                                                                                         12/03/2019
               IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                        October 16, 2019 Session

                 ANGELA DOTSON V. STATE OF TENNESSEE

                  Appeal from the Tennessee Claims Commission
                No. T20171857     William E. Young, Commissioner


                            No. E2019-00325-COA-R9-CV


Plaintiff filed a complaint asserting a health care liability claim against the state and
attached a certificate of good faith. The Tennessee Claims Commission found that the
certificate of good faith failed to satisfy the requirements of Tenn. Code Ann. § 29-26-
122 because it was not specific as to the state health care provider. Despite this finding,
the court concluded that the statute was satisfied because the complaint contained the
certificate of good faith language and identified the state health care provider. The state
then filed this interlocutory appeal. We reverse.

   Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Claims Commission
                                     Reversed

ANDY D. BENNETT, J., delivered the opinion of the Court, in which JOHN W. MCCLARTY
and THOMAS R. FRIERSON, II, JJ., joined.

Herbert H. Slatery, III, Attorney General and Reporter, Andrée Blumstein, Solicitor
General, and Heather C. Ross, Senior Assistant Attorney General, for the appellant, State
of Tennessee.

Michael Emory Large, Bristol, Tennessee, for the appellee, Angela Dotson.

                                       OPINION

                      I. FACTUAL AND PROCEDURAL BACKGROUND

       Angela Dotson gave birth to a baby on June 1, 2016. Tragically, the baby died the
following day from complications during the delivery. On May 26, 2017, Ms. Dotson
filed a claim for damages against the state of Tennessee in the Division of Claims
Administration. She based her claim against the state on the actions of one of her treating
physicians during the delivery, Dr. Kiana Brooks, a resident physician and state
employee.

        On August 25, 2017, the Division of Claims Administration notified Ms. Dotson
that it had not been able to act on her claim within ninety days so her claim was being
transferred to the Claims Commission. The clerk of the Claims Commission informed
Ms. Dotson on September 6, 2017, that she must file a complaint with the Claims
Commission “within thirty days of transfer of any claim to the Commission.”1 Ms.
Dotson filed her complaint with a certificate of good faith on October 6, 2017, alleging
that Dr. Brooks’s negligence caused the death of her baby. She also alleged the
negligence of other non-state employee health care providers whom she had sued in a
separate lawsuit in Washington County Law Court: Dr. Selman Welt and a private
hospital. Throughout her complaint, Ms. Dotson refers to Dr. Welt and the private
hospital as “The Defendants.”

       The certificate of good faith Ms. Dotson filed with her complaint in the Claims
Commission contains the caption of the lawsuit she filed in the Washington County court.
Ms. Dotson identified Dr. Welt and the private hospital in the certificate of good faith,
but she made no mention of Dr. Brooks. In addition to filing a certificate of good faith,
Ms. Dotson stated in the complaint as follows:

       22. Plaintiff’s counsel has also consulted with one (1) or more experts who
       have provided a signed, written statement confirming that upon information
       and belief they: (a) Are competent under Section 29-26-115 to express
       opinion(s) in this case; and (b) Believe, based upon the information
       available from the medical records concerning the care and treatment of the
       Plaintiff for the incident(s) at issue, that there is a good faith basis to
       maintain the action consistent with the requirements of Section 29-26-115.

       23. Plaintiff’s counsel has been found in violation of T.C.A. Section 29-26-
       122 zero (0) prior times.

       24. Out of an abundance of caution, a signed and completed Certificate of
       Good Faith that mirrors the information contained in paragraphs 22-23
       above is attached as Exhibit 3.

      On November 6, 2017, the state filed a motion to dismiss the complaint pursuant
to Tenn. R. Civ. P. 12.02(6). The state argued that Ms. Dotson’s claim should be
dismissed because the certificate of good faith failed to satisfy the requirements of Tenn.
Code Ann. § 29-26-122 (requirements discussed below) because it did not specifically

1
  The record contains no evidence showing the specific date when Ms. Dotson’s claim was transferred to
the Claims Commission.
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identify Dr. Brooks. The state further argued that the claim should be dismissed as time-
barred because Ms. Dotson failed to file the complaint and certificate of good faith within
one year and 120 days.2 Specifically, the state asserted that, to fall within the one-year
statute of limitations, Ms. Dotson needed to file her complaint by June 2, 2017. Because
she complied with the pre-suit notice requirement in Tenn. Code Ann. § 29-26-121, the
state submitted, Ms. Dotson was entitled to the 120-day extension, which required her to
file her complaint by October 2, 2017 rather than October 6.

        The Claims Commission entered an order on November 26, 2018, denying the
state’s motion. The Commission found that the certificate of good faith Ms. Dotson had
filed with the complaint failed to satisfy the requirements of Tenn. Code Ann. § 29-26-
122 because it contained no information that could reasonably be interpreted or construed
as relating to Dr. Brooks. Despite this finding, however, the Commission determined that
Ms. Dotson satisfied the requirements of the statute because paragraph 22 of the
complaint tracks the language of the statute “virtually verbatim” and because Ms. Dotson
made specific reference to Dr. Brooks within the body of the complaint.

       Regarding the statute of limitations issue, the Claims Commission concluded that
the procedure for initiating a claim in the Claims Commission under Tenn. Code Ann.
§ 9-8-4023 governed this case rather than the statutorily mandated requirements contained
in the Health Care Liability Act, Tenn. Code Ann. §§ 29-26-101 to -122. The Claims
Commission further concluded that a claim “reaches the jurisdiction of the Commission
without the filing of a formal complaint”; all that was required to commence the action
was written notice of the claim. Thus, the Claims Commission found that the claim was
timely filed because Ms. Dotson commenced the action when she filed her notice of
claim for damages in the Division of Claims Administration on May 26, 2017, rather than
when she filed her complaint on October 6, 2017.


2
  Tennessee Code Annotated section 28-3-104(a) provides that personal injury claims must be
commenced “within one (1) year after the cause of action accrued.” In health care liability actions, this
one-year statute of limitations is extended “for a period of one hundred twenty (120) days from the date of
expiration of the statute of limitations” if a plaintiff gives pre-suit notice. Tenn. Code Ann. § 29-26-
121(c).
3
    Tennessee Code Annotated section 9-8-402 provides, in pertinent part, as follows:

          (a)(1) The claimant must give written notice of the claimant’s claim to the division of
          claims and risk management as a condition precedent to recovery . . . .
          ....
          (b) The claim is barred unless the notice is given within the time provided by statutes of
          limitations applicable by the courts for similar occurrences from which the claim arises; .
          . . The filing of the notice by the claimant tolls all statutes of limitations as to other
          persons potentially liable to the claimant due to the occurrence from which the claim
          before the commission arises.
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       The Claims Commission granted the state permission to seek an interlocutory
appeal to this Court, which we granted on May 3, 2019. On appeal, the state raises the
following issues: whether the Claims Commission erred in concluding that Ms. Dotson
complied with the certificate of good faith requirement provided in Tenn. Code Ann.
§ 29-26-122 and whether the Claims Commission erred in concluding that the claim was
not time-barred.

                                 II. STANDARD OF REVIEW

        The appropriate method for challenging whether a plaintiff complied with Tenn.
Code Ann. § 29-26-122 is a motion to dismiss. Myers v. AMISUB (SFH), Inc., 382
S.W.3d 300, 307 (Tenn. 2012). Motions to dismiss filed pursuant to Tenn. R. Civ. P.
12.02(6) challenge “only the legal sufficiency of the complaint, not the strength of the
plaintiff’s proof or evidence.” Webb v. Nashville Area Habitat for Humanity, Inc., 346
S.W.3d 422, 426 (Tenn. 2011). A defendant filing “a motion to dismiss ‘admits the truth
of all of the relevant and material allegations contained in the complaint, but . . . asserts
that the allegations fail to establish a cause of action.’” Id. (quoting Brown v. Tenn. Title
Loans, Inc., 328 S.W.3d 850, 854 (Tenn. 2010)). A court resolves a Rule 12.02(6)
motion “by examining the pleadings alone.” Ellithorpe v. Weismark, 479 S.W.3d 818,
824 (Tenn. 2015).

        When determining whether a complaint should be dismissed for failure to state a
claim, the court “‘must construe the complaint liberally, presuming all factual allegations
to be true and giving the plaintiff the benefit of all reasonable inferences.’” Tigg v.
Pirelli Tire Corp., 232 S.W.3d 28, 31-32 (Tenn. 2007) (quoting Trau-Med of Am., Inc. v.
Allstate Ins. Co., 71 S.W.3d 691, 696 (Tenn. 2002)). The court should grant a motion to
dismiss if it appears that the plaintiff cannot prove any set of facts in support of the claim
entitling him or her to relief. Webb, 346 S.W.3d at 426. A trial court’s decision to grant
or deny a motion to dismiss involves a question of law which we review de novo with no
presumption of correctness. Myers, 382 S.W.3d at 307.

                                       III. ANALYSIS

                                 Certificate of Good Faith

       The first issue before us is whether the Claims Commission erred in concluding
that Ms. Dotson complied with the certificate of good faith requirement in Tenn. Code
Ann. § 29-26-122. To resolve this issue, we must construe Tenn. Code Ann. § 29-26-
122(a). When construing a statute, we do so in accordance with well-settled principles
that our Supreme Court has articulated as follows:

       The leading rule governing our construction of any statute is to ascertain
       and give effect to the legislature’s intent. To that end, we start with an

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      examination of the statute’s language, presuming that the legislature
      intended that each word be given full effect. When the import of a statute
      is unambiguous, we discern legislative intent “from the natural and
      ordinary meaning of the statutory language within the context of the entire
      statute without any forced or subtle construction that would extend or limit
      the statute’s meaning.”

Myers, 382 S.W.3d at 308 (citations omitted). Statutory construction presents a question
of law that we review de novo with no presumption of correctness. Groves v. Colburn,
No. M2012-01834-COA-R3-CV, 2013 WL 3964758, at *2 (Tenn. Ct. App. July 30,
2013) (citing Estate of French v. Stratford House, 333 S.W.3d 546, 554 (Tenn. 2011)).

      Tennessee Code Annotated section 29-26-122(a) provides, in pertinent part, as
follows:

      In any health care liability action in which expert testimony is required by §
      29-26-115, the plaintiff or plaintiff’s counsel shall file a certificate of good
      faith with the complaint. If the certificate is not filed with the complaint,
      the complaint shall be dismissed, as provided in subsection (c), absent a
      showing that the failure was due to the failure of the provider to timely
      provide copies of the claimant’s records requested as provided in § 29-26-
      121 or demonstrated extraordinary cause. The certificate of good faith shall
      state that:
      (1) The plaintiff or plaintiff’s counsel has consulted with one (1) or more
      experts who have provided a signed written statement confirming that upon
      information and belief they:
          (A) Are competent under § 29-26-115 to express an opinion or opinions
          in the case; and
          (B) Believe based on the information available from the medical
          records concerning the care and treatment of the plaintiff for the
          incident or incidents at issue, that there is a good faith basis to maintain
          the action consistent with the requirements of § 29-26-115[.]

Our Supreme Court has previously held that “the filing of a certificate of good faith with
a complaint is mandatory, and strict compliance is required.” Groves, 2013 WL
3964758, at *3 (citing Myers, 382 S.W.3d at 308); see also Sirbaugh v. Vanderbilt Univ.,
469 S.W.3d 46, 51 (Tenn. Ct. App. 2014). The certificate of good faith must certify that
an expert has reviewed the alleged facts and claims specific to a particular defendant and
that the expert believes there is a good faith basis for maintaining a claim against that
defendant. See Sirbaugh, 469 S.W.3d at 53 (holding that the plaintiff violated Tenn.
Code Ann. § 29-26-122 when she amended her complaint to add defendants but failed to
file a second certificate of good faith with her amended complaint certifying that an
expert had reviewed the facts and claims specific to the new defendants and their belief

                                           -5-
that there was a good faith basis for maintaining a claim against them); see also Groves,
2013 WL 3964758, at *3 (affirming dismissal of plaintiff’s claim against a medical
provider added in plaintiff’s amended complaint because plaintiff failed to file a new
certificate of good faith with the amended complaint certifying that an expert reviewed
the facts and believed there was a good faith basis to maintain a cause of action against
the new defendant).

       In the present case, Ms. Dotson filed a certificate of good faith with her complaint,
but it was captioned under the lawsuit she filed in the Washington County court and
identifying only Dr. Welt and the private hospital as defendants. Thus, as the Claims
Commission found, the certificate of good faith failed to satisfy Tenn. Code Ann. § 29-
26-122 because it did not certify that an expert had reviewed the alleged facts and claims
specific to Dr. Brooks and believed there was a good faith basis for maintaining a cause
of action against her. Despite this finding, the Claims Commission concluded that Ms.
Dotson complied with the statute because “[p]aragraph 22 of the complaint tracks the
language of Tenn. Code Ann. §§ 29-26-122(a)(1)(A) and (B) virtually verbatim.” The
Commission explained that it based its conclusion on the following:

              While the statute may or may not suggest or imply the use of a
       totally separate “certificate” document, in the view of this Tribunal, the
       statute does not specifically contain a literal requirement mandating that a
       separate document be utilized. In the opinion of this Tribunal, while the
       use of a separate document may be a preferred method, neither the intent
       nor the literal substance of the statute is violated by the use of the required
       language within the body of the complaint itself, when, as here, it is
       accompanied by the signature of counsel on the complaint document itself.

        On appeal, Ms. Dotson asserts that the Claims Commission properly interpreted
the statute because Tenn. Code Ann. § 29-26-122 does not require the certificate of good
faith to be a separate document. Thus, she argues, the statute is satisfied by merely
including the certificate of good faith language in the complaint. For the reasons
discussed below, we respectfully disagree.

        We begin with the language of the statute itself. Tennessee Code Annotated
section 29-26-122(a) expressly states that “the plaintiff or plaintiff’s counsel shall file a
certificate of good faith with the complaint.” (Emphasis added). “With” is defined as
“[a] word denoting a relation of proximity, contiguity, or association. Sometimes
equivalent to the words, ‘in addition to,’ but not synonymous with ‘including.” BLACK’S
LAW DICTIONARY (5th ed. 1979) (citation omitted). Thus, the natural and ordinary
meaning of the statute’s words clearly and unambiguously requires that the certificate of
good faith be a document that is filed in addition to and contiguous to the complaint. In
other words, when a plaintiff files a complaint in a health care liability action in which
expert testimony is required, Tenn. Code Ann. § 29-26-122(a) requires that a certificate

                                            -6-
of good faith be attached to the complaint as a separate document. Our conclusion that
the certificate of good faith is a separate document attached to the complaint is buttressed
by subsection (d)(5), which provides that “[t]he administrative office of the courts shall
develop a certificate of good faith form to effectuate the purposes of this section.” Tenn.
Code Ann. § 29-26-122(d)(5). Because strict compliance is required with respect to
Tenn. Code Ann. § 29-26-122(a), Groves, 2013 WL 3964758, at *3, inclusion of the
certificate of good faith language within the body of the complaint is insufficient to
satisfy the certificate of good faith requirement.

        When the Claims Commission determined that the certificate of good faith Ms.
Dotson attached to her complaint failed to satisfy the requirements of Tenn. Code Ann.
§ 29-26-122(a) with regard to the claim against Dr. Brooks, dismissal of the claims
against the state was mandated. See Sirbaugh, 469 S.W.3d at 53 (holding that dismissal
of claims against two healthcare providers was mandated because the plaintiff failed to
comply with Tenn. Code Ann. § 29-26-122). We agree with the Claims Commission that
the certificate of good faith did not meet the statutory requirements. Because the
certificate must be a separate document from the complaint, we conclude that the Claims
Commission erred in denying the state’s motion to dismiss Ms. Dotson’s complaint
pursuant to Tenn. R. Civ. P. 12.02(6).

       Our decision regarding the above issue pretermits consideration of the other issue
presented.

                                    IV. CONCLUSION

      For the foregoing reasons, the judgment of the Claims Commission is reversed.
The matter is remanded to the Claims Commission for entry of an order dismissing the
complaint. Costs of this appeal are assessed against the appellee, Angela Dotson, for
which execution may issue if necessary.


                                                  ________________________________
                                                  ANDY D. BENNETT, JUDGE




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