                                                                                          04/30/2020
                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                         Assigned on Briefs January 22, 2020

             DANIEL ERIC COBBLE v. ERLANGER HOSPITAL

                 Appeal from the Circuit Court for Hamilton County
                        No. 18C899 Kyle E. Hedrick, Judge
                     ___________________________________

                           No. E2019-00417-COA-R3-CV
                       ___________________________________


This pro se appellant appeals the trial court’s dismissal of his lawsuit. We affirm.

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

JOHN W. MCCLARTY, J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and RICHARD H. DINKINS, J., joined.

Daniel E. Cobble, Americus, Georgia, pro se.

Joshua A. Powers and Alexandra E. Weiss, Chattanooga, Tennessee, for the appellee,
Chattanooga-Hamilton County Hospital Authority dba Erlanger Health System.


                                        OPINION

                                   I. BACKGROUND

       This is a healthcare liability action against Erlanger Hospital (“Erlanger”). Daniel
Eric Cobble (“Plaintiff”) asserts that when he was five years old, he contracted equine
encephalitis and was taken to Erlanger. While being treated at Erlanger, Plaintiff asserts
that he suffered from a high-grade fever that lasted for five days. According to Plaintiff,
because Erlanger failed to properly treat his fever, he was left with mental and physical
injuries which required that he reside at mental health institutions between the ages of
seven and eighteen.            Plaintiff states that upon receiving a quantitative
electroencephalography (qEEG) scan in 2016, doctors determined that he has “a type of
injury no one else on [the] planet has or [has] ever had.” Plaintiff claims that this injury
affects over 25% of his brain. He further asserts that his brain damage is permanent and
has caused him to suffer from various mental and physical conditions.

       Based on these allegations, Plaintiff filed his lawsuit on August 9, 2018, asserting
a claim for violation of the Tennessee Healthcare Liability Act, Tennessee Code
Annotated section 29-26-101, et seq. Prior to filing the action, however, Plaintiff did not
send pre-suit notice to Erlanger.

        On September 26, 2018, Erlanger filed a motion to dismiss, based on Plaintiff’s
failure to serve pre-suit notice and on application of the three-year statute of repose. In
its motion, Erlanger demonstrated that the statute of repose (a) had extinguished
Plaintiff’s claim at least 35 years prior to Plaintiff’s filing of his complaint, and (b) had
not been tolled by Plaintiff’s minority at the time of the purported negligence.

       On January 10, 2019, the trial court entered an order dismissing Plaintiff’s
complaint for failure to state a claim upon which relief can be granted. The court
observed that “Plaintiff was required to comply with the pre-suit notice requirements
outlined in Tenn. Code Ann. § 29-26-121” and that his “[f]ailure to do so required that
the case be dismissed.” Further, the court held that “under Tenn. Code Ann. § 29-26-
116(a)(3), Plaintiff’s claim is barred by Tennessee’s three-year statute of repose.”

                                        II. ISSUES

       We restate Plaintiff’s presentation of the issues as follows: Did the trial court
correctly grant Erlanger’s motion to dismiss, as Plaintiff failed to serve pre-suit notice
and his claim was barred by the statute of repose applicable to healthcare liability claims?

                            III. STANDARD OF REVIEW

       The resolution of a motion to dismiss under Rule 12.02(6) of the Tennessee Rules
of Civil Procedure is a matter of law; therefore, the standard of review on appeal is de
novo, with no presumption of correctness. Leggett v. Duke Energy Corp., 308 S.W.3d
843, 851 (Tenn. 2010). Rule 12.02(6) of the Tennessee Rules of Civil Procedure affords
a defendant the option of moving for dismissal based on a plaintiff’s “failure to state a
claim upon which relief can be granted.” Tenn. R. Civ. P. 12.02(6). The motion tests the
legal sufficiency of a complaint and is considered based on an examination of the
pleadings alone. Leggett, 308 S.W.3d at 851. Dismissal is warranted when the facts
alleged in the complaint, taken as true, do not entitle the plaintiff to relief, or when the
complaint is “totally lacking in clarity and specificity.” Marceaux v. Thompson, 212
S.W.3d 263, 266-67 (Tenn. Ct. App. 2006).

       In considering the adequacy of a plaintiff’s claims, the courts give pro se litigants
“a certain amount of leeway in drafting their pleadings and briefs.” Marceaux, 212
S.W.3d at 267. However, “[p]ro se litigants should not be permitted to shift the burden
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of the litigation to the courts or to their adversaries. . . . [T]he courts cannot create claims
or defenses for pro se litigants where none exist.” Id.

                                     IV. DISCUSSION

                                              A.

        Despite the protests of Plaintiff, his claim against Erlanger is clearly a healthcare
liability claim; in it, Plaintiff asserts that Erlanger was negligent in failing to treat
Plaintiff’s high-grade fever while he was a patient in Erlanger’s care. Therefore, Plaintiff
was required to comply with the requirements of Tennessee Code Annotated section 29-
26-121 by providing pre-suit notice to Erlanger. Tenn. Code Ann. § 29-26-121. That
statute provides as follows:

              (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.

              (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.

              ...

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              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).

Id. (Emphasis added.). The pre-suit notice requirement is mandatory. Myers v. AMISUB
(SFH), Inc., 382 S.W.3d 300, 308 (Tenn. 2012). The Tennessee Supreme Court “has
concluded that providing pre-suit notice to potential defendants is the ‘essence’ of the
[Health Care Liability Act].” Clary v. Miller, 456 S.W.3d 101, 105 (Tenn. Ct. App. 2017)
(citing Myers, 382 S.W.3d at 309). “Nothing short of strict compliance is acceptable.” Id.

       In the present case, Plaintiff never sent pre-suit notice to Erlanger, and his
complaint did not state that he had complied with the pre-suit notice requirements.
Plaintiff alleges in his appellate brief that he told his father, and the “lead engineer for
Erlanger,” that he was going to sue Erlanger. Even assuming that this is true, this does
not constitute pre-suit notice as required by Tennessee Code Annotated section 29-26-
121. The Tennessee General Assembly mandated specific items that must be included in
a pre-suit notice, and it expressly required that the notice be made in writing and sent to
the defendant. Id. The fact that Plaintiff informed his father of his intent to sue Erlanger
does not satisfy these requirements. The required sanction for failure to deliver pre-suit
notice is dismissal. Foster v. Chiles, 467 S.W.3d 911, 916 (Tenn. 2015). Plaintiff’s
claim against Erlanger was properly dismissed. Id.

                                            B.

       Under Tennessee Code Annotated section 29-26-116(a)(3), the statute of repose in
a healthcare liability action is three years from the date on which the negligent act or
omission occurred, unless there is fraudulent concealment on the part of the defendant.
Tenn. Code Ann. § 29-26-116(a)(3); see also, Range v. Sowell, No. M2006-02009-COA-
R3-CV, 2009 WL 3518176, at *7 (Tenn. Ct. App. 2009). Plaintiff alleged that Erlanger
acted negligently in 1979 or 1980, when it failed to treat his high-grade fever. Plaintiff
has never asserted that Erlanger fraudulently concealed its alleged negligence and there is
no such evidence before this court. The healthcare liability statute of repose extinguished
Plaintiff’s claim at some point in 1982 or 1983. Tenn. Code Ann. § 29-26-116(a)(3). As
a matter of law, Plaintiff is precluded from recovering. Calaway, ex rel. Calaway v.
Schucker, 193 S.W.3d 509, 515 (Tenn. 2005), as amended on reh’g in part (Feb. 21,
2006). The trial court properly dismissed Plaintiff’s claim against Erlanger because it
was extinguished at least 35 years prior to Plaintiff’s filing of his complaint. Tenn. Code
Ann. § 29-26-116(a)(3); see also Calaway, 193 S.W.3d at 515.

                                            C.

       Plaintiff asserts in his appellate brief that the trial court erred by applying the
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statute of repose, given that he was a minor when the alleged acts of negligence occurred,
and given his alleged brain damage. However, the statute of repose is not tolled by
minority or mental incompetency. Calaway, 193 S.W.3d at 517; Mills v. Wong, 155
S.W.3d 916, 920-21 (Tenn. 2005). In Calaway, the Tennessee Supreme Court held that a
plaintiff’s minority does not toll the health care liability statute of repose for all cases
filed after December 9, 2005. 193 S.W.3d at 513. By way of explanation, the Court
noted that a statute of repose imposes “an absolute time limit within which action must be
brought.” Id. at 515 (emphasis in original). Since the health care liability statute of
repose contains no exemptions for minority, the Court held that “we will not rewrite the
medical malpractice statute of repose to include an exception for minors when it appears
from the statutory language that the Legislature did not intend such an exception.” Id. at
516-17.

       Furthermore, the statute of repose is not tolled during periods of mental
incompetency. Mills, 155 S.W.3d at 920-21. The Tennessee Supreme Court noted that
statutes of repose create an “absolute temporal bar,” and “may be tolled only in
exceedingly limited circumstances”—namely, circumstances involving fraudulent
concealment. Id. at 920. The Court found that “[t]he absence of an express tolling
provision for mental incompetency when tolling is expressly provided for on another
ground indicates legislative intent not to provide for tolling on the basis of mental
incompetency.” Id. Furthermore, the Court held that the disability statute provided in
Tenn. Code Ann. § 28-1-106 does not serve to toll the statute of repose applicable to a
health care liability claim. Id.

       Here, Plaintiff’s assertion that the statute of repose should not bar his claim, given
his minority and mental incompetency, is inaccurate. The trial court correctly dismissed
Plaintiff’s claim based on the statute of repose.

                                             D.

        Plaintiff claims that Erlanger was “procedurally barred from being heard” because
it failed to file a notice of appearance of counsel within 30 days of service. Plaintiff,
however, cites no law in support of this assertion.

       By filing the motion to dismiss, which indicated counsel served as “Attorney[] for
Defendant,” counsel for Erlanger entered an appearance with the trial court as counsel of
record. The court and Plaintiff were entitled to presume that Attorney Weiss had
authority to enter her appearance as Erlanger’s counsel of record. See Kennedy v. Security
Bldg. & Sav. Ass’n, 57 S.W. 388, 396 (Tenn. Ch.App.1900). Pursuant to Rules 12.01 and
12.02 of the Tennessee Rules of Civil Procedure, Erlanger timely filed its motion to
dismiss on September 26, 2018, within 30 days of service of the complaint.


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                                              E.

        Plaintiff contends that the pre-suit notice requirements are unlawful. For instance,
Plaintiff asserts that the pre-suit notice requirement is “illegal” because “it causes
threatening communication[s] to be sent through U.S. mail.” Plaintiff also contends that
the pre-suit notice requirement “violates [his] right to trial by jury by . . . requiring [him]
to try to settle out of court when [he] never intended or wanted to settle out of court.”

       Under Tennessee Code Annotated section 29-14-107, if Plaintiff intended to
challenge the constitutionality of the pre-suit notice requirement, he was required to serve
the Tennessee Attorney General with a copy of his petition. Tenn. Code Ann. § 29-14-
107; see also Advisory Commission Comments to Tenn. R. Civ. P. 24.04. This is a
mandatory prerequisite to challenging the constitutionality of a statute. Cummings v.
Shipp, 3 S.W.2d 1062, 1063 (Tenn. 1928). The record indicates that Plaintiff did not give
the Attorney General a copy of his petition. Therefore, Plaintiff is precluded from
challenging the constitutionality of the pre-suit notice statute on appeal. Plaintiff’s
motion to submit materials to challenge the constitutionality of the relevant Tennessee
statutes, filed January 28, 2020, is DENIED. Additionally, all other pending motions are
likewise DENIED (i.e., Plaintiff’s motion filed January 30, 2020, to appeal our denial of
an oral argument; Plaintiff’s “emergency motion” dated March 31, 2020; etc.).
       .

                                    V. CONCLUSION

       The judgment of the trial court is affirmed, and the case is remanded for such
further proceedings as may be necessary. Costs of the appeal are assessed to the
appellant, Daniel Eric Cobble.




                                                   _________________________________
                                                   JOHN W. MCCLARTY, JUDGE




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