LINDA DENNIS, ET AL.
DR. ROBERT G. SMITH, ET AL.
Session November 24, 2014
Appeal from the Circuit Court for Knox County No. 3-131-12 Deborah C. Stevens, Judge
Joyce W. Cooper, Michelle Owens, and Lynn Agee, Nashville, Tennessee, for the appellants Linda Dennis and Creed Dennis.
Hanson R. Tipton, and Courtney Epps Read, Knoxville, Tennessee, for the appellee, Dr. Robert G. Smith.
D. Michael Swiney, J., delivered the opinion of the Court, in which Charles D. Susano, Jr., C.J., and John W. McClarty, J., joined.
D. MICHAEL SWINEY, JUDGE
Plaintiffs filed a health care liability action against Defendant and Parkwest Medical Center on March 16, 2012. Defendant answered the complaint and filed a motion to dismiss alleging, among other things, that Plaintiffs had failed to comply with Tenn. Code Ann. §§ 29-26-121 and 29-26-122. Specifically, Defendant alleged that Plaintiffs had failed to comply with Tenn. Code Ann. § 29-26-121 because they failed to attach a HIPAA compliant medical authorization form to the notice letter, failed to attach a list of all health care providers to whom notice was given, and failed to list the address of the claimant authorizing the notice. Defendant further alleged that Plaintiffs had failed to comply with Tenn. Code Ann. § 29-26-122 because they failed to file a certificate of good faith executed by Plaintiffs or Plaintiffs' counsel and failed to disclose the number of prior violations pursuant to Tenn. Code Ann. § 29-26-122(d)(4).
Plaintiffs responded to Defendant's motion to dismiss by filing a motion for summary judgment asserting, in pertinent part, that Plaintiffs had provided a HIPAA compliant authorization form with the notice and a list of all defendants receiving notice, that the address of the claimant is required only if the notice is being sent by someone other than the patient, that Plaintiffs filed with their complaint a statement of their expert that exceeded the requirements of Tenn. Code Ann. § 29-26-122, and that neither Plaintiffs nor their counsel have any prior violations "so there is nothing to disclose anyway."
After a hearing the Trial Court entered its order on March 12, 2014 dismissing Plaintiffs' claims with prejudice after finding and holding, inter alia, (1) that Plaintiffs had failed to comply with Tenn. Code Ann. § 29-26-121(b) and had failed to show extraordinary cause to excuse the lack of compliance, and (2) that Plaintiffs had failed to comply with Tenn. Code Ann. § 29-26-122(a)(1) and § 29-26-122(d)(4) and failed to show extraordinary cause to excuse the lack of compliance. Plaintiffs appeal the dismissal of their suit to this Court.
Although not stated exactly as such, Plaintiffs raise two issues on appeal: 1) whether the Trial Court erred in dismissing Plaintiffs' claims based upon Plaintiffs' failure to comply with Tenn. Code Ann. § 29-26-122, and 2) whether the Trial Court erred in dismissing Plaintiffs' claims based upon Plaintiffs' failure to comply with Tenn. Code Ann. § 29-26-121.
As our determination regarding whether the Trial Court erred in dismissing Plaintiffs' claims with prejudice based upon Plaintiffs' failure to comply with Tenn. Code Ann. § 29-26-122 is dispositive of the case, we will address this issue first. As our Supreme Court has instructed:
The proper way for a defendant to challenge a complaint's compliance with Tennessee Code Annotated section 29-26-121 and Tennessee Code Annotated section 29-26-122 is to file a Tennessee Rule of Procedure 12.02 motion to dismiss. In the motion, the defendant should state how the plaintiff has failed to comply with the statutory requirements by referencing specific omissions in the complaint and/or by submitting affidavits or other proof. Once the defendant makes a properly supported motion under this rule, the burden shifts to the plaintiff to show either that it complied with the statutes or that it had extraordinary cause for failing to do so. Based on the complaint and any other relevant evidence submitted by the parties, the trial court must determine whether the plaintiff has complied with the statutes. If the trial court determines that the plaintiff has not complied with the statutes, then the trial court may consider whether the plaintiff has demonstrated extraordinary cause for its noncompliance. If the defendant prevails and the complaint is dismissed, the plaintiff is entitled to an appeal of ...