                   IN THE COURT OF APPEALS OF TENNESSEE
                               AT NASHVILLE
                                    September 12, 2013 Session

    AUBREY E. GIVENS, ADMINISTRATOR OF THE ESTATE OF JESSICA
    E. GIVENS, DECEASED, ET. AL. V. THE VANDERBILT UNIVERSITY D/B/A
                      VANDERBILT UNIVERSITY HOSPITAL, ET. AL.

                     Appeal from the Circuit Court for Davidson County
                     No. 10C2046 Hon. Amanda J. McClendon, Judge




                  No. M2013-00266-COA-R3-CV - Filed October 24, 2013


This is a medical malpractice1 action arising from the death of Decedent. Defendants moved
to dismiss the action for failure to comply with the notice requirements set out in Tennessee
Code Annotated section 29-26-121. The trial court agreed and dismissed the action.
Plaintiffs appeal the dismissal. We hold that section 29-26-121 does not mandate dismissal
with prejudice for noncompliance with its terms and that the failure to comply with the notice
requirements does not mandate dismissal under the facts of this case. We vacate the
dismissal order and remand for further proceedings.

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

J OHN W. M CC LARTY, J., delivered the opinion of the court, in which D. M ICHAEL S WINEY
and T HOMAS R. F RIERSON, II, JJ., joined.

Aubrey T. Givens and John Jay Clark, Nashville, Tennessee, for the appellants, Aubrey E.
Givens, individually and as administrator of the estate of Jessica E. Givens, deceased, and
Jessica R. Givens.




1
 Tennessee Code Annotated section 29-26-101 now defines most all cases occurring in a medical context
as “health care liability actions.” The statute specifies that such an action “means any civil action, including
claims against the state or a political subdivision thereof, alleging that a health care provider or providers
have caused an injury related to the provision of, or failure to provide, health care services to a person,
regardless of the theory of liability, on which the action is based.” See Acts 2011, ch. 510, § 8. Effective
April 23, 2012, the term “health care liability” replaced “medical malpractice” in the Code. See Acts 2012,
ch. 798. The provisions of the revised statute do not apply to this action.
Steven E. Anderson and Sean C. Wlordarczyk, Nashville, Tennessee, for the appellees, the
Vanderbilt University d/b/a Vanderbilt University Hospital and David Slosky, M.D.

                                         OPINION

                                    I. BACKGROUND

       On September 8, 2006, Jessica E. Givens (“Decedent”) was admitted to the Vanderbilt
University d/b/a Vanderbilt University Hospital (“Vanderbilt”) for cardiac evaluation. While
at Vanderbilt, David Slosky, M.D. placed two stents in her left coronary artery. Decedent
was released from care and allowed to return home, where she subsequently suffered another
cardiac event. Upon returning to Vanderbilt, Dr. Slosky placed additional stents. Decedent
passed away on August 28, 2007.

       Jessica R. Givens and Aubrey E. Givens, individually and as administrator of
Decedent’s estate, (collectively “Plaintiffs”) have filed three complaints against Vanderbilt
and Dr. Slosky (collectively “Defendants”) in their attempt to recover for Decedent’s injuries.
In each complaint, Plaintiffs alleged that Defendants were negligent in caring for Decedent
and that their negligence resulted in Decedent’s subsequent injuries and death.

       The first complaint (“Lawsuit 1”) was filed on September 11, 2007. During the
pendency of the action, the General Assembly enacted statutory changes to the Tennessee
Medical Malpractice Act (“TMMA”), setting forth new requirements for medical malpractice
actions filed on or after October 1, 2008. Tenn. Code Ann. §§ 29-26-121(a), -122. Plaintiffs
voluntarily dismissed Lawsuit 1 on June 5, 2009. Shortly thereafter, the General Assembly
amended the statutory changes to the TMMA, which were applicable to medical malpractice
actions filed on or after July 1, 2009. Tenn. Code Ann. §§ 29-26-121(a), -122.

       The statutory changes and amendments, which required the filing of pre-suit notice
60 days prior to the filing of a complaint and the filing of a certificate of good faith with a
complaint bringing forth an action that required expert testimony, were in effect when the
second complaint (“Lawsuit 2”) was filed on June 3, 2010. Plaintiffs attached a certificate
of good faith to the complaint but failed to provide the statutorily required 60-day pre-suit
notice. Plaintiffs provided Defendants with written notice on the day of filing.

       On September 24, 2010, Plaintiffs filed the third complaint (“Lawsuit 3”) with an
attached certificate of good faith and a statement exhibiting compliance with the statutory
notice requirements. Plaintiffs attempted to consolidate Lawsuit 2 with Lawsuit 3. The trial
court refused to consolidate and dismissed Lawsuit 3. Plaintiffs appealed. A panel of this
court affirmed the dismissal because “Lawsuit 3 was not filed within the statute of

                                              -2-
limitations.” Givens v. Vanderbilt Univ., No. M2011-00186-COA-R3-CV, 2011 WL
5145741, at *3 (Tenn. Ct. App. Oct. 28, 2011), perm. app. denied (Tenn. Feb. 21, 2012).
This court further explained that consolidation would not have cured the untimeliness of
Lawsuit 3 because the two suits would have remained separate and distinct even if
consolidated. Id.

       Upon remand, Defendants sought the dismissal of Lawsuit 2, alleging that Plaintiffs
had failed to comply with the notice requirements set out in section 29-26-121. The trial
court agreed and dismissed Lawsuit 2. This appeal concerns the dismissal of Lawsuit 2.


                                        II. ISSUES

       We consolidate and restate the issues Plaintiffs raised on appeal as follows:

       A. Whether the failure to comply with the notice requirements set forth in
       Tennessee Code Annotated section 29-26-121 mandates dismissal of the action
       in this case.

       B. Whether the trial court abused its discretion by failing to excuse
       compliance with the notice requirements set forth in Tennessee Code
       Annotated section 29-26-121.

Defendants also raised an issue for our consideration that we restate as follows:

       C. Whether Defendants are entitled to attorney fees on appeal.


                             III. STANDARD OF REVIEW

         In this action, Defendants properly filed a motion to dismiss. Myers v. AMISUB
(SFH), Inc., 382 S.W.3d 300, 307 (Tenn. 2012) (“The proper way for a defendant to
challenge a complaint’s compliance with Tennessee Code Annotated section 29-26-121 is
to file a Tennessee Rule of Civil Procedure 12.02 motion to dismiss.”). In Myers, the Court
further provided as follows:

       In the motion, the defendant should state how the plaintiff has failed to comply
       with the statutory requirements by referencing specific omissions in the
       complaint and/or by submitting affidavits or other proof. Once the defendant
       makes a properly supported motion under this rule, the burden shifts to the

                                             -3-
       plaintiff to show either that it complied with the statutes or that it had
       extraordinary cause for failing to do so. Based on the complaint and any other
       relevant evidence submitted by the parties, the trial court must determine
       whether the plaintiff has complied with the statutes. If the trial court
       determines that the plaintiff has not complied with the statutes, then the trial
       court may consider whether the plaintiff has demonstrated extraordinary cause
       for its noncompliance.

Id. The trial court’s grant of the motion to dismiss is subject to a de novo review with no
presumption of correctness because we are reviewing the trial court’s legal conclusion.
Blackburn v. Blackburn, 270 S.W.3d 42, 47 (Tenn. 2008); Union Carbide Corp. v.
Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993).

        “The question of whether [plaintiff] has demonstrated extraordinary cause that would
excuse compliance with the statutes is a mixed question of law and fact, and our review of
that determination is de novo with a presumption of correctness applying only to the trial
court’s findings of fact and not to the legal effect of those findings.” Myers, 382 S.W.3d at
307-08 (citing Starr v. Hill, 353 S.W.3d 478, 481-82 (Tenn. 2011)). This court reviews a
“trial court’s decision to excuse compliance under an abuse of discretion standard.” Id. at
308. “A trial court abuses its discretion only when it ‘applie[s] an incorrect legal standard
or reache[s] a decision which is against logic or reasoning that cause[s] an injustice to the
party complaining.’” Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001) (quoting State v.
Shirley, 6 S.W.3d 243, 247 (Tenn. 1999)). If a discretionary decision is within a range of
acceptable alternatives, we will not substitute our judgment for that of the trial court simply
because we may have chosen a different alternative. White v. Vanderbilt Univ., 21 S.W.3d
215, 223 (Tenn. Ct. App. 1999).

        This appeal also involves the interpretation of statutes. Statutory construction is a
question of law that is reviewed de novo without any presumption of correctness. In re
Estate of Tanner, 295 S.W.3d 610, 613 (Tenn. 2009). This court’s primary objective is to
carry out legislative intent without broadening or restricting the Act beyond its intended
scope. Houghton v. Aramark Educ. Res., Inc., 90 S.W.3d 676, 678 (Tenn. 2002). In
construing legislative enactments, we presume that every word in a statute has meaning and
purpose and should be given full effect if the obvious intention of the legislature is not
violated by so doing. In re C .K.G., 173 S.W.3d 714, 722 (Tenn. 2005). When a statute is
clear, we should apply the plain meaning without complicating the task. Eastman Chem. Co.
v. Johnson, 151 S.W.3d 503, 507 (Tenn. 2004).




                                              -4-
                                      IV. DISCUSSION

                                            A. & B.

      Plaintiffs assert that the trial court erred in dismissing Lawsuit 2 because Tennessee
Code Annotated section 29-26-121 does not provide for dismissal as a sanction for failure
to comply. They alternatively assert that “extraordinary cause exists that would excuse
compliance as to notice.” Defendants respond that the trial court did not err in dismissing
Lawsuit 2. They assert that dismissal of the complaint was a proper penalty for
noncompliance with section 29-26-121. They further contend that Plaintiffs failed to
demonstrate extraordinary cause to excuse their noncompliance.

       As to notice before the suit, the TMMA provides, in pertinent part,

       (a)(1) Any person, or that person’s authorized agent, asserting a potential claim
       for health care liability shall give written notice of the potential claim to each
       health care provider that will be a named defendant at least sixty (60) days
       before the filing of a complaint based upon health care liability in any court of
       this state.

                                              ***

       (3) The requirement of service of written notice prior to suit is deemed
       satisfied if, within the statutes of limitations and statutes of repose applicable
       to the provider, one of the following occurs, as established by the specified
       proof of service, which shall be filed with the complaint:

              (A) Personal delivery of the notice to the health care provider or
              an identified individual whose job function includes receptionist
              for deliveries to the provider or for arrival of the provider’s
              patients at the provider’s current practice location. Delivery
              must be established by an affidavit stating that the notice was
              personally delivered and the identity of the individual to whom
              the notice was delivered; or

                                              ***

       (b) If a complaint is filed in any court alleging a claim for health care liability,
       the pleadings shall state whether each party has complied with subsection (a)
       and shall provide the documentation specified in subdivision (a)(2). The court

                                               -5-
       may require additional evidence of compliance to determine if the provisions
       of this section have been met. The court has discretion to excuse compliance
       with this section only for extraordinary cause shown.

Tenn. Code Ann. § 29-26-121.

        In Myers, a case similarly involving a re-filed complaint, the Tennessee Supreme
Court ruled that the statutory requirements that a plaintiff give 60 days pre-suit notice and
file a certificate of good faith with the complaint are mandatory and not subject to substantial
compliance. 382 S.W.3d at 310. The Court held that the re-filed action commenced pursuant
to the saving statute was a new action governed by the statutory provisions in sections 29-26-
121 and 122. However, the Court also held that “the legislature did not expressly provide
for the consequence of dismissal with prejudice as it did in [] section 29-26-122.” Id. at 312.
Indeed, the Court refrained to address the “appropriate sanction” for failure to comply with
section 29-26-121 because plaintiff had also failed to comply with the certification
requirements, which mandated dismissal. Id.

       In Foster v. Chiles, No. E2012-01780-COA-R3-CV, 2013 WL 3306594, at *6 (Tenn.
Ct. App. June 27, 2013), a panel of this court considered the issue of sanctions in a case
involving slightly different circumstances. In Foster, the plaintiffs filed the proper pre-suit
notices before filing their initial complaint. 2013 WL 3306594, at *1. The plaintiffs
voluntarily dismissed their initial suit and then filed a second complaint without filing the
proper pre-suit notices or attaching copies of the prior notices to the second complaint. Id.
In declining to affirm the dismissal of the second complaint for failure to comply with section
29-26-121, this court stated,

       Although Myers found it unnecessary to explicitly address the consequence of
       noncompliance with section 121, the import of the Supreme Court’s analysis
       seems clear. If the legislature intended to require the draconian remedy of
       dismissal with prejudice for noncompliance with section 121, then it would
       have said so, just as it did with respect to section 122, which was enacted at the
       same time and which addresses the same general subject matter. We conclude
       that section 121 does not require a court to dismiss a complaint with prejudice
       for noncompliance with the notice requirement of that section.

       This conclusion is in keeping with the general principle that “Tennessee law
       strongly favors the resolution of all disputes on their merits.” Henley v. Cobb,
       916 S.W.2d 915, 916 (Tenn. 1996); see also Hinkle v. Kindred Hosp., No.
       M2010-02499-COA-R3-CV, 2012 WL 3799215 at *7, *15 (Tenn. Ct. App.
       M.S., filed Aug. 31, 2012) (declining to “conclude that any deviation from the

                                              -6-
       strict letter of Tenn. Code Ann. § 29-26-121, no matter how small, would
       compel the courts to dismiss any medical malpractice claim asserted, no matter
       how meritorious” and observing that “[t]he hospital received actual notice. It
       seems to us that the technical requirements in the statute are intended to
       provide just that: notice of the claim.”). The language of section 121(b)
       providing that “[t]he court may require additional evidence of compliance to
       determine if the provisions of this section have been met” also supports the
       conclusion that automatic dismissal with prejudice is not required when a
       plaintiff neglects to attach proof of service to his or her complaint. In such an
       instance, the statute contemplates a hearing so the court may consider
       “additional evidence of compliance” rather than outright dismissal. Under the
       circumstances presented here, where plaintiffs provided sufficient notice under
       the statute and inadvertently failed to include – with the second complaint –
       copies of the notice provided to the defendants, there is no reason why the
       court should not allow plaintiffs to rectify their oversight by filing the required
       proof late.

       We are mindful of the fact that section 121(b) provides that “the pleadings . .
       . shall provide the documentation specified in subdivision (a)(2).” (Emphasis
       added). We are also aware that the word “shall” in a statute often indicates a
       mandatory requirement, see Bellamy v. Cracker Barrel Old Country Store,
       Inc., 302 S.W.3d 278, 281 (Tenn. 2009), but this interpretation is not always
       required. The Supreme Court in Myers, noted that whether the word “shall”
       is interpreted to be mandatory or simply directory depends upon “whether the
       prescribed mode of action is of the essence of the thing to be accomplished.”
       Myers, 382 S.W.3d at 309. Here “the essence of the thing to be accomplished”
       is the giving of the notice, not the attaching of evidence of same to the
       complaint. Under these circumstances, we hold that the provision in section
       121(b) under discussion, is directory and not mandatory. Thus, the use of the
       word “shall” in section 121(b) is not inconsistent with our holding that
       dismissal is not required by the statute for noncompliance.

Foster, 2013 WL 3306594, at *6-7.

        We are mindful of the fact that this case presents a substantially different scenario
than the one presented in Foster. It is undisputed that Plaintiffs filed Lawsuit 1 prior to the
enactment of section 29-26-121 and that Plaintiffs did not comply with section 29-29-121
before filing Lawsuit 2. However, the analysis in Foster holds true to this case. If the
legislature had intended to require dismissal with prejudice as the appropriate sanction for
noncompliance with section 29-26-121, “it would have said so, just as it did with respect to

                                               -7-
section 122, which was enacted at the same time and which addresses the same general
subject matter.” Id. at *6; see also Myers, 382 S.W.3d at 310 (declining to address the issue
of the appropriate sanction for noncompliance with section 29-26-121). Under the
circumstances presented here, where Plaintiffs filed their initial suit prior to the enactment
of the statutory notice requirements and when Defendants had some notice of the potential
claim as a result of the initial lawsuit, we conclude that the trial court erred in dismissing
Lawsuit 2 for noncompliance with section 29-26-121.

        Having found that dismissal of the complaint was not warranted, we must also address
the question of whether the trial court abused its discretion by failing to excuse compliance,
thereby rendering Plaintiffs subject to sanctions, in some form, for their noncompliance.
Plaintiffs allege,

       Based upon the lack of case law during the time period wherein [Plaintiffs
       were] filing [the] complaint pursuant to the saving statute and the
       extraordinary efforts of Plaintiffs in attempting to comply with the statute
       should be deemed extraordinary cause and [Plaintiffs] should be excused from
       failure to strictly comply with same.

Plaintiffs’ attempts to comply with the pre-suit notice requirements were anything but
extraordinary. The pertinent provisions of the TMMA had been enacted for approximately
19 months by the time Lawsuit 2 was filed. Yet, Plaintiffs made no effort to afford
Defendants any pre-suit notice of Lawsuit 2. Myers, 382 S.W.3d at 310 (discussing the
importance of notice relating to the continuation of medical malpractice claims). With these
considerations in mind, we conclude that the trial court did not abuse its discretion by
refusing to excuse compliance with section 29-26-121.

       For the foregoing reasons, we vacate the dismissal of Plaintiffs’ claim and remand this
case for further proceedings to determine appropriate sanctions and to allow the claim to
proceed. In so holding, we acknowledge several cases Defendants cited in support of their
position to the contrary. These cases are factually distinguishable. Three of the cases
involved the failure to comply with the certification requirements as well as noncompliance
with the pre-suit notice requirements. Vaughn v. Mountain States Health Alliance, No.
E2012-01042-COA-R3-CV, 2013 WL 817032 (Tenn. Ct. App. March 5, 2013); Bullock v.
Univ. Health Sys., Inc., No. E2012-00074-COA-R3-CV, 2012 WL 5907495 (Tenn. Ct. App.
Nov. 27, 2012); Cude v. Herren, No. W2010-01425-COA-R3-CV, 2011 WL 4436128 (Tenn.
Ct. App. Sept. 26, 2011). Four of the cases related to the dismissal of the initial complaint,
not a complaint that had been filed pursuant to the saving statute. Thurmond v. Mid-
Cumberland Infectious Diseases Consultants, PLC, No. M2012-02270-COA-R3-CV, 2013
WL 1798960 (Tenn. Ct. App. Apr. 25, 2013), perm. app. granted (Tenn. Aug. 13, 2013);

                                             -8-
Vaughn, 2013 WL 817032; DePue v. Schroeder, No. E2010-00504-COA-R3-CV, 2011 WL
538865 (Tenn. Ct. App. Feb. 15, 2011), perm. app. denied (Tenn. Aug. 31, 2011); Long v.
Hillcrest Healthcare-West, No. E2009-01405-COA-R3-CV, 2010 WL 1526065 (Tenn. Ct.
App. Apr. 16, 2010), perm. app. granted (Tenn. Feb. 18, 2011). Lastly, Childs v. UT
Medical Group Incorporated, 398 S.W.3d 163 (Tenn. Ct. App. 2012) did not address the
issue presented in this case, namely whether the failure to comply with the notice
requirements set forth in section 29-26-121 mandates dismissal of the action.

                                             C.

       Defendants requests attorney fees on appeal. Tennessee Code Annotated section 27-
1-122 provides for an award of sanctions in the form of attorney fees when an appeal is
determined to be frivolous. To find an appeal frivolous, the appeal must be wholly without
merit and lacking in justiciable issues. See Davis v. Gulf Ins. Group, 546 S.W.2d 583, 586
(Tenn. 1977); Indus. Dev. Bd. of Tullahoma v. Hancock, 901 S.W.2d 382, 385 (Tenn. Ct.
App. 1995). Having concluded that the trial court erred in dismissing the complaint, we
respectfully deny the request to award attorney fees on appeal in this case. Indeed, this
appeal is not wholly without merit and lacking in justiciable issues.

                                    V. CONCLUSION

       The judgment of the trial court is vacated, and the case is remanded for further
proceedings. Costs of the appeal are taxed equally to the appellees, the Vanderbilt University
d/b/a Vanderbilt University Hospital and David Slosky, M.D.


                                           ______________________________________
                                           JOHN W. McCLARTY, JUDGE




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