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Dortch v. Methodist Healthcare Memphis Hospitals

Court of Appeals of Tennessee, Jackson

February 5, 2018

CHERYL DORTCH, PERSONAL REPRESENTATIVE OF ESTATE OF LATAVIUS DUJUAN DORTCH
v.
METHODIST HEALTHCARE MEMPHIS HOSPITALS, ET AL.

          Session February 1, 2018

         Direct Appeal from the Circuit Court for Shelby County No. CT-003805-16 Robert L. Childers, Judge

         This is 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.

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

          Michael Harrell, Memphis, Tennessee, for the appellant, Cheryl Dortch.

          Eugene J. Podesta, Jr., Memphis, Tennessee, for the appellee, Methodist Healthcare Memphis Hospitals.

          James T. McColgan, III and Barret Lemuel Frederick, Cordova, Tennessee, for the appellee, Medical Anesthesia Group.

          John 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, J., joined.

          OPINION

          BRANDON O. GIBSON, JUDGE.

         I. Facts & Procedural History

         Latavius 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.

         On 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 Complaint").

         After 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).[1] 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 ...


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