June 23, 2015
JAMES T. PATTERSON
LINCOLN MEDICAL CENTER
Session February 24, 2015
Appeal from the Circuit Court for Lincoln County No. 13CV132 Franklin L. Russell, Judge
Robert S. Peters, Winchester, Tennessee, for the appellant, James T. Patterson.
Reid D. Leitner and Leighann D. Ness, Nashville, Tennessee, for the appellee, Lincoln Medical Center a/k/a Lincoln County Hospital, a part of the Lincoln County Health System.
Richard H. Dinkins, J., delivered the opinion of the court, in which Frank G. Clement, Jr., P. J., M. S., and Andy D. Bennett, J., joined.
RICHARD H. DINKINS, JUDGE
I. Factual Background
On December 28, 2012, James T. Patterson was admitted to the Lincoln Medical Center, a hospital owned and operated by Lincoln County, to have a catheter inserted into his urethra. On December 23, 2013, Mr. Patterson sent the Chief Executive Officer of the Lincoln County Health System a notice of a potential claim against the hospital, as required by the Health Care Liability Act ("HCLA"), Tenn. Code Ann. § 29-26-101, et. seq. Four days later, on December 27, Mr. Patterson filed suit in the Circuit Court for Lincoln County under the HCLA and the Governmental Tort Liability Act ("GTLA"), Tenn. Code Ann. § 29-20-101, et seq., against the Lincoln County Health System d/b/a Lincoln Medical Center. In the complaint, Mr. Patterson alleged that the catheter had been negligently inserted, causing him injuries and damages.
The hospital filed a Tenn. R. Civ. P. 12.02(6) motion to dismiss the complaint on the ground that Mr. Patterson had not provided written notice of the potential claim at least 60 days prior to filing suit as required by Tenn. Code Ann. § 29-26-121(a)(1). Mr. Patterson responded, asserting that, "as a result of a conflict" between the GTLA and the HCLA, he was"in somewhat of a dilemma" because the Tennessee Supreme Court's ruling in Cunningham v. Williamson Cnty. Hosp. Dist., 405 S.W.3d 41 (Tenn. 2013)required that his claim be filed within one year to satisfy the GTLA and that he also had to comply with the HCLA's 60-day notice requirement at Tenn. Code Ann. § 29-26-121(a)(1). The court held that Mr. Patterson had not demonstrated extraordinary cause to excuse his failure to comply with Tenn. Code Ann. § 29-26-121(a)(1) and dismissed the complaint.
Plaintiff appeals, articulating the following issue:
Whether this plaintiff who has brought a health care liability action under the Health Care Liability Act ([HCLA]) against a governmental entity under the Government Tort Liability Act (GTLA) reconciled the conflict within the HCLA and the GTLA when this action was commenced within sixty days of the running on the one-year GTLA statute of limitations by providing for an extension of time for the defendant to respond to the complaint.
II. Standard of Review
The purpose of a Tenn. R. Civ. P. 12.02(6) motion to dismiss is to determine whether the pleadings state a claim upon which relief can be granted. Making such a determination is a question of law; therefore, our review is de novo, with no presumption of correctness. Cullum v. McCool, 432 S.W.3d 829, 832 (Tenn. 2013) (citing Webb v. Nashville Area Habitat for Humanity, 346 S.W.3d 422, 426 (Tenn. 2011)).
An exception to the requirement that plaintiff give notice 60 days before instituting suit is available where a plaintiff shows extraordinary cause for failure to comply; the question of whether extraordinary cause has been demonstrated to excuse compliance with Tenn. Code Ann. § 29-26-121(a)(1) is a mixed question of law and fact, and our review of that determination is de novo with a presumption of correctness in regard to the trial court's findings of fact. Myers v. AMISHUB (SFB), Inc., 382 S.W.3d 300, 307-08 (Tenn. 2012) (citing Starr v. Hill, 353 S.W.3d 478, 481–82 (Tenn. 2011)).
In this case we are called on to consider whether Mr. Patterson's filing suit to comply with the one-year statute of limitations in the GTLA constituted extraordinary cause to excuse his non-compliance with the pre-suit notice procedures in the HCLA.
Tenn. Code Ann. § 29-20-305(b) provides that a suit brought under the GTLA for the tortious acts of a governmental entity must be commenced within one year of when the cause of action accrued. In 2011, the General Assembly amended Tenn. Code Ann. § 29-26-101(a) to include governmental entities within the definition of"health care providers" and to govern health care liability actions"against the state or political subdivision thereof.- The effect of the amendment was to place governmental entities, like Lincoln Medical Center, "within the ambit of the HCLA." Harper v. Bradley County, No. E2014-00107-COA-R9-CV, 2014 WL 5487788, at *6 (Tenn. Ct. App. Oct. 30, 2014). Thus, health care liability suits against governmental entities must comply with the procedures set forth in the HCLA.
Prior to filing suit against a health care provider under the HCLA, Tenn. Code Ann. § 29-26-121(a)(1) mandates that:
Any person, or that person's authorized agent, asserting a potential claim for health care liability shall give written notice of the potential claim to each health care provider that will be a named defendant at least sixty (60) days before the filing of a complaint based upon health care liability in any court of this state.
Our Supreme Court, in Myers v. AMISHUB (SFB), Inc., held that strict compliance with the pre-suit notice provision, absent a showing of extraordinary cause, is required for claims brought under the HCLA. 382 S.W.3d at 310. Tenn. Code Ann. § 29-26-121(b) grants trial courts the discretion to excuse strict compliance with pre-suit notice where extraordinary cause is shown. Id. In considering whether Mr. Patterson demonstrated extraordinary cause, we are guided by the term's plain and ordinary meaning. Shockley v. Mental Health Cooperative, Inc., 429 S.W.3d 582, 595 (Tenn. Ct. App. 2013) (citing Myers, 382 S.W.3d at 310-11)). Extraordinary cause may include"illness of the plaintiff's lawyer, a death in that lawyer's immediate family, [or] illness or death of the plaintiff's expert in the days before the filing became necessary." Id.
At the hearing on the motion to dismiss, the transcript of which was incorporated into the final order, the court stated the following:
Extraordinary cause, you would think initially that's just a set of really bizarre circumstances. A factual aberration is what I would call it " " is what I would anticipate that means.
This, instead, is really a rather predictable predicament for Plaintiff's to find themselves in, and I will say that, clearly, Mr. Peters foresaw this because in his filings at the front end of this process he was acknowledging it and he said in his notice we're not going to pursue this for 120 days because we're aware of what the statutory scheme says.
I think because of the failure to file 60 days ahead under the statute, that [the complaint] must be dismissed without prejudice in the absence of extraordinary cause, and I just can't find that extraordinary cause is here.
When Mr. Patterson gave notice of the potential claim to the hospital-December 23, 2013-it was clear that health care liability actions against governmental entities were governed by the procedures contained within the HCLA. By filing suit four days after giving notice to the hospital, Mr. Patterson did not comply with the 60-day pre-suit notice provision in Tenn. Code Ann. 29-26-121(a)(1). At the trial court and on appeal, Mr. Patterson does not assert that any of the examples of extraordinary cause mentioned in Shockley or some other unforeseen difficulty arose to excuse his failure to give notice 60 days before filing suit; we are not referred to any facts upon which to conclude that extraordinary cause exists.
Mr. Patterson asserts that he was forced to file suit four days after giving the hospital notice in accordance with the holding in Cunningham that the 2009 amendments to the HCLA, which extended the statute of limitations by 120 days where notice was properly given, did not apply to GTLA actions. He argues that he had to likewise meet the pre-suit notice requirements of the HCLA and did so by"extending the defendant's time to respond to the plaintiff's action." This argument is unavailing. The question before us is whether Mr. Patterson demonstrated extraordinary cause for failing to give the required 60-day notice prior to filing suit mandated by Tenn. Code Ann. § 29-26-121(b), not whether he showed extraordinary cause for filing suit when he did. There is no conflict between the statutes relative to the requirement of notice; at the time the action was filed, it was clear that the HCLA included a 60-day pre-suit notice requirement. It is this requirement which Mr. Patterson failed to meet and the record is devoid of facts which demonstrate the extraordinary cause necessary to waive the requirement.
We are not unsympathetic to Mr. Patterson's situation; however, the plain language of the HCLA is clear that notice must be given 60 days prior to filing suit. The purpose of the pre-suit notice requirement is that a"defendant be given notice of a [health care liability] claim before suit is filed, " Myers, 382 S.W.3d at 309; the requirement is"fundamental to the validity" of the statute and is mandatory. Id. Tenn. Code Ann. § 29-26-121(b) does not provide that extending a defendant more time to respond excuses non-compliance.
The evidence does not preponderate against the court's finding that extraordinary cause did not exist. In the absence of extraordinary cause, Mr. Patterson's complaint must stand dismissed.
For the foregoing reasons, the judgment of the trial court is affirmed.