                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                              November 24, 2014 Session

          LINDA DENNIS, ET AL. v. DR. ROBERT G. SMITH, ET AL.

                   Appeal from the Circuit Court for Knox County
                     No. 3-131-12    Deborah C. Stevens, Judge


                   No. E2014-00636-COA-R3-CV-MARCH 31, 2015


Linda Dennis and Creed Dennis (“Plaintiffs”) filed a healthcare liability action against Dr.
Robert G. Smith (“Defendant”) and others. Defendant filed a motion to dismiss. After a
hearing, the Circuit Court for Knox County (“the Trial Court”) dismissed Plaintiffs’ claims
after finding and holding, inter alia, that Plaintiffs had failed to comply with Tenn. Code
Ann. §§ 29-26-121 and 29-26-122. Plaintiffs appeal the dismissal of their claims to this
Court. We find and hold that because Plaintiffs failed to comply with Tenn. Code Ann. § 29-
26-122, their action was subject to dismissal with prejudice upon motion. We, therefore,
affirm the Trial Court’s dismissal of Plaintiffs’ claims.

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

D. M ICHAEL S WINEY, J., delivered the opinion of the Court, in which C HARLES D. S USANO,
J R., C.J., and J OHN W. M CC LARTY, J., joined.

Joyce W. Cooper, Michelle Owens, and Lynn Agee, Nashville, Tennessee, for the appellants
Linda Dennis and Creed Dennis.

Hanson R. Tipton, and Courtney Epps Read, Knoxville, Tennessee, for the appellee, Dr.
Robert G. Smith.
                                               OPINION

                                              Background

               Plaintiffs filed a health care liability action against Defendant and Parkwest
Medical Center1 on March 16, 2012. Defendant answered the complaint and filed a motion
to dismiss alleging, among other things, that Plaintiffs had failed to comply with Tenn. Code
Ann. §§ 29-26-121 and 29-26-122. Specifically, Defendant alleged that Plaintiffs had failed
to comply with Tenn. Code Ann. § 29-26-121 because they failed to attach a HIPAA
compliant medical authorization form to the notice letter, failed to attach a list of all health
care providers to whom notice was given, and failed to list the address of the claimant
authorizing the notice. Defendant further alleged that Plaintiffs had failed to comply with
Tenn. Code Ann. § 29-26-122 because they failed to file a certificate of good faith executed
by Plaintiffs or Plaintiffs’ counsel and failed to disclose the number of prior violations
pursuant to Tenn. Code Ann. § 29-26-122(d)(4).

               Plaintiffs responded to Defendant’s motion to dismiss by filing a motion for
summary judgment asserting, in pertinent part, that Plaintiffs had provided a HIPAA
compliant authorization form with the notice and a list of all defendants receiving notice, that
the address of the claimant is required only if the notice is being sent by someone other than
the patient, that Plaintiffs filed with their complaint a statement of their expert that exceeded
the requirements of Tenn. Code Ann. § 29-26-122, and that neither Plaintiffs nor their
counsel have any prior violations “so there is nothing to disclose anyway.”

                After a hearing the Trial Court entered its order on March 12, 2014 dismissing
Plaintiffs’ claims with prejudice after finding and holding, inter alia, (1) that Plaintiffs had
failed to comply with Tenn. Code Ann. § 29-26-121(b) and had failed to show extraordinary
cause to excuse the lack of compliance, and (2) that Plaintiffs had failed to comply with
Tenn. Code Ann. § 29-26-122(a)(1) and § 29-26-122(d)(4) and failed to show extraordinary
cause to excuse the lack of compliance. Plaintiffs appeal the dismissal of their suit to this
Court.

                                               Discussion

             Although not stated exactly as such, Plaintiffs raise two issues on appeal: 1)
whether the Trial Court erred in dismissing Plaintiffs’ claims based upon Plaintiffs’ failure


        1
          Plaintiffs filed a notice of nonsuit as to Parkwest Medical Center, and the Trial Court entered an
order dismissing Parkwest Medical Center from the suit on September 24, 2013. Parkwest Medical Center
is not involved in this appeal.

                                                    -2-
to comply with Tenn. Code Ann. § 29-26-122, and 2) whether the Trial Court erred in
dismissing Plaintiffs’ claims based upon Plaintiffs’ failure to comply with Tenn. Code Ann.
§ 29-26-121.

               As our determination regarding whether the Trial Court erred in dismissing
Plaintiffs’ claims with prejudice based upon Plaintiffs’ failure to comply with Tenn. Code
Ann. § 29-26-122 is dispositive of the case, we will address this issue first. As our Supreme
Court has instructed:

               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 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 [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. 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

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       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 [sic] of the plaintiff.
       Lind v. Beaman Dodge, Inc., 356 S.W.3d 889, 894 (Tenn. 2011).

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

                 Defendant filed a motion to dismiss alleging, as pertinent, that Plaintiffs failed
to file a certificate of good faith in compliance with Tenn. Code Ann. §§ 29-26-122(a) and
29-26-122(d)(4). In pertinent part, Tenn. Code Ann. § 29-26-122(a) provides:

       (a) In any health care liability action in which expert testimony is required by
       § 29-26-115, the plaintiff or plaintiff’s counsel shall file a certificate of good
       faith with the complaint. If the certificate is not filed with the complaint, the
       complaint shall be dismissed, as provided in subsection (c), absent a showing
       that the failure was due to the failure of the provider to timely provide copies
       of the claimant’s records requested as provided in § 29-26-121 or
       demonstrated extraordinary cause. The certificate of good faith shall state that:

              (1) The plaintiff or plaintiff’s counsel has consulted with one (1) or
       more experts who have provided a signed written statement confirming that
       upon information and belief they:

                                              ***

              (2) The plaintiff or plaintiff’s counsel has consulted with one (1) or
       more experts who have provided a signed written statement confirming that
       upon information and belief they: . . . .

Tenn. Code Ann. § 29-26-122(a) (2012). Tennessee Code Ann. § 29-26-122(c) provides, in
pertinent part:

       (c) The failure of a plaintiff to file a certificate of good faith in compliance
       with this section shall, upon motion, make the action subject to dismissal with
       prejudice. . . .




                                                -4-
Tenn. Code Ann. § 29-26-122(c) (2012). As pertinent, Tenn. Code Ann. § 29-26-122(d)
provides:

       (4) A certificate of good faith shall disclose the number of prior violations of
       this section by the executing party.

Tenn. Code Ann. § 29-26-122(d)(4) (2012).

               Plaintiffs concede in their brief on appeal that instead of filing a certificate of
good faith in compliance with the statute, Plaintiffs filed a statement signed by their expert.
Plaintiffs argue that because they filed something from their expert rather than a certificate
of good faith of the plaintiffs or plaintiffs’ counsel, that they ‘over-complied’ by providing
more information than the statute requires and, because of this, their lack of compliance with
the mandatory language in the statute should be excused.

              There is no question, however, that Plaintiffs failed to provide a certificate of
good faith that complied with the statute and that disclosed the number of prior violations by
the person executing the certificate of good faith. Our Supreme Court has instructed:

       Sections 29-26-121 and 122 respectively mandate that pre-suit notice be given
       and that a certificate of good faith be filed. Because these requirements are
       mandatory, they are not subject to satisfaction by substantial compliance.
       Substantial compliance is sufficient only when the statute’s requirements are
       directory, not mandatory.

                                              ***

               The requirements of these statutes are precisely stated. The statutes
       provide clear guidance and detailed instruction for meeting those requirements,
       and it is not our prerogative to rewrite the statutes.

Myers, 382 S.W.3d at 310 (citations omitted). Thus, our Supreme Court has ruled that filing
a certificate of good faith is mandatory.

               As Plaintiffs failed to file a certificate of good faith, the fact that they filed
something else that provided other, or more, information is immaterial. Furthermore, as this
Court held in Vaughn v. Mountain States Health Alliance, disclosure of the number of prior
violations by the person executing the certificate of good faith pursuant to Tenn. Code Ann.
§ 29-26-122(d)(4) also is mandatory and failure to make this disclosure “make[s] the action
subject to dismissal with prejudice. . .,” pursuant to Tenn. Code Ann. § 29-26-122(c).

                                               -5-
Vaughn v. Mountain States Health Alliance, No. E2012-01042-COA-R3-CV, 2013 Tenn.
App. LEXIS 159, at **21-22 (Tenn. Ct. App. March 5, 2013), Rule 11 appl. perm. appeal
denied May 15, 2014. What Plaintiffs in essence are asking this Court to do is overrule our
Supreme Court, something we cannot and will not attempt to do.

                Plaintiffs’ failure to comply with Tenn. Code Ann. § 29-26-122 made their
action subject to dismissal with prejudice upon motion. We, therefore, find no error in the
Trial Court’s dismissal of Plaintiffs’ claims with prejudice. Our determination with regard
to this issue renders moot the necessity of considering whether the Trial Court erred in also
dismissing Plaintiffs’ claims for failure to comply with Tenn. Code Ann. § 29-26-121.

                                        Conclusion

              The judgment of the Trial Court is affirmed, and this cause is remanded to the
Trial Court for collection of the costs below. The costs on appeal are assessed against the
appellants Linda Dennis and Creed Dennis, and their surety.




                                                   _________________________________
                                                   D. MICHAEL SWINEY, JUDGE




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