               IN THE COURT OF APPEALS OF TENNESSEE
                          AT KNOXVILLE
                        Submitted on Briefs November 1, 2016

 ROBERTA PIPER, FOR HERSELF AS SPOUSE AND WIDOW OF MERLE PIPER,
      DECEASED v. CUMBERLAND MEDICAL CENTER ET AL.

               Appeal from the Circuit Court for Cumberland County
                  No. CC1-2015-CV-6044       Amy Hollars, Judge



             No. E2016-00532-COA-R3-CV-FILED-JANUARY 20, 2017



The plaintiff filed this health care liability action on behalf of herself and her deceased
husband, alleging that his death was caused by the negligent care he received from the
defendant hospital and physicians. The defendants moved to dismiss the plaintiff‟s
claims because she failed to comply with the requirements of Tennessee Code Annotated
§ 29-26-121(a)(2)(D) and (E). The trial court granted the motions and dismissed the
plaintiff‟s claims. The plaintiff has appealed. Discerning no reversible error, we affirm
the trial court‟s judgment of dismissal.

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

THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which ANDY D.
BENNETT, J., and J. STEVEN STAFFORD, P.J., W.S., joined.

Ronald Aronds, Ooltewah, Tennessee, for the appellant, Roberta Piper.

F. Michael Fitzpatrick and Rachel Park Hurt, Knoxville, Tennessee, for the appellee,
Cumberland Medical Center.

James G. O‟Kane, Knoxville, Tennessee, for the appellee, Ayca Kabasakal, M.D.

David E. Waite and Richard A. McCall, Knoxville, Tennessee, for the appellee, Merhaf
K. Zeino, M.D.
                                              OPINION

                              I. Factual and Procedural Background

       Roberta Piper, as spouse and widow of Merle Piper (“Decedent”), filed a health
care liability action on October 13, 2015, in the Circuit Court for Cumberland County.
Ms. Piper asserted in her complaint that the Decedent was treated by defendants Merhaf
K. Zeino, M.D., and Ayca Kabasakal, M.D., at the Cumberland Medical Center (“CMC”)
from October 18, 2014, until his death on October 28, 2014.1 According to the
complaint, Decedent sought treatment at CMC for fatigue and underwent a urinalysis.
Decedent was diagnosed with stage four kidney failure. Ms. Piper alleged in the
complaint that on October 28, 2014, Dr. Kabasakal remarked to Ms. Piper that “it was a
shame they couldn‟t treat her husband due to his religious beliefs.” Ms. Piper
subsequently discovered that Decedent‟s chart incorrectly listed his religious affiliation as
Jehovah‟s Witness. Although Ms. Piper corrected this misinformation and gave
permission for treatment, Decedent passed away that same night. Ms. Piper also asserted
in the complaint that the defendant physicians were negligent because they incorrectly
assumed that Decedent‟s religious beliefs guaranteed that he would reject available life-
saving treatment and because they failed to ask Decedent or Ms. Piper for permission to
administer such treatment.

       According to the complaint, Ms. Piper purportedly complied with the notice
provisions contained in Tennessee Code Annotated § 29-26-121 by delivering the
required notices to Defendants at least sixty days before the filing of the complaint. Ms.
Piper attached copies of undated postal receipts addressed to each defendant. However,
the record demonstrates that Ms. Piper did not attach to the complaint a certificate of
mailing from the United States Postal Service, an affidavit regarding her mailing of the
notices, or copies of the notices. See Tenn. Code Ann. § 29-26-121(a)(3), (4) (Supp.
2016).2

       Dr. Kabasakal filed a motion to dismiss on November 30, 2015, asserting that Ms.
Piper had failed to comply with the mandatory pre-suit notice requirements contained in
Tennessee Code Annotated § 29-26-121. Dr. Kabasakal asserted that Ms. Piper failed to
provide the required HIPAA-compliant medical authorization and failed to provide a list
of other health care providers receiving notice. Dr. Kabasakal also complained that Ms.
Piper failed to demonstrate that the notice was timely sent because the letter and the

1
  Dr. Kabasakal, Dr. Zeino, and CMC are all named defendants in this action and shall hereafter be
referred to collectively as “Defendants.”
2
  Inasmuch as no party has raised an issue with regard to these deficiencies, we decline to further address
these additional omissions on appeal.
                                                    2
postal receipts attached to the complaint were undated. In support of the motion, Dr.
Kabasakal attached an affidavit, wherein she stated that the only document she received
from Ms. Piper or her counsel prior to the filing of the complaint was the undated notice
letter. Dr. Kabasakal attached the undated notice letter she had received to evince that
plaintiff failed to identify other health care providers.

       CMC and Dr. Zeino filed similar motions to dismiss on December 2, 2015, and
December 3, 2015, respectively. The trial court conducted a hearing regarding the
pending motions on January 29, 2016. Following the hearing, the court entered an order
granting the motions to dismiss on February 12, 2016. In this order, the court found that
Ms. Piper had failed to comply with Tennessee Code Annotated § 29-26-121(a)(2)(D)
and (E) and that such failure was fatal to her claims. Ms. Piper timely appealed.

                                    II. Issue Presented

        Ms. Piper presents the following issue for our review, which we have restated
slightly:

              Whether the trial court erred by dismissing Ms. Piper‟s health care
      liability action for failure to comply with the notice requirements contained
      in Tennessee Code Annotated § 29-26-121.

                                 III. Standard of Review

       Our Supreme Court has elucidated the following regarding the standard of review
applicable to a motion to dismiss a health care liability action based upon the plaintiff‟s
noncompliance with Tennessee Code Annotated § 29-26-121:

             The proper way for a defendant to challenge a complaint‟s
      compliance with Tennessee Code Annotated section 29-26-121 and
      Tennessee Code Annotated section 29-26-122 is to file a Tennessee Rule of
      Procedure 12.02 motion to dismiss. 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 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
                                             3
plaintiff has demonstrated extraordinary cause for its noncompliance. If the
defendant prevails and the complaint is dismissed, the plaintiff is entitled to
an appeal of right under Tennessee Rule of Appellate Procedure 3 using the
standards of review in Tennessee Rule of Appellate Procedure 13. If the
plaintiff prevails, the defendant may pursue an interlocutory appeal under
either Tennessee Rule of Appellate Procedure 9 or 10 using the same
standards.

        Because the trial court‟s denial of the Defendants‟ motion involves a
question of law, our review is de novo with no presumption of correctness.
Graham v. Caples, 325 S.W.3d 578, 581 (Tenn. 2010). The question of
whether [the 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. Starr v. Hill, 353 S.W.3d 478, 481-82 (Tenn.
2011). We review the trial court‟s decision to excuse compliance under an
abuse of discretion standard. “A court abuses its discretion when it applies
an incorrect legal standard or its decision is illogical or unreasonable, is
based on a clearly erroneous assessment of the evidence, or utilizes
reasoning that results in an injustice to the complaining party.” Wilson v.
State, 367 S.W.3d 229, 235 (Tenn. 2012) (citing Wright ex rel. Wright v.
Wright, 337 S.W.3d 166, 176 (Tenn. 2011)). We examine the legal
sufficiency of the complaint and do not consider the strength of the
plaintiff‟s evidence; thus, all factual allegations in the complaint are
accepted as true and construed in flavor of the plaintiff. Lind v. Beaman
Dodge, Inc., 356 S.W.3d 889, 894 (Tenn. 2011).

***

The leading rule governing our construction of any statute is to ascertain
and give effect to the legislature‟s intent. Walker v. Sunrise Pontiac-GMC
Truck, Inc., 249 S.W.3d 301, 309 (Tenn. 2008). To that end, we start with
an examination of the statute‟s language, Curtis v. G.E. Capital Modular
Space, 155 S.W.3d 877, 881 (Tenn. 2005), presuming that the legislature
intended that each word be given full effect. Lanier v. Rains, 229 S.W.3d
656, 661 (Tenn. 2007). 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.” State v. Flemming, 19 S.W.3d 195, 197 (Tenn. 2000); see also
                                      4
      In re Adoption of A.M.H., 215 S.W.3d 793, 808 (Tenn. 2007) (“Where the
      statutory language is not ambiguous . . . the plain and ordinary meaning of
      the statute must be given effect.”) (citing Calaway ex rel. Calaway v.
      Schucker, 193 S.W.3d 509, 516 (Tenn. 2005)). The construction of a
      statute is also a question of law which we review de novo without any
      presumption of correctness. Lind, 356 S.W.3d at 895.

Myers v. AMISUB (SFH), Inc., 382 S.W.3d 300, 307-08 (Tenn. 2012).

        In Arden v. Kozawa, 466 S.W.3d 758, 763 (Tenn. 2015), our Supreme Court
clarified:

              The content and affidavit requirements of Tennessee Code
      Annotated sections 29-26-121(a)(2), (a)(3), and (a)(4) are not mandatory,
      but directory, and can be achieved through substantial compliance. See
      Thurmond v. Mid-Cumberland Infectious Disease Consultants, PLC, 433
      S.W.3d 512, 520 (Tenn. 2014) (allowing substantial compliance with the
      affidavit requirement under Tennessee Code Annotated sections 29-26-
      121(a)(3)(B) and (a)(4)); Stevens ex rel. Stevens v. Hickman Comm. Health
      Care Servs., Inc., 418 S.W.3d 547, 555 (Tenn. 2013) (allowing substantial
      compliance with the HIPAA form requirement under Tennessee Code
      Annotated section 29-26-121(a)(2)(E)). “[U]nless strict compliance with a
      notice content requirement „is essential to avoid prejudicing an opposing
      litigant,‟ substantial compliance with a content requirement will suffice.”
      Thurmond, 433 S.W.3d at 520 (quoting Stevens, 418 S.W.3d at 555).

The High Court has also explained that to determine whether a plaintiff has substantially
complied with a statutory requirement, “a reviewing court should consider the extent and
significance of the plaintiff‟s errors and omissions and whether the defendant was
prejudiced by the plaintiff‟s noncompliance.” Stevens ex rel. Stevens v. Hickman Comm.
Health Care Servs., Inc., 418 S.W.3d 547, 556 (Tenn. 2013).

          III. Notice Requirements of Tennessee Code Annotated § 29-26-121

      Tennessee Code Annotated § 29-26-121 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.
                                             5
       (2) The notice shall include:

              (A) The full name and date of birth of the patient whose
              treatment is at issue;

              (B) The name and address of the claimant authorizing the
              notice and the relationship to the patient, if the notice is not
              sent by the patient;

              (C) The name and address of the attorney sending the notice,
              if applicable;

              (D) A list of the name and address of all providers being sent
              a notice; and

              (E) A HIPAA compliant medical authorization permitting the
              provider receiving the notice to obtain complete medical
              records from each other provider being sent a notice.

       ***

       (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 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.

        In this case, the trial court determined that Ms. Piper had failed to comply with
Tennessee Code Annotated § 29-26-121(a)(2)(D) and (E) and that such failure was fatal
to her claims. In her appellate brief, Ms. Piper concedes that she did not list all medical
providers on her pre-suit notice letters and did not include with the notice letters a
“HIPAA compliant medical authorization permitting the provider receiving the notice to
obtain complete medical records from each other provider being sent a notice.” See
Tenn. Code Ann. § 29-26-121(a)(2)(D) and (E). Ms. Piper argues, however, that (1) her
provision of a medical release to the defendant physicians a few months before the pre-
suit notice letters were sent should constitute substantial compliance and (2) the failure to
attach the required medical authorization to the pre-suit notice letters or to list the names
of all medical providers on the notice letters should be considered “excusable neglect.”
                                             6
          As our Supreme Court has explained:

          [T]the requirements of Tenn. Code Ann. § 29-26-121(a)(2)(D) [list of
          names and addresses of all providers being sent notice] and Tenn. Code
          Ann. § 29-26-121(a)(2)(E) [HIPAA-compliant medical authorization] serve
          an investigatory function, equipping defendants with the actual means to
          evaluate the substantive merits of a plaintiff‟s claim by enabling early
          discovery of potential co-defendants and early access to a plaintiff‟s
          medical records.

Stevens, 418 S.W.3d at 554. Therefore, Ms. Piper‟s failure to provide to Defendants (1) a
list of other medical providers being sent notice and (2) a HIPAA-compliant medical
authorization would prohibit Defendants from obtaining medical records from other co-
defendants and utilizing their own records to mount a defense. Id.; see also Roberts v.
Prill, No. E2013-02202-COA-R3-CV, 2014 WL 2921930, at *5 (Tenn. Ct. App. June 26,
2014) (“Defendants were not legally authorized to use the pertinent medical records to
mount a defense, despite the fact that the records may have already been in their
possession.”) (emphasis in original). We conclude that Ms. Piper‟s errors and omissions
in this matter were significant and that the Defendants were prejudiced thereby.

       Ms. Piper asserts that she provided Dr. Kabasakal and Dr. Zeino with a HIPAA-
compliant medical authorization prior to the transmittal of the pre-suit notice letters.3 The
record contains a copy of these disclosure authorizations, bearing a date of March 1,
2015, demonstrating that they were not included with the pre-suit notices as required by
the statute. Assuming, arguendo, that mailing a medical authorization to a medical
defendant some months prior to the actual dispatch of a pre-suit notice letter could
constitute substantial compliance with Tennessee Code Annotated § 29-26-121(a)(2)(E),
we determine that the authorizations sent by Ms. Piper were nonetheless noncompliant.
The disclosure authorizations signed by Ms. Piper allowed disclosure of Decedent‟s
protected health information only to Ms. Piper‟s counsel. The precedent on this issue is
clear that such a limited authorization does not satisfy the requirements of the statute
because it does not allow the health care providers to obtain medical records from one
another and does not allow the health care providers to use the medical records in their
own possession to prepare a defense. See Stevens, 418 S.W.3d at 554; Roberts, 2014 WL
2921930, at *5. Furthermore, Defendants were also provided no means of learning the
identity of any potential co-defendants. We determine this argument to be unavailing.

      Ms. Piper also argues that her noncompliance with the statute should be
considered “excusable neglect” because the attorney who prepared the notices was
3
    The record is devoid of a medical disclosure authorization directed to CMC.
                                                      7
inexperienced and because allegedly the actions of the defendants resulted in Decedent‟s
death. In support of her argument, Ms. Piper relies upon Tennessee Rule of Civil
Procedure 60. We note, however, that no motion seeking Rule 60 relief was ever filed
with the trial court. Furthermore, at the hearing conducted on January 29, 2016,
regarding the Defendants‟ motions to dismiss, there was no discussion by Ms. Piper‟s
counsel of Rule 60 or any alleged excusable neglect. We also note that Tennessee Code
Annotated § 29-26-121(b) provides trial courts with discretion to excuse compliance only
for “extraordinary cause shown” and makes no mention of excusable neglect. Despite
this provision in the statute, Ms. Piper raised no issue with regard to extraordinary cause
at the trial court level.4 We therefore conclude that this issue has been waived. See
Simpson v. Frontier Cmty. Credit Union, 810 S.W.2d 147, 153 (Tenn. 1991) (“[T]his
issue was not raised in the trial court, and issues not raised in the trial court cannot be
raised for the first time on appeal.”).

                                          IV. Conclusion

       For the foregoing reasons, we affirm the trial court‟s dismissal of Ms. Piper‟s
health care liability claims against all Defendants for failure to substantially comply with
the requirements of Tennessee Code Annotated § 29-26-121(a)(2)(D) and (E). Costs on
appeal are taxed to the appellant, Roberta Piper. We remand this case to the trial court
for collection of costs assessed below.




                                                       _________________________________
                                                       THOMAS R. FRIERSON, II, JUDGE




4
  A patient‟s death has specifically been found not to constitute extraordinary cause, see Stevens, 418
S.W.3d at 559, as has an attorney‟s oversight, see Hawkins v. Martin, No. W2013-02102-COA-R3-CV,
2014 WL 2854256, at *9 (Tenn. Ct. App. June 23, 2014), even when the attorney was faced with
somewhat stressful conditions.

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