both sections 121 and 122. Thus, we had applied the amendments to governmental entities
prior to the filing of this claim with the DCA.
We observe, however, in Lawing v. Greene County EMS, No. E2011-01201-COA-R9-
CV, 2012 WL 6562155, at *3 (Tenn. Ct. App. Dec. 17, 2012), this court held “the notice
provisions contained in Tenn. Code Ann. § 29-26-121” do not apply to an action against a
governmental entity. We therefore acknowledge that the application of the amendments to
a Commission action, a matter the legislature did not specifically address and upon which the
appellate courts have not spoken, could result in confusion.
In Myers, the Tennessee Supreme Court held that “the statutory requirements that a
plaintiff give sixty days pre-suit notice and file a certificate of good faith with the complaint
are mandatory requirements and not subject to substantial compliance.” 382 S.W.3d at 304.
In this case, Ms. Haley provided the State more than sixty days notice prior to filing the
complaint with the Claims Commission in November 2011. She attached a Certificate of
Good Faith with the complaint.
The Myers Court further related:
Regarding Tennessee Code Annotated section 29-26-121, the legislature did
not expressly provide for the consequence of dismissal with prejudice as it did
in Tennessee Code Annotated section 29-26-122.
382 S.W.3d at 311-12. In Foster v. Chiles, No. E2012-01780-COA-R3-CV, 2013 WL
3306594 (Tenn. Ct. App. June 27, 2013), we discussed the significance of the Myers Court’s
observations:
Although Myers found it unnecessary to explicitly address the consequence of
noncompliance with section 121, the import of the Supreme Court’s analysis
seems clear. If the legislature intended to require the draconian remedy of
dismissal with prejudice for noncompliance with section 121, then it would
have said so, just as it did with respect to section 122, which was enacted at the
same time and which addresses the same general subject matter. We conclude
that section 121 does not require a court to dismiss a complaint with prejudice
for noncompliance with the notice requirement of that section. This
conclusion is in keeping with the general principle that “Tennessee law
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strongly favors the resolution of all disputes on their merits.” Henley v. Cobb,
916 S.W.2d 915, 916 (Tenn. 1996); see also Hinkle v. Kindred Hosp., No.
M2010-02499-COA-R3-CV, 2012 WL 3799215 at *7, * 15 (Tenn. Ct. App.
M.S., filed Aug. 31, 2012) (declining to “conclude that any deviation from
the strict letter of Tenn. Code Ann. § 29-26-121, no matter how small,
would compel the courts to dismiss any medical malpractice claim
asserted, no matter how meritorious” and observing that “[t]he hospital
received actual notice. It seems to us that the technical requirements in
the statute are intended to provide just that: notice of the claim.”). The
language of section 121(b) providing that “[t]he court may require additional
evidence of compliance to determine if the provisions of this section have been
met” also supports the conclusion that automatic dismissal with prejudice is
not required when a plaintiff neglects to attach proof of service to his or her
complaint. In such an instance, the statute contemplates a hearing so the court
may consider “additional evidence of compliance” rather than outright
dismissal. Under the circumstances presented here, where plaintiffs provided
sufficient notice under the statute and inadvertently failed to include . . . copies
of the notice provided to the defendants, there is no reason why the court
should not allow plaintiffs to rectify their oversight by filing the required proof
late.
We are mindful of the fact that section 121(b) provides that “the pleadings . .
. shall provide the documentation specified in subdivision (a)(2).” (Emphasis
added.) We are also aware that the word “shall” in a statute often indicates a
mandatory requirement, see Bellamy v. Cracker Barrel Old Country Store,
Inc., 302 S.W.3d 278, 281 (Tenn. 2009), but this interpretation is not always
required. The Supreme Court in Myers, noted that whether the word “shall”
is interpreted to be mandatory or simply directory depends upon “whether the
prescribed mode of action is of the essence of the thing to be accomplished.”
Myers, 382 S.W.3d at 309. Here “the essence of the thing to be accomplished”
is the giving of the notice, not the attaching of evidence of same to the
complaint. Under these circumstances, we hold that the provision in section
121(b) under discussion, is directory and not mandatory. Thus, the use of the
word “shall” in section 121(b) is not inconsistent with our holding that
dismissal is not required by the statute for noncompliance.
Foster, 2013 WL 3306594, at *6-7.
We agree with the Commissioner that Ms. Haley complied with the notice
requirements of Tennessee Code Annotated section 29-26-121(a). The statute does not
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preclude proof by other means. The State had actual notice of the lawsuit months before the
complaint was filed in the Claims Commission in November 2011 (accompanied by the filing
of the Certificate of Good Faith). As noted in Hinkle,
The defendants’ argument elevates form over substance and conflates means
with ends. The aim of Tenn. Code Ann. § 29-26-121 is to make sure that
prospective defendants receive adequate and timely notice of possible claims
against them. Similarly, the certificate of good faith requirement is designed
to eliminate lawsuits where the claims have not been vetted by an expert.
If we were to accept the defendants’ argument at face value, we would be
forced to conclude that any deviation from the strict letter of Tenn. Code Ann.
§ 29-26-121, no matter how small, would compel the courts to dismiss any
medical malpractice claim asserted, no matter how meritorious. This would
negate the strong preference of our law to resolve claims on their merits
whenever possible. See Henley v. Cobb, 916 S.W.2d 915, 916 (Tenn. 1996);
Townes v. Sunbeam Oster Co., Inc., 50 S.W.3d 446, 450 (Tenn. Ct. App.
2001).
2012 WL 3799215, at *15. For the foregoing reasons we vacate the decision of the Claims
Commission dismissing Ms. Haley’s claim and remand this case for further proceedings,
consistent with this opinion.
V. CONCLUSION
The judgment of the Claims Commission is vacated and the case remanded. Costs on
appeal are taxed to the appellee, State of Tennessee.
_________________________________
JOHN W. McCLARTY, JUDGE
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