CHERYL DORTCH, PERSONAL REPRESENTATIVE OF ESTATE OF LATAVIUS DUJUAN DORTCH
METHODIST HEALTHCARE MEMPHIS HOSPITALS, ET AL.
Session February 1, 2018
Appeal from the Circuit Court for Shelby County No.
CT-003805-16 Robert L. Childers, Judge
a health care liability case. Appellant/Plaintiff first filed
suit against Appellees/Defendants for medical malpractice in
April 2014. Defendants filed motions to dismiss based on
Plaintiff's failure to comply with the pre-suit notice
requirements for health care liability claims. Before the
trial court could hear Defendants' motions to dismiss,
Plaintiff filed a notice of voluntary nonsuit, and an order
was entered thereon. Plaintiff subsequently re-filed her case
against Defendants in September 2016 in reliance on the one
year savings statute. Defendants moved the court to dismiss
Plaintiff's suit based on the statute of limitations. The
trial court granted Defendants' motions and dismissed
Plaintiff's claims with prejudice, holding that, because
Plaintiff's original pre-suit notice was defective, her
first complaint was untimely and she could not rely on the
savings statute to revive a time-barred cause of action. We
affirm the judgment of the trial court.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Court Affirmed and Remanded
Michael Harrell, Memphis, Tennessee, for the appellant,
J. Podesta, Jr., Memphis, Tennessee, for the appellee,
Methodist Healthcare Memphis Hospitals.
T. McColgan, III and Barret Lemuel Frederick, Cordova,
Tennessee, for the appellee, Medical Anesthesia Group.
Ryland, Memphis, Tennessee, for the apellees, Amara F.
Elochukwu and Ahmad H. Altabbaa.
Brandon O. Gibson, J., delivered the opinion of the court, in
which J. Steven Stafford, P.J., W.S., and Arnold B. Goldin,
BRANDON O. GIBSON, JUDGE.
Facts & Procedural History
Dortch presented to Methodist North Hospital on March 28,
2014, with complaints of swollen legs from his knees to his
feet. A CT scan showed that his heart was beating at only
thirteen percent (13%), and he was admitted to the hospital
that day. On April 3, 2014, Latavius Dortch went into surgery
to have a defibrillator installed. Appellant Cheryl Dortch,
Latavius Dortch's mother, alleges that following the
procedure, she was told by a doctor that her son was brain
dead due to a lack of oxygen during surgery. Latavius Dortch
died on July 11, 2015.
April 6, 2015, Ms. Dortch, through counsel, attempted to
serve Appellees with pre-suit notice of a health care
liability claim pursuant to Tennessee Code Annotated section
29-26-121 for the alleged "negligent medical treatment
Mr. Dortch received by health care provider(s)" at
Methodist North Hospital ("First Notice Letter").
Included with the First Notice Letter was a one page document
entitled "Authorization to Release Medical Records,
" which was executed by Ms. Dortch. Although Ms. Dortch
apparently intended this document to serve as a HIPAA
compliant medical authorization as required by Tennessee Code
Annotated section 29-26-121(a)(2)(E), the authorization only
permitted the recipient entity to send the medical records of
Latavius Dortch to Plaintiff's counsel. On July 1, 2015,
Ms. Dortch, as the purported conservator of Latavius Dortch,
filed a complaint for medical malpractice against Appellees,
alleging that the negligent medical care and injury to
Latavius Dortch began on April 3, 2014 ("First
being served with the First Complaint, Appellees filed
motions to dismiss Ms. Dortch's complaint pursuant to
Rule 12.02(6) of the Tennessee Rules of Civil Procedure based
on Ms. Dortch's failure to comply with Tennessee Code
Annotated section 29-26-121. Among other things, Appellees
asserted that the medical authorization attached to the First
Notice Letter did not comply with the pre-suit notice
requirements for health care liability claims found in
Tennessee Code Annotated 29-26-121(a)(2)(E). Appellees
contended that the HIPAA authorizations were defective
because they only authorized the release of Latavius
Dortch's medical records to Plaintiff's counsel
rather than to each other provider being sent the First
Notice Letter as required by section 121(a)(2)(E). However,
on September 11, 2015, before ...