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Shaw v. Gross

Court of Appeals of Tennessee, Jackson

February 9, 2018

HELEN SHAW AS ADMINISTRATOR FOR THE ESTATE OF JOHN SUTTLE
v.
LAWRENCE B. GROSS, M.D., ET AL.

          Session November 14, 2017

         Appeal from the Circuit Court for Shelby County No. CT-004166-15 Valerie L. Smith, Judge

         The plaintiff in a health care liability action appeals the dismissal of her claim on the basis of the expiration of the statute of limitations and the failure to provide pre-suit notice compliant with Tennessee Code Annotated section 29-26-121(a)(3)(B). Because the undisputed facts in the record fail to establish that decedent was aware of the alleged misdiagnosis prior to his death, we reverse the trial court's ruling on this issue. We also determine that the trial court failed to apply the appropriate standard or adequately explain its decision regarding the plaintiff's alleged non-compliance with section 29-26-121(a)(3)(B). We therefore vacate the dismissal of the complaint on this basis and remand for reconsideration in light of the appropriate standard. Reversed in part, vacated in part, and remanded.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed in Part, Vacated in Part, and Remanded

          Shantell S. Suttle, Memphis, Tennessee, for the appellant, Helen Shaw, as Administrator for the Estate of John Suttle.

          John C. Ryland, Kristine E. Nelson, Thomas Parker, Ormonde B. DeAllaume, Memphis, Tennessee, for the appellees, Methodist Healthcare-Memphis Hospitals, and Lawrence B. Gross, M.D.

          J. Steven Stafford, P.J., W.S., delivered the opinion of the court, in which Frank G. Clement, Jr., P.J., M.S., and Arnold B. Goldin, J., joined.

          OPINION

          J. STEVEN STAFFORD, JUDGE

         Background

         The facts of this case are largely undisputed for purposes of this appeal. On May 17, 2014, John Suttle ("Decedent") presented at the emergency room of Methodist South Hospital, owned and operated by Defendant/Appellee Methodist Healthcare-Memphis Hospitals ("the Hospital"). Decedent complained of "rib-trunk pain" and headache that resulted from a fall. The same day, Defendant/Appellee Lawrence B. Gross, M.D. (together with the Hospital, "Appellees") ordered lab work and examined Decedent. According to the complaint later filed in this case, Dr. Gross diagnosed Decedent with dehydration and released Decedent to return home. The next day Decedent returned to the emergency room via ambulance when he became lethargic and unresponsive. On this date, Decedent was diagnosed with sepsis[1] and cholecystitis.[2] Decedent died on June 14, 2014.On June 18, 2014, an autopsy report confirmed Decedent's cause of death as the result of septic shock and gangrenous cholecystitis.

         Beginning on June 5, 2015, Plaintiff/Appellant Helen Shaw, on behalf of Decedent's Estate ("Appellant") allegedly sent pre-suit notices of the potential claim at issue to various addresses associated with the medical providers in this case. While some notices were mailed on June 5, 2015, additional notices were mailed as late as July 29, 2015.No notices, however, were mailed at any time prior to June 5, 2015. According to Appellees, Appellant attempted to send notices to twenty-one different health care providers.

         On October 5, 2015, Appellant filed a complaint for damages against Appellees. The complaint alleged that Dr. Gross was negligent in failing to properly diagnose Decedent's sepsis on May 17, 2014, and that the delay in diagnosis and treatment caused by Dr. Gross's negligence resulted in Decedent's death. Additionally, the complaint alleged that the Hospital was vicariously liable for Dr. Gross's negligence. Appellant requested both compensatory and punitive damages totaling $2, 000, 000.00. Appellant attached to the complaint an affidavit detailing the efforts made to send pre-suit notice to Appellees.

         Dr. Gross filed an answer on November 12, 2015, denying that he committed negligence and raising the affirmative defense that the complaint was barred by the applicable statute of limitations and that pre-suit notice of the potential claim was not properly sent to Dr. Gross. On November 13, 2015, the Hospital filed a motion to dismiss, or in the alternative, for summary judgment, arguing that Appellant failed to provide notice of her potential health care liability action within the applicable statute of limitations and that Appellant failed to comply with the pre-suit notice provisions of the Tennessee Health Care Liability Act ("THCLA"). The Hospital's motion was accompanied by a memorandum of law and a statement of undisputed material facts. Appellant responded in opposition to the Hospital's motion on December 14, 2015, arguing that genuine issues of material fact precluded summary dismissal. Appellant accompanied her response with a response to the Hospital's statement of undisputed facts, largely admitting the facts surrounding Decedent's hospitalization, but denying that the statute of limitations had expired.

         On January 21, 2016, Dr. Gross filed a motion to amend his answer to allege additional averments related to the expiration of the statute of limitations and Appellant's compliance with the THCLA pre-suit notice requirements. The trial court granted Dr. Gross's motion to amend by order of February 12, 2016.

         On March 8, 2016, Dr. Gross filed a motion to dismiss, or in the alternative, for summary judgment. Therein, Dr. Gross argued that Appellant's claim was barred by the applicable statute of limitations and for failure to comply with the THCLA. The motion was accompanied by the affidavit of Dr. Gross, a memorandum of law, and a statement of undisputed material facts. On May 19, 2016, the Hospital filed its answer to the complaint, raising the expiration of the statute of limitations as an affirmative defense. In June 2016, Appellant responded in opposition to Dr. Gross's motion. On August 10, 2016, the Hospital joined in Dr. Gross's motion.

         Eventually, the trial court held a hearing on the pending motions to dismiss or for summary judgment and took the matter under advisement. On January 17, 2017, the trial court issued an oral ruling granting summary judgment in favor of Appellees. With regard to the statute of limitations issue, the trial court ruled that the statute of limitations began to run on May 18, 2014, meaning that all of the pre-suit notices sent by Appellant were untimely. The trial court further ruled that, however, even if the statute of limitations did not begin to run until the autopsy report was released on June 18, 2014, Appellant failed to establish that she sent timely notices to Appellees pursuant to the mailing requirements of the THCLA. Finally, the trial court declined to rule on Appellees' argument that the pre-suit notice was deficient because the notices did not contain HIPAA-compliant medical authorizations as required by the THCLA. The trial court later entered an amended order. From this ruling, Appellant now appeals.

         Issues Presented

         Appellant raises a single issue: Whether the trial court erred in granting summary judgment to Appellees. Additionally, Appellees assert that this Court should affirm the dismissal of Appellant's complaint for failure to provide a HIPAA-compliant medical authorization.

         Standard ...


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