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Igou v. Vanderbilt University

Court of Appeals of Tennessee, Nashville

March 27, 2015

JOSEPH IGOU, ET AL.
v.
VANDERBILT UNIVERSITY

Session August 19, 2014

Appeal from the Circuit Court for Davidson County No. 13C1647 Thomas W. Brothers, Judge

Amy J. Farrar, Murfreesboro, Tennessee, and Matthew C. Hardin, Nashville, Tennessee, for the appellant, Ginger Igou.

Steven E. Anderson, Sara F. Reynolds, and Sean C. Wlodarczyk, Nashville, Tennessee, for the appellee, Vanderbilt University.

W. Neal McBrayer, J., delivered the opinion of the Court, in which Frank G. Clement, Jr., P.J., M.S., and Richard H. Dinkins J., joined.

OPINION

W. NEAL MCBRAYER, JUDGE

I. Background and Procedural History

This appeal arises out of injuries suffered by Plaintiff, Joseph Igou, following a surgery at Vanderbilt University Medical Center on December 21, 2011. Mr. Igou, age 37 at the time of the surgery, had a history of ongoing medical issues related to ulcerative colitis that required him to undergo a total proctectomy and iloanal pouch procedure in April 2009. Mr. Igou continued to experience difficulties, and he eventually sought treatment from a colon and rectal surgeon, Alan Herline, M.D., at Vanderbilt. Dr. Herline recommended that the pouch be removed and Mr. Igou utilize an ileostomy going forward.

This recommendation led to the December 21, 2011 procedure that gave rise to Mr. Igou's injuries. Mr. Igou alleges that Dr. Herline made a surgical error that resulted in a large hole being burned into his urethra. Mr. Igou claims that the injury was compounded by Dr. Herline's failure to recognize the error. The hospital discharged Mr. Igou on December 24, 2011, but he was forced to return on the following day, at which point his injury was discovered. Mr. Igou claims to suffer from continued injury and impotence as a result of the procedure.

Written notice of Mr. Igou's claims against Vanderbilt was provided on December 12, 2012, under Tennessee Code Annotated § 29-26-121 (2012) (the "pre-suit notice provision") of the Tennessee Health Care Liability Act ("THCLA"). The notice letter identified Mr. Igou as the claimant and stated that he was "asserting a potential claim for medical malpractice" against Vanderbilt. The notice also included all other documentation necessary to Mr. Igou's compliance with the pre-suit notice provision: his full name, address, and birthdate, as both the patient whose treatment was at issue and the claimant; the name and address of the attorney sending notice; a list of the name and address of all providers being sent notice; and a HIPAA[1] compliant medical authorization, permitting access to Mr. Igou's medical records.

When Mr. Igou's complaint was filed on April 18, 2013, his wife, Ginger Igou, joined him as co-Plaintiff, asserting claims for "damages related to her responsibility for Mr. Igou's medical bills, expenses and travel costs, " as well as a claim for loss of consortium. However, the December 12, 2012 notice letter made no mention of Mrs. Igou as a potential claimant nor did it discuss any of her potential claims. Alongside the complaint, a certificate of good faith was filed in accordance with Tennessee Code Annotated § 29-26-122 (2012), stating that the Igous had consulted with an expert who believed there was "a good faith basis to maintain the action consistent with [Tennessee Code Annotated] § 29-26-115 [(2012)]."

Vanderbilt's attorneys filed an answer to the complaint and a motion to dismiss Mrs. Igou's claims on May 16, 2013. They argued that because Mrs. Igou had not provided notice as a potential claimant in the December 12, 2011 pre-suit notice letter, her claims must be dismissed for failure to comply with the THCLA. As an additional ground for dismissal, Vanderbilt argued that Mrs. Igou's claims failed to comply with the applicable one-year statute of limitation, Tennessee Code Annotated § 29-26-116 (2012), because the claims arose in December 2011 and Mrs. Igou had not filed suit until April 2013. Although Tennessee Code Annotated § 29-26-121 provides for a 120-day extension of the statute of limitation, the motion contended that Mrs. Igou was not eligible for such an extension because she had failed to comply with the pre-suit notice provision.

In response to Vanderbilt's motion to dismiss, Mrs. Igou agreed to the dismissal of her "individual claim as to medical bills, expenses and travel costs." Notice of nonsuit of those claims was filed on the same day. This left only Mrs. Igou's claim for loss of consortium. As to that claim, Mrs. Igou argued that her loss of consortium claim was derivative of Mr. Igou's claims and, therefore, should be allowed to continue under the pre-suit notice he provided.

The trial court entered an order of voluntary non-suit of Mrs. Igou's claims related to medical bills, expenses, and travel costs, and conducted a hearing on Vanderbilt's motion to dismiss on August 30, 2013. In an oral ruling, the trial court found that Mrs. Igou's loss of consortium claim was subject to the pre-suit notice provision and dismissed Mrs. Igou's claim for failure to comply with the THCLA under Tennessee Rule of Civil Procedure 12.02(6). As a second basis for dismissal of Mrs. Igou's loss of consortium claim, the court found that the notice provided by Mr. Igou was insufficient to toll the statute of limitation for Mrs. Igou's claim and, therefore, she had failed to bring suit in a timely manner. The trial court entered an order confirming its ruling on September 27, 2013.

Mrs. Igou responded by filing a motion on October 28, 2013, seeking certification of the trial court's September 27, 2013 order as final under Tennessee Rule of Civil Procedure 54.02. The trial court granted the motion on November 25, 2013, and Mrs. Igou timely appealed.

Mrs. Igou raises several issues on appeal: (1) whether her claim for loss of consortium is subject to the pre-suit notice provision of the THCLA; (2) whether, assuming the pre-suit notice provision does apply, her claim should nonetheless be allowed to proceed because she substantially complied with the THCLA's requirements; (3) whether extraordinary cause exists to excuse Mrs. Igou's non-compliance with the THCLA; (4) whether dismissal of Mrs. Igou's suit is the appropriate remedy for failure to comply with the pre-suit notice provision; and (5) whether Mrs. Igou's claims were filed within the relevant statute of limitation.

II. Analysis

A motion to dismiss under Tennessee Rule of Civil Procedure 12.02(6) tests "the legal sufficiency of the complaint, not the strength of the plaintiff's proof." Lanier v. Rains, 229 S.W.3d 656, 660 (Tenn. 2007). The trial court looks solely to the complaint, focusing on substance over form, in deciding a motion to dismiss. City of Brentwood v. Metro. Bd. of Zoning Appeals, 149 S.W.3d 49, 54 (Tenn. Ct. App. 2004). Dismissal "is warranted only when the alleged facts will not entitle the plaintiff to relief or when the complaint is totally lacking in clarity and specificity." Id.

Our review of a dismissal under Rule 12.02(6) construes the complaint liberally in favor of the plaintiff and accepts all relevant and material allegations contained in the complaint as true. Lainer, 229 S.W.3d at 660. We review the trial court's legal conclusions de novo, with no presumption of correctness. Doe v. Sundquist, 2 S.W.3d 919, 922 (Tenn. 1999).

A. Applicability of the THCLA to Mrs. Igou's Loss of Consortium Claim

Mrs. Igou's argument that her loss of consortium claim is not subject to the procedural requirements of the THCLA is two-fold. First, she argues that her claim for loss of consortium is not a "health care liability action" as defined by the THCLA. Second, even if her claim is a health care liability action, Mrs. Igou contends that as a derivative action, Mr. Igou's pre-suit notice also ...


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