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Brookins v. Tabor

Court of Appeals of Tennessee, Jackson

May 8, 2018

SAMMIE L. BROOKINS ET AL.
v.
OWEN B. TABOR, JR., ETAL.

          Session January 31, 2018

          Appeal from the Circuit Court for Shelby County No. CT-002743-16 Robert L. Childers, Judge

         A 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. We affirm the trial court's dismissal of the complaint against all three of the physicians on statute of limitations grounds. We also affirm the trial court's judgment dismissing the wife's claims against all of the defendants.

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

          Sammie L. Brookins and Deloris T. Brookins, Memphis, Tennessee, Pro Se.

          John O. Alexander, IV, Memphis, Tennessee, and Jennifer Vallor Ivy, Jackson, Tennessee, for the appellee, John D. Fleenor.

          Joseph M. Clark and Samantha Erin Bennett, Memphis, Tennessee, for the appellees, Owen B. Tabor, Jr., Margarita Lamothe, and MSK Group, PC.

          Andy D. Bennett, J., delivered the opinion of the Court, in which Arnold B. Goldin and Brandon O. Gibson, JJ., joined.

          OPINION

          ANDY D. BENNETT, JUDGE

         I. Background

         Sammie 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."

         Mr. 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.

         On 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.

         Dr. 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.

         The 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.

         The 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.[1] 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 findings:

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 § 29-26-121(a)(2)(E).
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.

         The 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 ...

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