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Piper v. Cumberland Medical Center

Court of Appeals of Tennessee, Knoxville

January 20, 2017

ROBERTA PIPER, FOR HERSELF AS SPOUSE AND WIDOW OF MERLE PIPER, DECEASED
v.
CUMBERLAND MEDICAL CENTER ET AL.

          Submitted on Briefs November 1, 2016

         Appeal from the Circuit Court for Cumberland County No. CC1-2015-CV-6044 Amy Hollars, Judge

         The plaintiff filed this health care liability action on behalf of herself and her deceased husband, alleging that his death was caused by the negligent care he received from the defendant hospital and physicians. The defendants moved to dismiss the plaintiffs claims because she failed to comply with the requirements of Tennessee Code Annotated § 29-26-121(a)(2)(D) and (E). The trial court granted the motions and dismissed the plaintiffs claims. The plaintiff has appealed. Discerning no reversible error, we affirm the trial court's judgment of dismissal.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed; Case Remanded

          Ronald Aronds, Ooltewah, Tennessee, for the appellant, Roberta Piper.

          F. Michael Fitzpatrick and Rachel Park Hurt, Knoxville, Tennessee, for the appellee, Cumberland Medical Center.

          James G. O'Kane, Knoxville, Tennessee, for the appellee, Ayca Kabasakal, M.D.

          David E. Waite and Richard A. McCall, Knoxville, Tennessee, for the appellee, Merhaf K. Zeino, M.D.

          Thomas R. Frierson, II, J., delivered the opinion of the court, in which Andy D. Bennett, J., and J. Steven Stafford, P.J., W.S., joined.

          OPINION

          THOMAS R. FRIERSON, II, JUDGE

         I. Factual and Procedural Background

         Roberta Piper, as spouse and widow of Merle Piper ("Decedent"), filed a health care liability action on October 13, 2015, in the Circuit Court for Cumberland County. Ms. Piper asserted in her complaint that the Decedent was treated by defendants Merhaf K. Zeino, M.D., and Ayca Kabasakal, M.D., at the Cumberland Medical Center ("CMC") from October 18, 2014, until his death on October 28, 2014.[1] According to the complaint, Decedent sought treatment at CMC for fatigue and underwent a urinalysis. Decedent was diagnosed with stage four kidney failure. Ms. Piper alleged in the complaint that on October 28, 2014, Dr. Kabasakal remarked to Ms. Piper that "it was a shame they couldn't treat her husband due to his religious beliefs." Ms. Piper subsequently discovered that Decedent's chart incorrectly listed his religious affiliation as Jehovah's Witness. Although Ms. Piper corrected this misinformation and gave permission for treatment, Decedent passed away that same night. Ms. Piper also asserted in the complaint that the defendant physicians were negligent because they incorrectly assumed that Decedent's religious beliefs guaranteed that he would reject available life-saving treatment and because they failed to ask Decedent or Ms. Piper for permission to administer such treatment.

         According to the complaint, Ms. Piper purportedly complied with the notice provisions contained in Tennessee Code Annotated § 29-26-121 by delivering the required notices to Defendants at least sixty days before the filing of the complaint. Ms. Piper attached copies of undated postal receipts addressed to each defendant. However, the record demonstrates that Ms. Piper did not attach to the complaint a certificate of mailing from the United States Postal Service, an affidavit regarding her mailing of the notices, or copies of the notices. See Tenn. Code Ann. § 29-26-121(a)(3), (4) (Supp.2016).[2]

         Dr. Kabasakal filed a motion to dismiss on November 30, 2015, asserting that Ms. Piper had failed to comply with the mandatory pre-suit notice requirements contained in Tennessee Code Annotated § 29-26-121. Dr. Kabasakal asserted that Ms. Piper failed to provide the required HIPAA-compliant medical authorization and failed to provide a list of other health care providers receiving notice. Dr. Kabasakal also complained that Ms. Piper failed to demonstrate that the notice was timely sent because the letter and the postal receipts attached to the complaint were undated. In support of the motion, Dr. Kabasakal attached an affidavit, wherein she stated that the only document she received from Ms. Piper or her counsel prior to the filing of the complaint was the undated notice letter. Dr. Kabasakal attached the undated notice letter she had received to evince that plaintiff failed to identify other health care providers.

         CMC and Dr. Zeino filed similar motions to dismiss on December 2, 2015, and December 3, 2015, respectively. The trial court conducted a hearing regarding the pending motions on January 29, 2016. Following the hearing, the court entered an order granting the motions to dismiss on February 12, 2016. In this order, the court found that Ms. Piper had failed to comply with Tennessee Code Annotated ...


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