SAMMIE L. BROOKINS ET AL.
OWEN B. TABOR, JR., ETAL.
Session January 31, 2018
from the Circuit Court for Shelby County No. CT-002743-16
Robert L. Childers, Judge No. W2017-00576-COA-R3-CV
plaintiff filed a health care liability complaint in 2015
against several physicians and entities that he later
non-suited in order to comply with the pre-suit notice
requirements set forth in Tenn. Code Ann. §
29-26-121(a). The plaintiff then filed a second complaint
against the same defendants, relying on the saving statutes
of Tenn. Code Ann. § 28-1-105 and Tenn. Code Ann. §
29-26-121(c) to extend his statute of limitations. The
plaintiff's wife joined him as a plaintiff in the second
complaint. The defendants filed motions to dismiss, alleging
non-compliance with the pre-suit notice requirements and the
statute of limitations. The trial court granted all of the
defendants' motions and dismissed the complaint. The
plaintiffs appealed the trial court's dismissal of the
complaint against the physicians. Interpreting the complaint
liberally and presuming the truth of plaintiffs'
allegations regarding the HIPAA authorizations, we reverse
the trial court's dismissal of the complaint against two
of the physicians and affirm the dismissal of the complaint
against one of the physicians on statute of limitations
grounds. We affirm the trial court's judgment dismissing
the wife's claims against all of the defendants.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Court Affirmed in Part and Reversed in Part
L. Brookins and Deloris T. Brookins, Memphis, Tennessee, Pro
O. Alexander, IV, Memphis, Tennessee, and Jennifer Vallor
Ivy, Jackson, Tennessee, for the appellee, John D. Fleenor.
M. Clark and Samantha Erin Bennett, Memphis, Tennessee, for
the appellees, Owen B. Tabor, Jr., Margarita Lamothe, and MSK
D. Bennett, J., delivered the opinion of the Court, in which
Arnold B. Goldin and Brandon O. Gibson, JJ., joined.
D. BENNETT, JUDGE
L. Brookins filed a health care liability complaint on
January 29, 2015, against three individuals and five entities
based on an alleged failed hip replacement, subsequent
infection, and kidney failure that he alleged were a result
of the defendants' negligent care. Mr. Brookins failed to
provide the defendants with pre-suit notice of a potential
claim as required by Tenn. Code Ann. § 29-26-121(a)(1),
and several of the defendants filed motions to dismiss based
on this oversight. Mr. Brookins filed a notice of voluntary
non-suit as to all defendants other than Dr. John Fleenor and
St. Francis Hospital Foundation ("St. Francis
Hospital") on March 3, and the trial court entered an
order of voluntary non-suit as to these other defendants on
April 16, 2015. The trial court then dismissed the
plaintiffs' complaint against St. Francis Hospital and
Dr. Fleenor on September 21, 2015, "for lack of
prosecution without prejudice."
Brookins filed a second complaint against the same defendants
for the same acts of negligence on July 6, 2016. Mr.
Brookins' wife, Deloris T. Brookins, joined Mr. Brookins
as a plaintiff in the 2016 complaint, and she sought damages
for loss of consortium as a result of the harm her husband
suffered from the defendants' negligence. In the first
full paragraph of their complaint, the Brookinses stated that
they were filing the complaint pursuant to Tennessee's
saving statute, Tenn. Code Ann. § 28-1-105. The
Brookinses attached a certificate of good faith to the
complaint, and Mr. Brookins also attached an affidavit of
mailing notice of claim letters to each of the defendants.
Mr. Brookins included copies of the notice of claim letters,
each of which were dated November 7, 2015, with his
affidavit. He also included copies of HIPAA compliant
authorizations dated November 7, 2015, that he certified he
provided to the defendants along with the pre-suit notices.
August 2, 2016, Dr. Owen B. Tabor, Jr., Dr. Margarita
Lamothe, and MSK Group, P.C. filed motions to dismiss the
complaint on the ground that it was time-barred as a result
of the Brookinses' failure to comply with the pre-suit
notice requirements set forth in Tenn. Code Ann. §
29-26-121(a)(2)(E). According to these defendants, Mr.
Brookins was not permitted to rely on the 120-day extension
of the saving statute available under the health care
liability act at Tenn. Code Ann. § 29-26-121(c) because
he failed to comply with all of the pre-suit notice
requirements set forth in the statute. With respect to Mrs.
Brookins, these defendants argued her claim was time-barred
because she did not file her consortium claim within the
applicable one-year statute of limitations.
John D. Fleenor filed an answer to the complaint as well as a
motion to dismiss and/or for summary judgment. According to
Dr. Fleenor, the saving statute was not available to Mr.
Brookins because the original complaint was never served upon
him in accordance with Tennessee Rule of Civil Procedure 3.
Dr. Fleenor also contended that the first complaint, filed on
January 29, 2015, was time-barred because the negligence Mr.
Brookins attributed to Dr. Fleenor occurred more than one
year prior to that date. Alternatively, Dr. Fleenor argued
the Brookinses failed to comply with the pre-suit notice
requirements of Tenn. Code Ann. § 29-26-121(a). With
regard to Mrs. Brookins, Dr. Fleenor made the same statute of
limitations argument as Dr. Tabor and Dr. Lamothe.
Brookinses served interrogatories and a request for the
production of documents on each of the individual physicians
on October 11, 2016. When the defendants failed to respond to
the discovery requests, the Brookinses filed a motion to
compel discovery. The defendants responded to the motion to
compel by stating that the discovery requests were served
prematurely. If the trial court granted their motions to
dismiss, the defendants argued, the dismissal would be
dispositive of any remaining issues in the case.
trial court held a hearing on December 16, 2016, to consider
the motions to dismiss and/or for summary judgment and the
motion to compel. In orders filed on January 17, 2017, the
trial court granted all the motions to dismiss, finding the
complaint was barred by the statute of
limitations. The orders dismissing the complaint with
respect to Dr. Tabor, Dr. Lamothe, and MSK Group, P.C., were
essentially the same. In the order dismissing the complaint
against Dr. Tabor, the trial court made the following
1. On January 29, 2015, the Plaintiff, Sammie Brookins,
acting pro se, filed a complaint against Dr. Tabor
asserting a claim for health care liability.
2. On April 16, 2015, the Court entered the Order of
Voluntary Non-Suit Without Prejudice as to Dr. Tabor.
3. On or about November 12, 2015, Mr. Brookins sent pre-suit
notice to Dr. Tabor giving notice of a potential health care
liability claim that may be filed against him by Mr. Brookins
and his wife, Deloris Brookins.
4. The pre-suit notice letter sent to Dr. Tabor did not
include a HIPAA compliant medical authorization that would
allow him to obtain Mr. Brookins' medical records from
all other health care providers who were sent notice.
5. The Plaintiffs failed to substantially comply with the
pre-suit notice requirements of Tennessee Code Annotated
6. The Plaintiffs were not entitled to the 120-day extension
of the statute of limitations available under Tennessee Code
Annotated § 29-26-121(c) to plaintiffs who satisfy the
requisite degree of compliance with the requirements of
Tennessee Code Annotated § 29-26-121.
7. Under the Tennessee saving statute, Tennessee Code
Annotated § 28-1-105, the statute of limitations on Mr.
Brookins' claim ran on April 16, 2016.
8. The Plaintiffs' Complaint, which was filed on July 6,
2016, was filed after the lapse of the statute of limitation
and is, therefore, time-barred.
9. Plaintiff, Deloris Brookins, was not named as a plaintiff
in the action filed on January 29, 2015.
10. The loss of consortium claim of Deloris Brookins is also
time-barred by the statute of limitations, as she was made a
party for the first time in the July 6, 2016 Complaint.
trial court also dismissed Dr. Fleenor from the complaint.
Dr. Fleenor was treated differently than Drs. Tabor and
Lamothe because Dr. Fleenor was not served with the first
complaint, as the other two doctors were, and Mr. Brookins
did not voluntarily dismiss his initial complaint against Dr.
Fleenor. In the order granting Dr. Fleenor's motion to
dismiss and/or for summary judgment, the trial court wrote:
(1) The statute of limitations has expired on Plaintiff
Sammie Brookins' claims against Dr. Fleenor. Mr. Brookins
filed his first Complaint on January 29, 2015, almost two (2)
years after the alleged malpractice and injury occurred
during a hospital admission in February 2013. Mr. Brookins
did not serve Dr. Fleenor with process in the first-filed
action and that action was dismissed for lack of prosecution
on September 21, 2015. Because there was no ...