BETTY J. GRIZZLE
PARKWEST MEDICAL CENTER
Session: April 18, 2017
from the Circuit Court for Knox County No. 3-33-16 Deborah C.
plaintiff initiated this health care liability action on
January 25, 2016. The defendant medical provider filed a
motion to dismiss, asserting that the plaintiff had failed to
attach the documentation required by Tennessee Code Annotated
§ 29-26-121(b) to demonstrate that proper pre-suit
notice had been transmitted. The defendant also asserted that
the plaintiff's claims should be dismissed for failure to
substantially comply with the requirements of Tennessee Code
Annotated § 29-26-121(a)(2)(E) regarding a medical
authorization compliant with the Health Insurance Portability
and Accountability Act ("HIPAA"). While noting that
the plaintiff had substantially complied with Tennessee Code
Annotated § 29-26-121(a)(4) and (b), the trial court
found that the medical authorization forwarded by the
plaintiff was incomplete and failed to comply with
HIPAA's release requirements. The trial court therefore
dismissed the plaintiff's claims. The plaintiff has
timely appealed. We affirm the trial court's
determination that the plaintiff substantially complied with
Tennessee Code Annotated § 29-26-121(a)(4) and (b). We
reverse, however, the trial court's determination that
the plaintiff's claims should be dismissed for failure to
substantially comply with Tennessee Code Annotated §
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Court Affirmed in Part, Reversed in Part; Case Remanded
Franklin Chancey, Cleveland, Tennessee, for the appellant,
Betty J. Grizzle.
Broderick L. Young and F. Michael Fitzpatrick, Knoxville,
Tennessee, for the appellee, Parkwest Medical Center.
R. Frierson, II, J., delivered the opinion of the court, in
which Charles D. Susano, Jr., J., and J. Steven Stafford,
P.J., W.S., joined.
R. FRIERSON, II, JUDGE.
Factual and Procedural Background
plaintiff, Betty J. Grizzle, underwent total hip replacement
surgery at Parkwest Medical Center ("Parkwest") on
or about November 4, 2014. Ms. Grizzle awoke from her surgery
experiencing severe chest pain. When Ms. Grizzle complained
to the hospital staff about this pain, hospital staff
performed an x-ray. The x-ray confirmed that Ms. Grizzle was
suffering from broken ribs. Ms. Grizzle was apparently
provided no explanation as to how the injury to her ribs had
January 25, 2016, Ms. Grizzle filed a health care liability
action against Parkwest in the Knox County Circuit Court
("trial court"). In her complaint, Ms. Grizzle
specifically averred that she had complied with the pre-suit
notice requirements found in Tennessee Code Annotated §
29-26-121. Despite such averment, Ms. Grizzle did not provide
the requisite documentation with her complaint establishing
proof of pre-suit notice. Ms. Grizzle did, however, file the
certificate of good faith required by Tennessee Code
Annotated § 29-26-122.
subsequently filed a motion to dismiss, asserting that Ms.
Grizzle had failed to attach to her complaint the
documentation required by Tennessee Code Annotated §
29-26-121(a)(4) and (b). Parkwest further asserted that the
medical authorization provided with Ms. Grizzle's
pre-suit notice was not HIPAA compliant. Parkwest attached a
copy of the medical authorization that had accompanied the
pre-suit notice, demonstrating that certain blanks on the
form had not been filled, including the name of the medical
provider and the treatment dates. Parkwest did not dispute,
however, that Ms. Grizzle transmitted pre-suit notice.
Grizzle subsequently provided a "notice of filing"
on March 14, 2016, attaching copies of the pre-suit notice
letter and allegedly HIPAA-compliant authorization sent to
Parkwest. Ms. Grizzle did not file the affidavit required by
Tennessee Code Annotated § 29-26-121(a)(4). On April 8,
2016, the trial court conducted a hearing regarding
Parkwest's motion to dismiss. The court subsequently
entered an order on April 29, 2016, dismissing Ms.
Grizzle's claims. The court first determined that Ms.
Grizzle had substantially complied with Tennessee Code
Annotated § 29-26-121(a)(4) and (b), despite the lack of
an affidavit. However, the court also determined that Ms.
Grizzle had failed to fulfill the requirements of Tennessee
Code Annotated § 29-26-121(a)(2)(E) because the medical
authorization provided by Ms. Grizzle was not HIPAA
compliant. The court specifically found that the
authorization contained a number of spaces for information
that remained blank, including the spaces for the name of the
medical provider to whom the authorization was directed and
for Ms. Grizzle's treatment dates. The court relied upon
this Court's decision in Bray v. Khuri in
determining that Ms. Grizzle's medical authorization did
not comply with HIPAA's requirements. See Bray v.
Khuri, No. W2015-00397-COA-R3-CV, 2015 WL 7775316, at *4
(Tenn. Ct. App. Dec. 3, 2015), rev'd by Bray v.
Khuri, ___ S.W.3d ___, No. W2015-00397-SC-R11-CV, 2017
WL 2856697 (Tenn. July 5, 2017). The trial court thereby
dismissed Ms. Grizzle's complaint pursuant to Tennessee
Code Annotated § 29-26-121. Ms. Grizzle timely appealed.
Grizzle presents one issue for our review, which we have
1. Whether the trial court erred by dismissing Ms.
Grizzle's action based upon her failure to substantially
comply with the requirements of Tennessee Code Annotated
§ 29-26-121(a)(2)(E) regarding a HIPAA-compliant medical
raises the following additional issue, which we have also
2. Whether the trial court erred by determining that Ms.
Grizzle substantially complied with the requirements of
Tennessee Code Annotated § 29-26-121(a)(4) and (b)
regarding the filing of documentation establishing that
proper pre-suit notice was provided.
Standard of Review
Supreme Court has elucidated the following regarding the
standard of review applicable to a motion to dismiss a health
care liability action based upon the plaintiff's
noncompliance with Tennessee Code Annotated § 29-26-121:
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 right under Tennessee Rule of Appellate Procedure 3
using the standards of review in Tennessee Rule of Appellate
Procedure 13. If the plaintiff prevails, the defendant may
pursue an interlocutory appeal under either Tennessee Rule of
Appellate Procedure 9 or 10 using the same standards.
Because the trial court's denial of the Defendants'
motion involves a question of law, our review is de novo with
no presumption of correctness. Graham v. Caples, 325
S.W.3d 578, 581 (Tenn. 2010). . . . We examine the legal
sufficiency of the complaint and do not consider the strength
of the plaintiff's evidence; thus, all factual
allegations in the complaint are accepted as true and
construed in favor of the plaintiff. Lind v. Beaman
Dodge, Inc., 356 S.W.3d 889, 894 (Tenn. 2011).
The leading rule governing our construction of any statute is
to ascertain and give effect to the legislature's intent.
Walker v. Sunrise Pontiac-GMC Truck, Inc., 249
S.W.3d 301, 309 (Tenn. 2008). To that end, we start with an
examination of the statute's language, Curtis v. G.E.
Capital Modular Space,155 S.W.3d 877, 881 (Tenn. 2005),
presuming that the legislature intended that each word be
given full effect. Lanier v. Rains,229 S.W.3d 656,
661 (Tenn. 2007). When the import of a statute is
unambiguous, we discern legislative intent "from the
natural and ordinary meaning of the statutory language within
the context of the entire statute without any forced or
subtle construction that would extend or limit the
statute's meaning." State v. Flemming, 19
S.W.3d 195, 197 (Tenn. 2000); see also In re Adoption of
A.M.H.,215 S.W.3d 793, 808 (Tenn. 2007) ("Where
the statutory language is not ambiguous . . . the plain and
ordinary meaning of the statute must be given ...