                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT KNOXVILLE
                                    December 9, 2013 Session

     CHARLES J. CHAMBERS EX REL. ODIS M. CHAMBERS v. BRADLEY
                       COUNTY ET AL.

            Extraordinary Appeal from the Circuit Court for Bradley County
                     No. V-11-818    Lawrence H. Puckett, Judge


                No. E2013-01064-COA-R10-CV-FILED-MARCH 28, 2014


In this medical malpractice1 case, the defendants moved to dismiss the complaint with
prejudice on the grounds that plaintiff failed to file, with his complaint, the affidavit of the
person who mailed pre-suit notice to the defendants. The trial court, noting that plaintiff
complied with Tenn. Code Ann. § 29-26-121 (Supp. 2013) in every respect except for filing
the affidavit, and that he filed the affidavit shortly after the complaint, denied the motion to
dismiss on the ground that plaintiff had substantially complied with the statute. We affirm
the judgment of the trial court.

 Tenn. R. App. P. 10 Extraordinary Appeal by Permission; Judgment of the Circuit
                         Court Affirmed; Case Remanded

C HARLES D. S USANO, J R., C.J., delivered the opinion of the Court, in which J OHN W.
M CC LARTY and T HOMAS R. F RIERSON, II, JJ., joined.

Thomas M. Pinckney, Stephen W. Elliott, and Fetlework Balite-Panelo, Nashville,
Tennessee, for the appellant, Bradley Healthcare and Rehabilitation Center.

Ashley L. Ownby, Cleveland, Tennessee, for the appellee, Odis M. Chambers.




        1
          The legislature amended Tenn. Code Ann. § 29-26-121 to replace the term “medical malpractice”
with “health care liability” effective April 23, 2012. See Act of April 23, 2012, ch. 798, 2012 Tenn. Pub.
Acts. The complaint at issue here was filed Oct. 28, 2011. In this opinion, we will refer to the version of
the statute in effect on the date the complaint was filed.
                                          OPINION

                                               I.

        On October 28, 2011, Charles M. Chambers (“plaintiff”) brought this action as next
of kin to Odis M. Chambers (“decedent”) against Bradley County and the Bradley Healthcare
& Rehabilitation Center, a nursing home facility (collectively “defendants”), where decedent
had been a resident. The complaint alleges, in essence, that the defendant nursing home
failed to give the decedent, an elderly woman, enough water, causing her to suffer thirst and
die of dehydration and renal failure:

              During the course of [decedent’s] stay while at Defendant
              Facility, she suffered extreme neglect, [and was] deprived of
              treatment, deprived of necessary care and services, which . . . led
              to her death caused by the employees and/or agents of the
              Defendant Facility failing to monitor changes in her condition,
              failing to follow her care plan, failing to recognize the signs and
              symptoms of dehydration [and] acute renal failure, failure to
              implement intake and output monitoring for a patient at high
              risk for dehydration, failure to monitor dietary necessities, and
              failure to accurately assess respiratory, cardiac, and
              genitourinary status during her residency.

        Because plaintiff’s action states a claim for medical malpractice, plaintiff provided
pre-lawsuit notice to defendants more than 60 days before filing his complaint, as required
by Tenn. Code Ann. § 29-26-121. Shortly after plaintiff filed his complaint, defendants filed
a motion to dismiss, citing plaintiff’s failure to file, with the complaint, an affidavit of the
party mailing the pre-suit notice. Defendants assert that this failure mandates dismissal of
plaintiff’s action with prejudice under Tenn. Code Ann. § 29-26-121. It is undisputed that
plaintiff fully complied with Section 121 in all respects except filing the affidavit with the
complaint. Section 121, the controlling statute in this case, provides, in pertinent part, as
follows:

              (a)(1) Any person . . . 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:

                                              -2-
(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.

(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
(B) Mailing of the notice:

(i) To an individual health care provider . . .; or

(ii) To a health care provider that is a corporation or other
business entity at both the address for the agent for service of
process, and the provider’s current business address . . . .

(4) Compliance with subdivision (a)(3)(B) shall be demonstrated
by filing a certificate of mailing from the United States postal
service stamped with the date of mailing and an affidavit of the
party mailing the notice establishing that the specified notice
was timely mailed by certified mail, return receipt requested. A
copy of the notice sent shall be attached to the affidavit. . . .

(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

                                 -3-
               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.

(Emphasis added.)

        The trial court denied the motion in an order stating, “the affidavit of counsel pursuant
to T.C.A. § 29-26-121 was not filed at the time of the complaint but was later filed by
Plaintiff[] prior to responsive pleadings and therefore complies with the notice requirement
of the Tennessee Medical Malpractice Act.” Defendants timely filed an application for
extraordinary appeal under Tenn. R. App. P. 10, which we granted.

                                               II.

        As stated in our order granting permission for a Rule 10 extraordinary appeal, “the
sole issue on appeal [is] whether the Plaintiff failed to strictly comply with the pre-suit notice
requirement that the affidavit of service of the written notice of claim required by statute be
filed simultaneously with the complaint, such that dismissal of the medical malpractice
claims was warranted.”

                                               III.

       There are no disputed facts pertinent to this appeal. “The trial court’s denial of
defendants’ motions to dismiss involves a question of law, and, therefore, our review is de
novo with no presumption of correctness.” Stevens ex rel. Stevens v. Hickman Cmty.
Health Care Servs., Inc., No. M2012-00582-SC-SO9-CV, 2013 WL 6158000 at *2 (Tenn.,
filed Nov. 25, 2013) (citing Graham v. Caples, 325 S.W.3d 578, 581 (Tenn. 2010)). In
Stevens, the Supreme Court, construing Tenn. Code Ann. § 29-26-121 and addressing the
question of whether a plaintiff may avoid dismissal of his or her complaint by substantial
compliance with the statute’s requirements, observed the following general principles:

               [W]e must interpret the meaning of various provisions of Tenn.
               Code Ann. § 29-26-121. Statutory interpretation is a question
               of law, which we review de novo. Pratcher v. Methodist
               Healthcare Memphis Hospitals, 407 S.W.3d 727, 734 (Tenn.
               2013). When interpreting a statute, our role is to ascertain and
               effectuate the legislature’s intent. Sullivan ex rel. Hightower v.
               Edwards Oil Co., 141 S.W.3d 544, 547 (Tenn. 2004). We must
               not broaden or restrict a statute’s intended meaning. Garrison

                                               -4-
                v. Bickford, 377 S.W.3d 659, 663 (Tenn. 2012) (quoting U.S.
                Bank, N A. v. Tenn. Farmers Mut. Ins. Co., 277 S.W.3d 381,
                386 (Tenn. 2009)). We also presume that the legislature
                intended to give each word of the statute its full effect. In re
                Estate of Trigg, 368 S.W.3d 483, 490 (Tenn. 2012). When
                statutory language is unambiguous, we accord the language its
                plain meaning and ordinary usage. Glassman, Edwards, Wyatt,
                Tuttle & Cox, P.C. v. Wade, 404 S.W.3d 464, 467 (Tenn. 2013).
                Where the statutory language is ambiguous, however, we
                consider the overall statutory scheme, the legislative history, and
                other sources. Mills v. Fulmarque, Inc., 360 S.W.3d 362, 368
                (Tenn. 2012); Colonial Pipeline Co. v. Morgan, 263 S.W.3d
                827, 836 (Tenn. 2008).

2013 WL 6158000 at *2.

                                                   IV.

        The statute formerly known as the Medical Malpractice Act, and currently called the
Health Care Liability Act, contains a number of procedural requirements that a plaintiff must
satisfy to bring an action against a health care provider. Among these “hurdles” is the
requirement of Tenn. Code Ann. § 29-26-121(a), which provides that a claimant “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[.]” Id. at (a)(1). The notice
must include five prescribed items: “(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.” Id. at (a)(2). In this case, plaintiff fully complied with the above
requirements of subsection 121(a).2

        According to Tenn. Code Ann. § 29-26-121(b),

                If a complaint is filed in any court alleging a claim for health
                care liability, the pleadings shall state whether each party has


        2
          Plaintiff also complied with the requirements of Tenn. Code Ann. § 29-26-122, which requires the
filing of a certificate of good faith with the complaint.

                                                   -5-
              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.

Here, plaintiff fully complied with the requirements of subsection 121(b) by stating in his
complaint that he complied with subsection (a), and by providing documentation of the five
items required by subdivision (a)(2) to be included in the pre-suit notice, including a “HIPAA
compliant medical authorization permitting the provider receiving the notice to obtain
complete medical records from each other provider being sent a notice.” Id. at (a)(2)(E).
Plaintiff argues that by his compliance with the requirements of subsections 121(a)(1) and
(2) and (b), he has satisfied the statute, and thus may be allowed to have his claim heard, and
defendants be required to file an answer.

       Defendants respond, however, that plaintiff failed to comply with an additional
requirement found in subsection 121(a)(3) and (4), which provides as follows in pertinent
part:

              (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

              (B) Mailing of the notice:

              (i) To an individual health care provider . . .; or

              (ii) To a health care provider that is a corporation or other
              business entity at both the address for the agent for service of
              process, and the provider’s current business address . . . .

              (4) Compliance with subdivision (a)(3)(B) shall be demonstrated
              by filing a certificate of mailing from the United States postal
              service stamped with the date of mailing and an affidavit of the

                                              -6-
              party mailing the notice establishing that the specified notice
              was timely mailed by certified mail, return receipt requested. A
              copy of the notice sent shall be attached to the affidavit. . . .

Tenn. Code Ann. § 29-26-121(a)(3),(4) (emphasis added).

        In this case, plaintiff filed with the complaint a certificate of mailing from the U.S.
Postal Service stamped with the date of mailing, but did not include an affidavit of the party
mailing the notice. Plaintiff thereafter remedied this shortcoming by filing the affidavit
before defendants filed any responsive pleading. Defendants argue that plaintiff’s failure to
file the affidavit at the time of filing the complaint mandates dismissal of his complaint with
prejudice. The trial court disagreed, holding in effect that the plaintiff substantially complied
with the statute.

       In Stevens, the Supreme Court recently addressed the concept of “substantial
compliance” with the provisions of Section 121. The High Court provided the following
principles that govern our analysis:

              The plain language of Tenn. Code Ann. § 29-26-121(a)(2)
              provides that each of the aforementioned requirements “shall”
              be included in a plaintiff’s written notice to potential defendants.
              In Myers [v. AMISUB (SFH), Inc., 382 S.W.3d 300, 309
              (Tenn. 2012)], we held that “[t]o determine whether the use of
              the word ‘shall’ in a statute is mandatory or merely directory, we
              look to see ‘whether the prescribed mode of action is of the
              essence of the thing to be accomplished.’ ” As we explained in
              Jones v. Prof’l Motorcycle Escort Serv., L.L.C., the touchstone
              of this analysis is whether a party’s procedural error resulted in
              actual prejudice to an opposing party. 193 S.W.3d 564, 571
              (Tenn. 2006) (“failure to conform to technical requirements is
              not fatal where allowing such amendment does not prejudice the
              defendant and promotes the interests of justice”). Accordingly,
              if strict compliance with a particular statutory provision is
              essential to avoid prejudicing an opposing litigant, the
              prescribed mode of action will be mandatory. Id. See also
              Myers, 382 S.W.3d at 309 (holding that plaintiffs must strictly
              comply with 29-26-121(a)(1) because “[w]ithout the notice
              required by Tennessee Code Annotated section 29-26-121[a][1],
              the defendants were not apprised that Mr. Myers continued to
              assert a claim against them and that a suit would be filed and

                                               -7-
              were therefore deprived of the notice required by Tennessee
              Code Annotated Section 29-26-121”); Tenn. Code Ann. § 29-
              26-122(c) (mandating dismissal with prejudice when a plaintiff
              has failed to offer proof of a good faith claim prior to bringing
              defendants into litigation).

                                    *       *         *

              A plaintiff’s less-than-perfect compliance with Tenn. Code Ann.
              § 29-26-121(a)(2)(E) . . . should not derail a healthcare liability
              claim. Non-substantive errors and omissions will not always
              prejudice defendants by preventing them from obtaining a
              plaintiff’s relevant medical records. Thus, we hold that a
              plaintiff must substantially comply, rather than strictly comply,
              with the requirements of Tenn. Code Ann. § 29-26-121(a)(2)(E).

                                    *       *         *

              In determining 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, 2013 WL 6158000 at *3,4,5 (internal citation omitted). We initially note that
although the Stevens Court’s holding was specifically directed at section 121(a)(2)(E), its
rationale and analysis are equally applicable here. We therefore look to the extent and
significance of plaintiff’s omission of filing the affidavit with the complaint, and whether
defendants were prejudiced by this noncompliance. Id. at *5; Jones, 193 S.W.3d at 572.

        Defendants suffered no prejudice as a result of plaintiffs’ filing – after the complaint
was filed – of the affidavit of the party mailing the notice instead of filing it simultaneously
with the complaint. Defendants do not deny that they received timely pre-suit notice
containing all of the items required by the statute. The purpose of the statute and the essence
of the thing to be accomplished – pre-suit notice to the defendants – has been satisfied here.
See Myers, 382 S.W.3d at 309 (“The essence of Tennessee Code Annotated section 29-26-
121




                                                -8-
is that a defendant be given notice of a medical malpractice claim before suit is filed.”)3 ;
Foster v. Chiles, No. E2012-01780-COA-R3-CV, 2013 WL 3306594 at *7 (Tenn. Ct. App.
E.S., filed June 27, 2013) (perm. app. granted, Nov. 13, 2013) (Construing section 121 and
observing that “[h]ere ‘the essence of the thing to be accomplished’ is the giving of the
notice, not the attaching of evidence of same to the complaint.”). Moreover, the essence of
the statute’s purpose to require proof of service was satisfied in this case as well. As noted,
plaintiff attached a certificate of mailing from the U.S. Postal Service indicating the date of
mailing and establishing that the specified notice was timely mailed by certified mail, return
receipt requested. Under these circumstances, defendants can demonstrate no prejudice by
a holding that plaintiff substantially complied with Section 121 and by the trial court’s
allowance of a filing of the affidavit after the filing of the complaint. See Jones, 193 S.W.3d
at 572; Henry v. Goins, 104 S.W.3d 475, 482 (Tenn. 2003) (“Simply having to proceed to
trial does not constitute prejudice, nor does the mere passage of time.”).

         The Supreme Court stated in Jones, and reaffirmed in Stevens, that “failure to
conform to technical requirements is not fatal where allowing [an] amendment does not
prejudice the defendant and promotes the interests of justice.” Stevens, 2013 WL 6158000
at *3 (quoting Jones, 193 S.W.3d at 571). Tennessee courts have long recognized that the
interests of justice are promoted by providing injured persons an opportunity to have their
lawsuits heard and evaluated on the merits. The Supreme Court observed in 1937 that “[w]e
have stated repeatedly that it is the policy of this court to have controversies between litigants
determined upon their merits.” Fiske v. Grider, 106 S.W.2d 553, 555 (Tenn. 1937); see also
Henry, 104 S.W.3d at 481 (“in the interests of justice, courts express a clear preference for
a trial on the merits”); Henley v. Cobb, 916 S.W.2d 915, 916 (Tenn. 1996) (“It is well settled
that Tennessee law strongly favors the resolution of all disputes on their merits”); Childress
v. Bennett, 816 S.W.2d 314, 316 (Tenn. 1991) (“it is the general rule that courts are reluctant
to give effect to rules of procedure which seem harsh and unfair, and which prevent a litigant
from having a claim adjudicated upon its merits”); Tenn. Dep’t of Human Servs. v. Barbee,
689 S.W.2d 863, 866 (Tenn. 1985) (“the interests of justice are best served by a trial on the
merits”); Stevens, 2013 WL 6158000 at *8 (quoting and reaffirming general rule stated in
Childress). It is clear, under these authorities, that the interests of justice would not be
promoted by dismissing plaintiff’s complaint for failing to include the requisite affidavit with
the complaint. Indeed, to do so would be to give effect to a procedural technicality in a

        3
          We recognize that the Supreme Court added further nuance to this statement in Stevens, recognizing
that section 121(a) “establishes six separate requirements that serve related yet ultimately distinct goals” and
observing that the purpose of section 121(a)(2)(E) – requiring a HIPAA compliant medical authorization –
“serves to equip defendants with the actual means to evaluate the substantive merits of a plaintiff’s claim by
enabling early access to a plaintiff’s medical records.” 2013 WL 6158000 at *3. Still, the “essence of the
thing to be accomplished” by the statutory provisions at issue here is effective pre-suit notice, and the
provision of proof that such notice has been given.

                                                      -9-
manner both “harsh and unfair.” Stevens, 2013 WL 6158000 at *8; Childress, 816 S.W.2d
at 316.

       This Court recently addressed an argument quite similar to the one presented here –
a defendant hospital’s assertion that the plaintiff “did not strictly comply with all the
provisions of Tenn. Code Ann. § 29-26-121, and, as a consequence, her complaint should be
dismissed” – in Hinkle v. Kindred Hospital, No. M2010-02499-COA-R3-CV, 2012 WL
3799215 at *6 (Tenn. Ct. App. M.S., filed Aug. 31, 2012) (perm. app. denied, Dec. 10,
2013). Rejecting this argument, we stated:

             The hospital received actual notice. It seems to us that the
             technical requirements in the statute are intended to provide just
             that: notice of the claim. Any arguments regarding the method
             of giving notice would be relevant where the defendant asserts
             no notice was received. They are not, however, where there is
             no dispute that the defendant received actual notice.

             Accordingly, we conclude that [plaintiff] complied with the
             notice requirements of the statute as to the defendant hospital.

                                   *      *          *

             We cannot conclude that the legislature intended that each and
             every technical, but not material, deviation from the language of
             the statute could only be excused or corrected by a showing of
             extraordinary cause. Dismissal of a meritorious complaint even
             where the defendant had actual notice and allowing a defendant
             to participate in discovery and negotiations while waiting to
             raise technical objections is not consistent with the purposes of
             the statutory requirements for filing medical malpractice
             lawsuits.

             The defendants’ argument elevates form over substance and
             conflates means with ends. The aim of Tenn. Code Ann. § 29-
             26-121 is to make sure that prospective defendants receive
             adequate and timely notice of possible claims against them.
             Similarly, the certificate of good faith requirement is designed
             to eliminate lawsuits where the claims have not been vetted by
             an expert.



                                              -10-
              If we were to accept the defendants’ argument at face value, we
              would be forced to conclude that any deviation from the strict
              letter of Tenn. Code Ann. § 29-26-121, no matter how small,
              would compel the courts to dismiss any medical malpractice
              claim asserted, no matter how meritorious. This would negate
              the strong preference of our law to resolve claims on their merits
              whenever possible.

Id. at *7, 15; accord Haley v. State, No. E2012-02484-COA-R3-CV, 2013 WL 5431998 at
*10-11 (Tenn. Ct. App. E.S., filed Sept. 25, 2013). These observations apply with equal
force here.

        Defendants rely upon Thurmond v. Mid-Cumberland Infectious Disease
Consultants, PLC, No. M2012-02270-COA-R3-CV, 2013 WL 1798960 (Tenn. Ct. App.
M.S., filed Apr. 25, 2013) (perm. app. granted, Aug. 13, 2013). In Thurmond, the Middle
Section of this Court affirmed the dismissal of a complaint where the plaintiff inadvertently
failed to attach the proof of service of pre-suit notice and the affidavit of the party mailing
the notice to the complaint. Id. at *3. We note that Thurmond was decided before the
Supreme Court decided and released Stevens, so the Thurmond Court did not have the
benefit of the Stevens holding allowing substantial compliance with Section 121. To the
extent that Thurmond conflicts with our holding today, we express our disagreement with
that opinion.

        In summary, we hold that a plaintiff must substantially comply, rather than strictly
comply, with the requirements of Tenn. Code Ann. § 29-26-121(a). Where a plaintiff has
provided sufficient notice to the defendant under the statute and fails to comply with all the
strictures of section 121, as here, “there is no reason why the court should not allow
plaintiff[] to rectify [the] oversight by filing the required proof late.” Foster, 2013 WL
3306594 at *6. In the present case, plaintiff substantially complied with the statute, and the
trial court did not err in allowing plaintiff to file the affidavit of the party mailing pre-suit
notice after the complaint was filed.

                                               V.

       The judgment of the trial court is affirmed and the case is remanded, pursuant to
applicable law, for further proceedings. Costs on appeal are assessed to the appellants,
Bradley County and Bradley Healthcare & Rehabilitation Center.




                                              -11-
_____________________________________
CHARLES D. SUSANO, JR., CHIEF JUDGE




 -12-
