                   IN THE COURT OF APPEALS OF TENNESSEE
                               AT NASHVILLE
                                 Assigned on Briefs June 2, 2016

         BETTY KIRBY v. SUMNER REGIONAL MEDICAL CENTER

                     Appeal from the Circuit Court for Sumner County
                     No. 83CC1-2014-CV-680 Joe Thompson, Judge


                    No. M2015-01181-COA-R3-CV – Filed July 12, 2016


This is a health care liability action.1 The plaintiff suffered permanent damage after
receiving medical treatment from the defendant hospital. The plaintiff filed suit exactly
one year after her hospital stay. The defendant hospital moved to dismiss, arguing that
the plaintiff failed to comply with the pre-suit notice and good faith requirements
applicable to health care liability actions. The plaintiff later argued that the failure to
comply with the necessary requirements should be excused for extraordinary cause as
evidenced by the passing of her legal counsel‟s son four days prior to the filing of the
complaint. The trial court granted summary judgment, finding that no extraordinary
cause existed. The plaintiff appeals. We reverse the judgment of the trial court.

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

JOHN W. MCCLARTY, J., delivered the opinion of the Court, in which FRANK G.
CLEMENT, P.J. and KENNY ARMSTRONG, J., joined.

Daniel Marshall, Nashville, Tennessee, for the appellant, Betty Kirby.

Christopher A. Vrettos, Nashville, Tennessee, for the appellee, Sumner Regional Medical
Center.



1
  Tennessee Code Annotated section 29-26-101 now defines most 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 apply to this action.
                                              OPINION

                                  I.      BACKGROUND

       On June 24, 2014, Betty Kirby (“Plaintiff”) filed a health care liability complaint
with an attached certificate of good faith against Sumner Regional Medical Center
(“Defendant” or “Sumner Regional”) based upon the care and treatment she received at
Sumner Regional from June 23, 2013, through June 29, 2013. Defendant sought
dismissal of the lawsuit for failure to comply with the pre-suit notice and good faith
requirements applicable to health care liability actions. Specifically, Defendant argued
that Plaintiff failed to provide pre-suit notice, that the complaint did not indicate that pre-
suit notice had been provided or contain supporting documentation indicating the same,
and that the certificate of good faith was deficient because it did not disclose whether
counsel had previously violated the statute. In support of the motion, Defendant attached
an affidavit in which Karen Hanrahan, the Risk Manager for Sumner Regional, attested:

        At no time at least 60 days prior to the filing of the [c]omplaint did
        [Plaintiff] provide [Defendant] any written correspondence regarding
        potential legal action, by either certified mail or personal delivery, which
        included a list of potential defendants or a HIPAA compliant medical
        authorization.

Ms. Hanrahan further attested that the only document that could serve as pre-suit notice, a
letter sent by facsimile and dated January 31, 2014, did not “inform [Defendant] that it
was to be the sole [d]efendant in a potential health care liability action” and did not
include “a list of other potential defendants or a HIPAA compliant medical
authorization.”

        Plaintiff responded by asserting that dismissal was inappropriate because
Defendants were aware of the potential for litigation several months before the complaint
was filed. Attached to Plaintiff‟s response was a notice of intent letter and a HIPAA
compliant medical authorization. Plaintiff requested a stay of the proceedings for 120
days to allow Defendant adequate time to investigate and respond to the complaint. At
the hearing, Plaintiff argued that dismissal for failure to disclose whether counsel had
violated the good faith statute was unwarranted because counsel had never violated the
statute.2 Plaintiff asserted that she and her family provided Defendant with a HIPAA

2
  During the pendency of this case, the Supreme Court held “that the requirement of Tennessee Code
Annotated section 29-26-122(d)(4) that a certificate of good faith disclose the number of prior violations
of the statute does not require disclosure of the absence of any prior violations of the statute.” Davis v.
Ibach, 465 S.W.3d 570, 574 (Tenn. 2015), overruling Vaughn v. Mountain States Health Alliance, No.
E2012-01042-COA-R3-CV, 2013 WL 817032 (Tenn. Ct. App. Mar. 5, 2013).
                                                    -2-
compliant medical authorization and other information necessary to investigate her claim
during the negotiation process. Following the hearing, the court directed the parties to
submit proposed findings of fact and conclusions of law.

      In lieu of submitting findings of fact and conclusions of law, Plaintiff filed a
memorandum in opposition to the requested dismissal. In the memorandum, Plaintiff‟s
counsel, Daniel Marshall (“Counsel”), provided as follows:

       First, [I] will address the issue of “extraordinary cause”. [I] will also
       discuss below some of the alleged bases for [Defendant‟s] summary
       judgment motion but let‟s start first with the following important point. As
       shown in the attached death certificate, my infant son passed away about
       four days before I filed the [c]omplaint in this case. Understandably, I was
       extremely upset and not thinking clearly shortly after my son‟s death.
       Unable to take any time off from my solo practice, I went from courthouse
       to courthouse a couple of weeks thereafter in a somewhat zombie-like state.
       I am unable to give specifics regarding my thought process at the time of
       the filing of the [c]omplaint. I just [knew] the statute of limitations was
       approaching and it was on my list of deadlines to meet. For the few months
       my son lived, there were frequent periodic indications that each day could
       be his last, including a few serious hospitalizations. The filing of the
       [c]omplaint before sending Notices of Intent and otherwise complying with
       the statute was a result of the aforementioned illness and death.

Plaintiff argued that the failure to comply with the pre-suit notice and good faith
requirements applicable to health care liability actions should be excused for
extraordinary cause. She alternatively argued that dismissal was unnecessary when the
court possessed the discretion to allow her to cure the deficiencies.

       In light of the new argument, the court allowed Defendant time in which to
respond. Defendant conceded that extraordinary cause existed to excuse any deficiencies
in the complaint and the failure to comply with the good faith statute. Defendant
maintained that dismissal was appropriate based upon the failure to provide adequate pre-
suit notice because “the birth, illness, and death of [Counsel‟s] son all occurred well after
service of the defective pre-suit notice.” Defendant noted that Counsel‟s son was born on
March 6, 2014, 34 days after the January 2014 correspondence.

       Thereafter, the court dismissed the suit without prejudice, finding “that no
extraordinary cause exists pursuant to [Tennessee Code Annotated section] 29-26-121(b)
for Plaintiff‟s failure to timely file pre-suit notice.” This timely appeal followed.

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                                            II.     ISSUE

       We consolidate the issues raised by the parties into the following single and
dispositive issue: Whether the trial court abused its discretion by failing to excuse
compliance with the pre-suit notice requirements applicable to health care liability
actions pursuant to Tennessee Code Annotated section 29-26-121(b).

                                 III.     STANDARD OF REVIEW

        The Tennessee Supreme Court has held that the proper way to challenge a
plaintiff‟s compliance with the health care liability requirements is through a Tenn. R.
Civ. P. 12.02(6) motion to dismiss. Myers v. AMISUB (SFH), Inc., 382 S.W.3d 300, 307
(Tenn. 2012). “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.” Id. In this case, documents outside the
pleadings were attached to the motion to dismiss, thereby converting the motion into one
for summary judgment. The appropriate summary judgment standard to be applied is as
follows:

        [W]hen the moving party does not bear the burden of proof at trial, the
        moving party may satisfy its burden of production either (1) by
        affirmatively negating an essential element of the nonmoving party‟s claim
        or (2) by demonstrating that the nonmoving party‟s evidence at the
        summary judgment stage is insufficient to establish the nonmoving party‟s
        claim or defense.

Rye v. Women’s Care Center of Memphis, MPLLC, 477 S.W.3d 235, 264 (Tenn. 2015).3
“We review a trial court‟s ruling on a motion for summary judgment de novo, without a
presumption of correctness.” Id. at 250 (citations omitted).

3
  We believe the standard set forth in Rye is controlling and must be applied retrospectively, despite the
legislature‟s codification of Tennessee Code Annotated section 20-16-101, a similar, if not identical
standard which provides as follows:

        [T]he moving party who does not bear the burden of proof at trial shall prevail on its
        motion for summary judgment if it:

                (1)    Submits affirmative evidence that negates an essential element of
                the nonmoving party‟s claim; or

                (2)      Demonstrates to the court that the nonmoving party‟s evidence is
                insufficient to establish an essential element of the nonmoving party‟s
                claim.
                                                   -4-
        “The question of whether [a 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).

                                   IV.    DISCUSSION

       The Tennessee Civil Justice Act of 2011 (“the Act”) established notice
requirements applicable to all health care liability actions that accrue on or after October
1, 2011. The Act provides, in pertinent part, as follows:

       (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.

       (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
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              (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.

       (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)    Mailing of the notice[.]

Tenn. Code Ann. § 29-26-121(a). The legislature has established in the Act that absent a
showing of extraordinary cause by a plaintiff, a court does not have the discretion to
excuse compliance if a complaint is filed that fails to meet the requirements of Tennessee
Code Annotated section 29-26-121. Tenn. Code Ann. § 29-26-121(b).

       Plaintiff concedes that she did not file adequate pre-suit notice pursuant to section
29-26-121. Instead, she argues that the court abused its discretion in refusing to excuse
compliance based upon the claim of extraordinary cause. She asserts that extraordinary
cause existed based upon Counsel‟s wife‟s complications during pregnancy and his infant
son‟s illness and ultimate death. Defendant responds that any claim of extraordinary
cause pertaining to the period before the birth of Counsel‟s son should be disregarded
because such claims were not presented for the court‟s consideration. We agree. To the
extent Plaintiff argues that extraordinary cause existed prior to the birth of the child on
March 6, 2014, this argument is waived. A party may not offer a new issue for the first
time on appeal. See Lane v. Becker, 334 S.W.3d 756, 764 (Tenn. Ct. App. 2010) (citing
Campbell Cnty. Bd. of Educ. v. Brownlee–Kesterson, Inc., 677 S.W.2d 457, 466-67
(Tenn. Ct. App. 1984)). “The jurisprudential restriction against permitting parties to raise
issues on appeal that were not first raised in the trial court is premised on the doctrine of
waiver.” Fayne v. Vincent, 301 S.W.3d 162, 171 (Tenn. 2009) (citations omitted).

                                            -6-
      Thus, at issue in this appeal is whether the court abused its discretion by failing to
excuse compliance based upon the following claim of extraordinary cause:

       For the few months my son lived, there were frequent periodic indications
       that each day could be his last, including a few serious hospitalizations.
       The filing of the [c]omplaint before sending Notices of Intent and otherwise
       complying with the statute was a result of the aforementioned illness and
       death.

Citing Hawkins v. Martin, No. W2013-02102-COA-R3-CV, 2014 WL 2854256 (Tenn.
Ct. App. June 23, 2014), Defendant asserts that the court did not abuse its discretion in
refusing to excuse compliance when the birth, illness, and death of Counsel‟s son
occurred after service of the defective pre-suit notice, dated January 31, 2014.

      In Hawkins, the pre-suit notice provided to the defendant did not contain a HIPAA
compliant medical authorization. 2014 WL 2854256, at *1. The defendant sought
dismissal, and counsel for the plaintiff argued that extraordinary cause existed to excuse
compliance with the notice provision as evidenced by his impending deployment to
Afghanistan for military service. Id. at *2-3. This court upheld the trial court‟s dismissal
of the suit, holding that the evidence reflected that counsel received his notice of
deployment after the defective pre-suit notice had been filed. Id. at *8-9.

      The facts presented in Hawkins are inapposite to the facts presented in this case.
Here, a careful review of the January 2014 correspondence reveals that Plaintiff never
provided pre-suit notice. The letter, in its entirety, provided as follows:

       I represent [Plaintiff] and her children regarding their concerns about
       [Plaintiff‟s] treatment at [Sumner Regional]. This letter is an attempt to
       satisfactorily resolve this matter without the need for litigation.

       In summary, the gravamen of [Plaintiff‟s] complaint is that the medical
       professionals employed by Sumner Regional failed to show enough
       attention to [Plaintiff] to note and adequately treat the urinary retention
       issues from which she was suffering during her stay. Sumner Regional‟s
       failure in this regard is the direct and proximate cause of [Plaintiff‟s]
       inability to urinate on her own. Said inability and the mechanisms she now
       has to use to void her bladder have caused a significant diminution in her
       quality of life.

       The distention around her abdomen area was obvious by sight and
       palpitation to those of her children who visited/assisted her frequently at
                                            -7-
      your facility and it would have been obvious to any of your staff who
      heeded the concerns they voiced to Sumner Regional medical professionals.
      Yet, she was bloused with a significant volume of intravenous fluids, thus
      causing more distention/discomfort due to her inability to release the fluids.
      The end result is that she is now permanently dependent upon a Foley
      catheter.

      An honest/thorough review of your institution‟s records and interviews of
      her daughter . . . will reveal to you Sumner Regional‟s negligence in this
      matter. It is the family‟s feeling that your Risk Manager Ms. Hanrahan
      chose not to take the above-described matter seriously. This why I am
      reaching out to you in an attempt to resolve this before revealing the details
      to other entities and filing suit.

(Emphasis added.). Plaintiff was not required to file pre-suit notice until June 24, 2014,
four days after the death of Counsel‟s infant son. See Tenn. Code Ann. § 29-26-121(a)(3)
(providing that pre-suit notice must be filed within the statute of limitations); see also
Tenn. Code Ann. § 29-26-121(c) (extending the statute of limitations by 120 days once
pre-suit notice is provided).

       Our Supreme Court has provided the following guidance in determining the
validity of a claim of extraordinary cause:

      The statute does not define extraordinary cause, and the statute‟s legislative
      history does not indicate that the legislature intended to assign a meaning to
      that phrase other than its plain and ordinary meaning. Extraordinary is
      commonly defined as going far beyond the ordinary degree, measure, limit,
      etc.; very unusual; exceptional; remarkable.             One legal scholar,
      commenting on Tennessee Code Annotated sections 29-26-121 and 122,
      has noted that possible examples of extraordinary cause might include
      illness of the plaintiff‟s lawyer, a death in that lawyer‟s immediate family,
      [or] illness or death of the plaintiff‟s expert in the days before the filing
      became necessary.

Myers, 382 S.W.3d at 310-11 (internal citations and quotations omitted). Here, Counsel
explained that his son, born on March 6, 2014, experienced frequent periods of
hospitalization before finally passing on June 20, 2014. We acknowledge Counsel‟s
difficulty in maintaining his practice during the short life of his son and in the days
following the child‟s passing. With the above considerations in mind, we conclude that
the trial court‟s refusal to excuse compliance was not within a range of acceptable

                                           -8-
alternatives given the applicable legal principles and the evidence presented. We reverse
the judgment of the trial court.

                                V.     CONCLUSION

      The judgment of the trial court is reversed, and the case is remanded for further
proceedings. Costs of the appeal are taxed to the appellee, Sumner Regional Medical
Center.


                                                _________________________________
                                                JOHN W. McCLARTY, JUDGE




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