                                                                                          04/07/2020
                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT KNOXVILLE
                          December 4, 2019 Session

            LATOYA LEDFORD, EX REL. NAYELI RODRIGUEZ
                     v. STATE OF TENNESSEE

                      Appeal from the Claims Commission
               No. T20161036 William A. Young, Commissioner
                    ___________________________________

                         No. E2019-00480-COA-R3-CV
                     ___________________________________


This appeal is from the Claims Commission’s order granting the defendant’s motion to
dismiss pursuant to Tennessee Code Annotated sections 9-8-402, 29-26-121, and 29-26-
122. We must affirm.

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

JOHN W. MCCLARTY, J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and THOMAS R. FRIERSON, II., J., joined.

Euel Walter Kinsey, Jr., Bloomfield Hills, Michigan, for the appellant, Latoya Ledford.

Herbert H. Slatery, III, Attorney General and Reporter, Andreé S. Blumstein, Solicitor
General, and Robert W. Mitchell, Assistant Attorney General, for the appellee, State of
Tennessee.


                                       OPINION

                                I.     BACKGROUND

      This matter involves a health care liability action filed against the State of
Tennessee (“the State”) by Latoya Ledford (“Claimant”). Claimant alleges that on
October 9-10, 2014, attending physician Dr. Howard Herrell, the nursing staff at Johnson
City Medical Center, along with residents from James H. Quillen College of Medicine at
East Tennessee State University (“ETSU”), departed from the applicable standards of
care while treating Claimant and her daughter (“the Child”) when they failed to recognize
signs and symptoms of fetal distress and a ruptured uterus. Claimant’s labor had been
primarily managed by first-year resident Dr. Alison Cronin, in conjunction with Dr.
Belinda Reardon, a third-year resident. Both residents were supervised by Dr. Herrell.
Claimant contends that although Dr. Herrell promised to meet her on the evening of
October 9th, he did not see her until shortly before an emergency C-Section was
performed. Because of the ruptured uterus, the full-term Child was not breathing at the
time of delivery and suffered severe brain damage due to the loss of adequate oxygen for
a prolonged period of time. She now suffers from a seizure disorder, is unable to walk,
and depends on nutrition through a G-tube. Claimant argues that the damages incurred
by her and the Child were avoidable if the standard of care had been met by the attending
doctor, nurses, and residents.1

        On October 7, 2015, Claimant served notice on all defendants pursuant to
Tennessee Code Annotated section 29-26-121. On January 29, 2016, Claimant’s counsel
contacted the Division of Claims Administration and the Attorney General’s office
because the case had not been turned over to the Claims Commission.2 Retroactive
application of the 90-day period and immediate referral to the Claims Commission was
requested. A notice of claim and a complaint were filed with the Division of Claims
Administration on February 3, 2016. The certificate of good faith attached was for the
separate action in Washington County Circuit Court. Thereafter, the claim was
transferred to the Claims Commission on May 3, 2016. Claimant sent a second pre-suit
notice to ETSU on March 14, 2017, and filed a second complaint in the Claims
Commission on July 5, 2018. The second complaint, essentially an amended complaint,
referenced the new notice sent to the several defendants for the circuit court case and the
State. Inadvertently, the certificate of good faith attached to the second complaint related
to yet another case and bears a 2011 date.

      The Commission did not issue an initial scheduling order until June 2018, 25
months after the matter had been transferred to the Commission. The State moved to
dismiss the action on October 9, 2018. The Claims Commission Court granted the
motion, finding, inter alia, that Claimant had failed to prosecute the claim as required by
Tennessee Code Annotated section 9-8-402(b) and had failed to provide HIPAA-
compliant3 medical authorizations as required by Tennessee Code Annotated section 29-
26-121. Claimant timely filed this appeal.




1
  Claimant asserts that Dr. Herrell was subjected to disciplinary action after this incident.
2
  Claimant’s counsel sent a letter documenting the failure of the Division of Claims
Administration to understand that the notice letter dated October 6, 2015, constituted a claim and
should have been acted upon within 90 days.
3
  Health Insurance Portability and Accountability Act of 1996.
                                                2
                                          II.    ISSUES

       The issue raised on appeal by Claimant is whether the Claims Commission
properly dismissed her health care liability action for failure to prosecute and failure to
comply with pre-suit-notice requirements.


                             III.    STANDARD OF REVIEW

       Review of a trial court’s findings of fact is de novo upon the record, accompanied
by a presumption of correctness, unless the evidence preponderates otherwise. Tenn. R.
App. P. 13(d); Coal Creek Co. v. Anderson Cnty., 546 W.W.3d 87, 98 (Tenn. Ct. App.
2017). Review of a trial court’s conclusions of law is de novo with no presumption of
correctness. Id.

      A dismissal of the case for failure to prosecute, pursuant to Tennessee Code
Annotated section 9-8-402(b), is reviewed for an abuse of discretion. Holt v. Webster,
638 S.W.2d 391 (Tenn. Ct. App. 1982). A trial court has “considerable discretion to
dismiss a case for failure to prosecute.” Grissom v. State, No. W2001-03021-COA-R3-
CV, 2002 WL 31895712, at *2 (Tenn. Ct. App. Dec. 23, 2002) (internal citations
omitted); Tenn. R. Civ. P. 41.02(1).

       A motion to dismiss pursuant to Rule 12.02 for failure to state a claim is the
proper way to challenge a complaint’s compliance with Tennessee Code Annotated
section 29-26-121 and 29-26-122; Myers v. AMISUB (SFH), Inc., 382 S.W.3d 300, 307
(Tenn. 2012). The burden shifts to the claimant to show either compliance or
extraordinary cause for non-compliance. Id. Such a motion challenges only the legal
sufficiency of the complaint, not the strength of a claimant’s proof. Phillips v.
Montgomery Cnty., 442 S.W.3d 233, 237 (Tenn. 2014).


                                    IV.         DISCUSSION

                                                 A.

       Tennessee Code Annotated section 9-8-402(b) provides that “[a]bsent prior
written consent of the commission, it is mandatory that any claim filed with the claims
commission upon which no action is taken by the claimant to advance the case to
disposition within any one-year period of time be dismissed with prejudice.” Tenn. Code
Ann. § 9-8-402(b). This court “has recognized on several occasions that the plain
language of the statute mandates dismissal if no action is taken for a one-year period.”
Mathis v. State, No. M2009-02398-COA-R3-CV, 2010 WL 2482330, at * 3 (Tenn. Ct.
App. Jun. 10, 2010). The only exception is if claimant has secured the prior written

                                                  3
consent of the Commissioner. Id. As noted in Skipper v. State, No. M2009-00022-COA-
R3-CV, 2009 WL 2365580, at * 3 (Tenn. Ct. App. Jul. 31, 2009), even if a claimant is
waiting on action to be taken by the State, inaction may result in the case being
dismissed.

       Claimant filed her complaint with the Division of Claims Administration on
February 3, 2016. The claim was transferred to the Claims Commission on May 3, 2016.
Claimant points to a March 22, 2017, letter sent by the Division of Claims Administration
“regarding notice of a potential claim.” This letter references a March 17, 2017, letter
that was received from Claimant by the Division of Claims Administration on March 21,
2017. In her second complaint filed on July 5, 2018, Claimant alleges that the State was
served with a second notice in March 2017, which is ample evidence that she was
continuing to prosecute the claim. Receipt was acknowledged by the Division of Claims
Administration in a letter dated March 22, 2017. Claimant contends that the
Commissioner wrongly rejected this fact as to evidence of action taken by the claimant
within one year “so as to suspend the operation of this statute.” See Tenn. Code Ann. §
9-8-402(b).4

       The Commission determined that the sending of the notice letter did not constitute
an action to advance the case to disposition under Section 9-8-402(b). As noted by the
Commissioner, “There appears to be no indication that any activity occurred in the
4
    The Commissioner specifically indicated as follows:
         The Claimant acknowledges receiving correspondence relating to the claim being
         transferred to the claims commission. . . . There appears to be no indication that any
         activity occurred in the Claims Commission taken by the Claimant to advance the case to
         disposition, until July 5, 2018, when Claimant filed a second complaint. Within the
         Claims Commission, a period of year one year had elapsed without action taken by the
         Claimant to advance the case to disposition. Tenn. Code Annotated § 9-8-402(b). The
         Defendant’s motion to dismiss was filed on October 9, 2018, in response to the
         Claimant’s July 5, 2018, complaint and/or this Commission’s Initial Order Governing
         Proceedings entered on June 1, 2018, and filed with the Claims Commission Clerk on
         June 7, 2018. This was Defendant’s first filing of any type in this claim. In response to
         Defendant’s motion, Claimant has not in her filings pointed the Commission to any
         information that, during the interim, Claimant did attempt to seek out the Defendant, or
         communicate in any respect with the Attorney General’s office, or make any contact with
         the Claims Commission Clerk or the Commissioner or his staff. Under the attendant
         circumstances, the Commission regrettably finds that [it] has no alternative but to
         conclude that the Claimant did not obtain “prior written consent of the commission” to
         suspend activities or refrain from conducting activities in this claim before the
         Commission. Tenn. Code Ann. § 9-8-402(b) (emphasis supplied by the undersigned).
         The statute clearly states that dismissal is “mandatory” with respect to “any claim filed
         with the claims commission upon which no action is taken by the claimant to advance the
         case to disposition within any one-year period of time. . . .” Id. (emphasis supplied by the
         undersigned).
                                                   4
Claims Commission, taken by the Claimant to advance the case to disposition, until July
5, 2018, when Claimant filed a second complaint.” Consequently, “a period of over one
year had elapsed without action taken by the Claimant to advance the case to
disposition.”

        Claimant asserts that on June 7, 2018, when the Commissioner issued an initial
scheduling order in the case before the Claims Commission, “such an order can serve as
written consent from the commission to forego dismissal absent advancement of the case.
. . .” The Commissioner held, however, that “[t]he Claimant cites no authority to support
this proposition” and “that it was not his intent, implicit or otherwise, to provide, nor did
he provide, a retroactive consent for Claimant’s failure to take required action.”

        Claimant asserts that the State did not file an answer to the original complaint and
that no answer was filed or served on Claimant, that the Division of Claims
Administration did not properly respond to her claim, and that the Claims Commission
failed to issue a scheduling order until June 2018. She also complains that she did not
receive a “Warning letter for No Progress or a Show Cause.” We find her assertions
unavailing. As argued by the State, the responsibility for taking action to advance the
case to disposition is Claimant’s, and if no action is taken, the claim “must be dismissed
with prejudice.” Tenn. Code Ann. § 9-8-402(b) (emphasis added). See Mathis, 2010 WL
2482330, at *3 (affirming dismissal after no action was taken to prosecute the claim for
three years, and claimant did not present evidence concerning his failure to prosecute);
see also Skipper, 2009 WL 2365580, at *3-4 (affirming dismissal when claimant
presented no evidence he sought the written consent of the Claims Commission for
claimant’s failure to act for over a year); Grissom, 2002 WL 31895712, at *2 (rejecting
argument that the one-year period is tolled while the claimant awaits the State’s answer).

       There was more than a one-year lapse between Claimant’s February 2016
complaint and her March 2017 letter; another such lapse occurred between the March
2017 letter and Claimant’s July 2018 complaint. The record includes no indication that
Claimant sought the written consent of the Claims Commission for her failure to take any
action during the periods that the case sat dormant. The action was properly dismissed.


                                             B.

       Claimant also challenges the Claims Commission’s dismissal of her case for
failure to comply with the pre-suit-notice requirements of Tennessee Code Annotated
section 29-26-121. The State argues that this issue is waived because it is not included in
Claimant’s statement of the issues presented for review. See Hodge v. Craig, 382 S.W.3d
325, 334-35 (Tenn. 2012).



                                             5
       Upon considering the issue, we note that notice of a potential health care liability
claim must be given to a named defendant at least 60 days prior to filing the complaint,
and that notice must include, among other things, a HIPAA-compliant medical-
authorization form so that each defendant can obtain complete medical records from
other providers. Tenn. Code Ann. § 29-26-121(a)(1), (a)(2)(E).

       In the instant case the State asserted that Claimant had not attached any HIPAA
authorizations to her October 7, 2015, pre-suit notice to the Division of Claims
Administration or to her February 2016 complaint. Claimant insists that she included the
authorizations with her pre-suit notice. The Claims Commission, however, found
Claimant’s proof lacking:

               [T]he Commission notes that no authorizations or copies of
               authorizations, whether partially complete or otherwise, are
               attached to [Claimant’s motion response]. Similarly, in the
               Complaint filed in the Claims Commission (February 3,
               2016), no HIPAA compliant authorization copies are attached
               either to the complaint or to the copy of the October 7, 2015
               letter. No such authorizations have been presented for this
               Tribunal to view.

Claimant contends that the Commission “was confusing the requirements” for attaching
authorizations to the notice under subdivision -121(a)(2) with those for attaching
authorizations to the complaint under subdivision -121(b).5

        Once a complaint is filed, Section 29-26-121(b) states that the pleadings “shall
provide the documentation specified in subdivision (a)(2),” which, as the Commission
rightly observed, “specifically includes (subsection (E)) the HIPAA compliant medical
authorization.” The Claims Commission observed that in this claim, “there was not a
HIPAA authorization, and the Claimant has not produced one. Copies of the
authorization were not filed with the Complaint.” The Commission specifically
determined that it “simply cannot find that the Claimant substantially complied with the
statute. The Commission finds that the error here is not a non-substantive error. . . .” See
Stevens v. Hickman Cmty. Health Servs., Inc., 418 S.W.3d 547, 555 (Tenn. 2013).
Accordingly, the Commission properly found “that there was not substantial compliance
by Claimant with respect to the HIPAA authorization.” Because Claimant failed to


5
 According to the State, it is actually Claimant who confuses the requirements, as she cites
Section 29-26-121(b)(4) in support of her assertion that “proof was provided by an Affidavit of
the party mailing the notice, along with filing a copy of the certificate of mailing and a copy of
the notice sent.” But that is a reference to Subdivision -121(a)(4), which addresses proof of
service of the pre-suit notice by mail in compliance with Subdivision -121(a)(3)(B).
                                                6
demonstrate compliance with Tennessee Code Annotated section 29-26-121(a)(2) or -
121(b), the case was properly dismissed on this basis as well.


                                             C.

       Claimant additionally challenges the Claims Commission’s dismissal of her July
2018 complaint based on the finding that it lacked a compliant certificate of good faith
that Claimant had consulted with at least one expert about the case, as required by
Tennessee Code Annotated section 29-26-122. Claimant contends that the 2018
complaint did not require a new certificate of good faith because the 2016 complaint
contained one. The State argues that neither complaint contained a compliant certificate
of good faith, as the 2016 certificate is for the Washington County Circuit Court action
and the 2018 certificate is for an unrelated case altogether in Davidson County Circuit
Court bearing a 2011 date – three years prior to the allegations in this matter. According
to the State, because the 2016 certificate is for a different case with different parties, a
separate certificate is required for the matter before the Commission. See Sirbaugh v.
Vanderbilt Univ., 469 S.W.3d 46, 53 (Tenn. Ct. App. 2014) (holding that a certificate of
good faith must apply to each individual defendant in order to assure that an expert
believes there is a good faith basis to maintain a cause of action against each defendant).

        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 v.
Colburn, No. M2012-01834-COA-R3-CV, 2013 WL 3964758, at *3 (Tenn. Ct. App. July
30, 2013) (citing Myers, 382 S.W.3d at 308); see also Sirbaugh, 469 S.W.3d at 51. 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.
Claimant’s failure to comply with the certificate of good faith requirement also mandates
dismissal. See Newman v Guardian Health Care Providers, Inc., No. M2015-01315-
COA-R3-CV, 2016 WL 4069052, at * 4 (Tenn. Ct. App. Jul. 27, 2016).


                                             D.

       We pretermit consideration of a number of other arguments raised by Claimant,
including several not made in the Claims Commission and therefore waived. See
Commerce Union Bank v. Bush, 512 S.W.3d 217, 224 (Tenn. Ct. App. 2016) (“Issues
raised for the first time on appeal are waived.”) (quoting Black v. Blount, 938 S.W.2d
394, 403 (Tenn. 1996)); Nunn v. Tenn. Dep’t of Correction, 547 S.W.3d 163, 190 (Tenn.
Ct. App. 2017) (appellate courts “are limited in authority to the adjudication of issues that
are presented and decided in the trial courts”); see also City of Memphis v. Shelby
County, 469 S.W.3d 531, 560-61 (Tenn. Ct. App. 2015) (finding issue was waived when

                                             7
it was only mentioned in the footnote of a pre-trial brief filed the day before trial and was
“minimally addressed”).


                                   V. CONCLUSION

       For the reasons stated, the judgment of the Claims Commission is affirmed, and
the case is remanded for such further proceedings as may be necessary. Costs of the
appeal are taxed to the appellant, Latoya Ledford.




                                                         JOHN W. McCLARTY, JUDGE




                                             8
