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Cartwright v. DMC-Memphis Inc.

Court of Appeals of Tennessee, Jackson

December 9, 2014

CHARLOTTE J. CARTWRIGHT ET AL.
v.
DMC-MEMPHIS INC. D/B/A DELTA MEDICAL CENTER ET AL

Session October 21, 2014

Page 518

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed. Appeal from the Circuit Court for Shelby County. No. CT00090712. John R. McCarroll, Jr., Judge.

Duncan E. Ragsdale and William R. Bruce, Memphis, Tennessee, for the appellants, Charlotte J. Cartwright, Next of Kin to Lawrence M. Cartwright, Deceased.

Jonathan T. Martin and Joshua A. Hillis, Memphis, Tennessee, for the appellees, DMC Memphis, Inc., Bernadette Leach, Evelyn Cummings, and Debra P. Malina.

Jerry E. Mitchell, Andrea N. Malkin, and Samantha E. Bennett, for the appellees, Andrew M. Krauss, M.D., Nadeem Vaidya, M.D., and VRF Eye Specialty Group, PLLC.

Katherine M. Anderson and Hugh Francis, IV, for the appellee, Salwa Moustafa, M.D.

Stephanie A. Bergmeyer and Laura Miller, for the appellee State of Tennessee.

ARNOLD B. GOLDIN, J. delivered the opinion of the Court, in which RICHARD H. DINKINS, J and J. STEVEN STAFFORD, P.J., W.S., joined.

OPINION

ARNOLD B. GOLDIN, J.

Page 519

This appeal requires consideration of the interplay between the pre-suit notice requirements of Tennessee Code Annotated § 29-26-121 and Tennessee's savings statute, Tennessee Code Annotated § 28-1-105. In the instant case, Plaintiff re-filed a medical malpractice action within one year of a previous voluntary non-suit. Defendants moved to dismiss the re-filed action on the basis that the pre-suit notice provided incident to the initial lawsuit was deficient. They argued that the failure to provide the required notice in the first lawsuit meant Plaintiff's original action was not properly commenced and therefore failed to toll the statute of limitations. The trial court agreed, determined that the second lawsuit was filed outside of the applicable limitation period, and dismissed Plaintiff's claims. We reverse.

OPINION

I. Background and Procedural History

This medical malpractice[1] and wrongful death action was brought by Plaintiff Charlotte J. Cartwright (" Plaintiff" ) as the spouse and next of kin to Lawrence M. Cartwright (" Mr. Cartwright" ). According to the allegations in Plaintiff's Complaint, Mr. Cartwright died on May 19, 2010, as a result of the medical negligence of the Defendants in connection with a May 13, 2010, elective eye surgery procedure. As is relevant to the dispute between the parties on appeal, the present lawsuit is actually the second lawsuit filed by Plaintiff concerning the Defendants' alleged negligence against Mr. Cartwright.

Plaintiff filed the initial suit against Defendants on May 6, 2011. The complaint stated that pre-suit notice had been given to Defendants pursuant to Tennessee Code Annotated § 29-26-121, and proof of the notices sent to Defendants was attached as an exhibit.[2] The record indicates that

Page 520

these pre-suit notices were received by the Defendants in early June 2010.

On June 14, 2011, after the initial complaint had been filed, Defendants Salwa Moustafa, M.D. (" Dr. Moustafa" ), DMC-Memphis, Inc., Bernadette Leach, Evelyn V. Cummings, and Debra P. Malina filed motions to dismiss Plaintiff's claims. These Defendants asserted that because the pre-suit notices sent to them by Plaintiff pursuant to Tennessee Code Annotated § 29-26-121 were not compliant with the statute, Plaintiff's action should be dismissed. The notices, they indicated, failed to include either Mr. Cartwright's date of birth or the name and address of the claimant authorizing the notices. In addition, these Defendants asserted that the medical authorization provided was insufficient and did not comply with HIPAA. On June 20, 2011, a voluntary non-suit was entered without prejudice as to Dr. Moustafa, and on September 6, 2011, Defendants Eye Specialty Group, PLLC, Andrew M. Krauss, M.D., and Nadeem Vaidya, M.D., joined in the motion to dismiss previously filed by DMC-Memphis, Inc., Bernadette Leach, Evelyn V. Cummings, and Debra P. Malina. A hearing on the pending motions to dismiss occurred on September 7, 2011, but the trial court did not make any ruling on the motions, as it instead allowed additional time for briefing. On the same date, Plaintiff filed a notice of voluntary non-suit as to all named Defendants. Later, on September 9, 2011, the trial court dismissed Plaintiff's action " without prejudice" in accordance with her notice of non-suit.

Shortly after this non-suit, Plaintiff gave new notices to Defendants pursuant to Tennessee Code Annotated § 29-26-121[3], and on February 29, 2012, Plaintiff filed the instant Complaint asserting medical malpractice against the Defendants. The new Complaint stated that notice had been given pursuant to Tennessee Code Annotated § 29-26-121, and proof of the notices sent to Defendants was attached as an exhibit.[4] Nothing in the record suggests that Plaintiff's compliance with Tennessee Code Annotated § 29-26-121 in the instant action has been challenged.

In response to the re-filed Complaint, all Defendants moved the trial court to dismiss Plaintiff's action pursuant to Rule 12 of the Tennessee Rules of Civil Procedure and/or grant summary judgment in their favor pursuant to Rule 56. In seeking dismissal of Plaintiff's claims, the Defendants suggested that Plaintiff's re-filed Complaint was time-barred. Because Plaintiff had failed to comply with the notice requirements of Tennessee Code Annotated § 29-26-121 in her initial lawsuit filed on May 6, 2011, the Defendants argued that the initial complaint was void and failed to toll the statute of limitations. The savings statute could not operate to save Plaintiff's claims, they argued, in light of her failure to give proper pre-suit notice in the first lawsuit.

Prior to any hearing on Defendants' motions, Plaintiff filed a Petition to declare that Tennessee Code Annotated § 29-26-121 and Tennessee Code Annotated § 29-26-122 are unconstitutional. The State of Tennessee subsequently motioned the trial

Page 521

court to intervene in the case in order to defend the constitutionality of both statutes, and on October 12, 2012, the trial court joined the State as an intervening Defendant. On April 12, 2013, the trial court entered an order denying Plaintiff's petition to declare Tennessee Code Annotated § 29-26-121 unconstitutional.[5]

On May 16, 2013, a hearing on Defendants' motions to dismiss/and or for summary judgment finally took place, and on June 26, 2013, the trial court issued a written order granting the Defendants their requests for relief. In its order, the trial court concluded that the notice letters mailed incident to Plaintiff's first lawsuit failed to comply with Tennessee Code Annotated ยง 29-26-121, and as such, it reasoned that the original action was improperly commenced such that Plaintiff could not rely on its filing date to satisfy the statute of limitations. In ...


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