                IN THE COURT OF APPEALS OF TENNESSEE
                             AT JACKSON
                                February 19, 2013 Session

CHARLES WEBB and EVANGELINE WEBB, Individually and as Husband
         and Wife v. CHARLES ROBERSON, M.D., ET AL.

           Interlocutory Appeal from the Circuit Court for Shelby County
                    No. CT-004737-10     Robert S. Weiss, Judge


                 No. W2012-01230-COA-R9-CV - Filed April 17, 2013


In this interlocutory appeal, Plaintiffs challenge the constitutionality of Tennessee Code
Annotated section 29-26-121, which requires a medical malpractice claimant to provide
certain notice sixty days prior to filing suit. We conclude that Tennessee Code Annotated
section 29-26-121 is not an unconstitutional infringement upon the courts’ rule-making
authority, that it is not preempted by HIPAA, and that it does not violate the equal protection
and due process provisions of state and federal law. Affirmed and Remanded.


 Tenn. R. App. P. 9; Interlocutory Appeal; Judgment of the Circuit Court Affirmed
                                   and Remanded

A LAN E. H IGHERS, P.J., W.S., delivered the opinion of the Court, in which D AVID R. F ARMER,
J., and J. S TEVEN S TAFFORD, J., joined.

Louis P. Chiozza, Jr., Memphis, Tennessee; Steven R. Walker, Oakland, TN, for the
appellants, Charles Webb and Evangeline Webb

Marty R. Phillips, John O. Alexander, Memphis, Tennessee, for the appellees, Charles
Roberson, M.D. and Charles Roberson, M.D., P.C.

Robert E. Cooper, Jr., Attorney General and Reporter, William E. Young, Solicitor General,
Stephanie A. Bergmeyer, Assistant Attorney General, Nashville, TN, for the appellee, State
of Tennessee

Jennifer S. Harrison, Memphis, TN, for the appellees, Sabrina Greer, R.N., Brandy Madden,
R.N., Jerry Ray, R.N., Tina Cox, R.N., Michael Maharrey, R.N. and AMISUB (SFH), Inc.,
d/b/a St. Francis Hospital
                                              OPINION

                              I. F ACTS & P ROCEDURAL H ISTORY

       On September 23, 2010, Charles Webb and his wife, Evangeline Webb, (collectively
“Plaintiffs”) filed a medical malpractice Complaint against numerous defendants, including
emergency room physician Charles Roberson, M.D. and Charles Roberson, M.D., P.C.;1
nurses Sabrina Greer, Brandy Madden, Jerry Ray, Tina Cox, and Michael Maharrey
(“Nurses”); and AMISUB (SFH), Inc. and AMISUB (SFH), Inc. d/b/a Saint Francis Hospital
(“Hospital”).2 The Complaint alleged the negligent failure to timely diagnose and treat Mr.
Webb’s cancer on or about July 26, 2009. Also on September 23, 2010, Plaintiffs filed their
Certificate of Good Faith in accordance with Tennessee Code Annotated section 29-26-122.

      Charles Roberson, M.D. and Charles Roberson, M.D., P.C. (“Dr. Roberson”) filed an
Answer on April 12, 2011, generally denying negligence and asserting that he was not
provided with the sixty-day pre-suit notice required by Tennessee Code Annotated section
29-26-121. Specifically, Dr. Roberson alleged that he received a notice letter on or about
September 16, 2010–seven days prior to the filing of Plaintiffs’ Complaint.

      On April 21, 2011, the Hospital and the Nurses filed a joint Answer also generally
denying any negligence.

        On August 10, 2011, Dr. Roberson filed a Motion for Summary Judgment based upon
Plaintiffs’ alleged failure to comply with Tennessee Code Annotated section 29-26-121. Dr.
Roberson claimed that Plaintiffs had failed to provide him with notice of the potential claim
sixty days prior to the filing of the Complaint, that the statute of limitations, therefore, was
not extended for a period of one hundred twenty days, and, thus, that the September 23, 2010
Complaint was filed outside of the one-year statute of limitations. Additionally, Dr.
Roberson claimed that Plaintiffs’ Complaint failed to comply with section 29-26-121 because
it had no attached affidavit stating that timely notice had been delivered and to whom, and
because it failed to include the information required within the sixty-day notice.

        On September 2, 2011, the Nurses also filed a Motion to Dismiss based upon
Plaintiffs’ alleged failure to comply with the requirements of section 29-26-121. The Nurses


        1
          In his Answer to Plaintiffs’ Complaint, Dr. Roberson states “Charles Roberson, M.D., P.C. is not
a legal entity and, therefore, is not a properly named defendant in this action.”
        2
        On appeal, the Nurses and the Hospital adopted the briefs filed by Dr. Roberson and the State of
Tennessee.

                                                   -2-
claimed that the Hospital was served with a notice letter on July 21, 2010, but that the letter
“was not served on the individually named nurses and the notice letter that was served . . .
did not list the individually named nurses as providers being sent notice.” Additionally, the
Nurses maintained that the July 21, 2010 notice letter failed to include the “HIPAA
compliant medical authorization permitting the provider receiving the notice to obtain
complete medical records from each other provider being sent a notice” as required by
section 29-26-121(a)(2)(E). Instead, according to the nurses, Plaintiffs “provided HIPAA
compliant medical authorizations allowing all defendants other than these individually named
nurses to obtain the plaintiff’s medical records.”

        In response to Dr. Roberson’s Motion for Summary Judgment, Plaintiffs conceded
that they had unsuccessfully attempted to personally serve Dr. Roberson with a pre-suit
notice letter dated July 22, 2010, and that a letter was not personally delivered to him until
September 16, 2010–seven days prior to the filing of their Complaint. However, Plaintiffs
argued that service of the July 22, 2010 letter was attempted upon Dr. Roberson “several
times at St. Francis Hospital; however, hospital security would not provide a work schedule
for Dr. Roberson, and was uncooperative in assisting with service.” Additionally, Plaintiffs
contended that “T.C.A. § 29-26-121 and the entire Tennessee Medical Malpractice Act are
unconstitutional.” Likewise, in response to the Nurses’s Motion to Dismiss, Plaintiffs
challenged the constitutionality of section 29-26-121 and the entire Medical Malpractice Act.
Due to the constitutional claims, the State of Tennessee was allowed to intervene in the
matter and it filed a memorandum of law to defend the constitutionality of section 29-26-
121,3 which Dr. Roberson and the Nurses adopted.

        Following a hearing, the trial court granted Dr. Roberson’s Motion for Summary
Judgment. The court concluded that the Medical Malpractice Act is constitutional and that
Plaintiffs failed to comply with the requirements of section 29-26-121. Specifically, the
court found that Dr. Roberson was not served with notice until September 16, 2010, and
therefore that Plaintiffs’ Complaint was filed beyond the one-year statute of limitations for
medical malpractice claims. Additionally, the trial court found that Plaintiffs had failed to
file an affidavit along with their Complaint establishing delivery under section 29-26-121 and
that their Complaint failed to include the information required within the sixty-day notice.




        3
        The State argued that Plaintiffs lack standing to challenge the constitutionality of the entire Medical
Malpractice Act.

                                                     -3-
        Following a second hearing, the trial court granted summary judgment4 in favor of the
Nurses. Again, the trial court concluded that the Medical Malpractice Act is constitutional,
and it further found that the Nurses had not been served with pre-suit notice of a potential
claim, that the notice which was provided did not give the Nurses a HIPAA compliant
medical authorization to obtain medical records from other providers receiving notice of the
potential claim, and that Plaintiffs’ Complaint failed to include the information required
within the sixty-day notice.

        Plaintiffs filed a Motion to Alter or Amend claiming that the trial court had erred in
considering “at least two aspects” of section 29-26-121’s constitutionality under a rational
basis test rather than under strict scrutiny. The trial court denied Plaintiffs’ Motion to Alter
or Amend. Plaintiffs then successfully moved the trial court for permission to pursue an
interlocutory appeal, and on August 20, 2012, this Court entered an Order granting Plaintiffs’
application for an interlocutory appeal.


                                        II.    I SSUES P RESENTED

        Plaintiffs raised four issues5 in their Application for Interlocutory Appeal:

1.      Whether Tennessee Code Annotated section 29-26-121 is an unconstitutional
        infringement upon the rule-making authority of the courts, and particularly upon
        Tennessee Rule of Civil Procedure 3;

2.      Whether the Health Insurance Portability and Accountability Act (“HIPAA”)
        preempts Tennessee Code Annotated section 29-26-121;

3.      Whether Tennessee Code Annotated section 29-26-121 violates the equal protection
        and due process provisions of state and federal law; and


        4
        Apparently, the trial court concluded that the Nurse’s motion to dismiss had been converted to a
motion for summary judgment.
        5
          In their appellate brief, Plaintiffs attempt to raise two additional issues: “whether the Trial Court
Erred in Granting Summary Judgment to Dr. Roberson, and Whether the Trial Court Should Have Granted
Plaintiffs’ Motion to Dismiss without Prejudice pursuant to Tenn. R. Civ. P. 41.01(1).” However, because
these additional issues were not raised in Plaintiffs’ applications for interlocutory appeal, nor were they
accepted for consideration by this Court, they will not be addressed. See Montcastle v. Baird, 723 S.W.2d
119, 122 (Tenn. Ct. App. 1986); see also Milligan v. George, No. 01A01-9609-CH-00406, 1997 WL 39138,
at *3 (Tenn. Ct. App. July 9, 1997) (scope of interlocutory appeal is restricted to issues certified by the trial
court and accepted by appellate court).

                                                      -4-
4.     Whether the entire Tennessee Medical Malpractice Act is unconstitutional.

For the following reasons, we conclude that Tennessee Code Annotated section 29-26-121
is not an unconstitutional infringement upon the courts’ rule-making authority, that it is not
preempted by HIPAA, and that it does not violate the equal protection and due process
provisions of state and federal law. The case is remanded for further proceedings consistent
with this opinion.


                                 III. S TANDARD OF R EVIEW

       “Issues of constitutional interpretation are questions of law, which we review de novo
without any presumption of correctness given to the legal conclusions of the courts below.”
Waters v. Farr, 291 S.W.3d 873, 882 (Tenn. 2009) (citing Colonial Pipeline v. Morgan, 263
S.W.3d 827, 836 (Tenn. 2008)). When evaluating the constitutionality of a statute, we must
begin with the presumption that the statute is constitutional, and we must uphold the statute’s
constitutionality “wherever possible.” Id. (citing State v. Pickett, 211 S.W.3d 696, 700
(Tenn. 2007)).

       The issues presented in this interlocutory appeal involve a facial challenge to a statute,
“meaning they involve a claim ‘that the statute fails a constitutional test and should be found
invalid in all applications.’” Jackson v. HCA Health Servs. of Tenn., Inc., 383 S.W.3d 497,
500 (Tenn. Ct. App. 2012) (quoting Waters, 291 S.W.3d at 921). Our Supreme Court has
explained:

       A facial challenge to a statute is the most difficult challenge to mount
       successfully. The presumption of a statute’s constitutionality applies with
       even greater force when a facial challenge is made. Accordingly, the
       challenger must establish that no set of circumstances exists under which the
       statute would be valid. Stated another way, the challenger must demonstrate
       that the law cannot be constitutionally applied to anyone.

       Courts considering a facial challenge to a statute should proceed with caution
       and restraint because holding a statute facially unconstitutional may result in
       unnecessary interference with legitimate governmental functions.
       Accordingly, the courts view facial invalidity as “manifestly strong medicine”
       and invoke it sparingly and only as a last resort.

       There are at least three reasons for the courts’ reticence to invalidate statutes
       on their face. First, claims of facial invalidity often rest on speculation and

                                               -5-
       thus run the risk of the “premature interpretation of statutes on the basis of
       factually barebones records.” Second, facial challenges “run contrary to the
       fundamental principle of judicial restraint” by inviting the courts to “formulate
       a rule of constitutional law broader than is required by the precise facts to
       which it is to be applied.” Third, “facial challenges threaten to short circuit the
       democratic process by preventing laws embodying the will of the people from
       being implemented in a manner consistent with the Constitution.”

       Thus, a successful facial constitutional challenge results in the wholesale
       invalidation of the statute. While passing on the validity of a statute wholesale
       may be efficient in the abstract, any gain is often offset by losing the lessons
       taught by the particular. For this reason, many courts view “as applied”
       challenges as the “basic building blocks” of constitutional adjudication. “As
       applied” challenges are preferred because, if they are successful, they do not
       render the entire statute completely inoperative. In some circumstances, the
       courts can fulfill the legislature’s intent by prohibiting only the
       unconstitutional applications of a statute, while allowing the State to enforce
       the statute in other circumstances.

Id. (quoting Waters, 291 S.W.3d at 921-23) (internal citations and footnotes omitted in
quotation).

                                       IV . D ISCUSSION

               A. Constitutionality of Tennessee Medical Malpractice Act

         In this interlocutory appeal, Plaintiffs attempt to challenge the constitutionality of
both a specific section of the Tennessee Medical Malpractice Act–section 29-26-121–and the
entire Tennessee Medical Malpractice Act, Tennessee Code Annotated section 29-26-115,
et seq. (the “Act”).

       “It is well-settled in Tennessee that ‘courts do not decide constitutional questions
unless resolution is absolutely necessary to determining the issues in the case and
adjudicating the rights of the parties.’” Waters, 291 S.W.3d at 882 (quoting State v. Taylor,
70 S.W.3d 717, 720 (Tenn. 2002)); see also Three Affiliated Tribes of the Fort Berthold
Reservation v. Wold Eng’g, P.C., 467 U.S. 138, 157, 104 S.Ct. 2267, 2279, 81 L.Ed.2d 113
(1984) (“It is a fundamental rule of judicial restraint . . . that this Court will not reach
constitutional questions in advance of the necessity of deciding them.”). In this case,
Plaintiffs face dismissal of their Complaint due to their alleged failure to comply with the
requirements of section 29-26-121; the entirety of the Act is in no way implicated by the facts

                                               -6-
under consideration here. As such, we find it unnecessary, and thus improper, for this Court
to consider the constitutionality of the Act as a whole.

            B. Constitutionality of Tennessee Code Annotated section 29-26-121

        We begin by looking at the statute under attack–section 29-26-121–which provides
in relevant part:

        (a)(1) Any person, or that person's authorized agent, asserting a potential claim
        for medical malpractice6 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 medical malpractice 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.
        (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


        6
          This Court is aware that, effective April 23, 2012, the TMMA was amended, and the words “health
care liability” were substituted for the words “medical malpractice” throughout the statute. 2012 Tenn. Pub.
Acts, ch. 798, § 1-59. In this opinion, however, we cite to the 2009 version in effect at the time Plaintiffs
filed suit.

                                                    -7-
       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:

               (i) To an individual health care provider at both the address
               listed for the provider on the Tennessee department of health
               web site and the provider's current business address, if different
               from the address maintained by the Tennessee department of
               health; provided, that, if the mailings are returned undelivered
               from both addresses, then, within five (5) business days after
               receipt of the second undelivered letter, the notice shall be
               mailed in the specified manner to the provider's office or
               business address at the location where the provider last provided
               a medical service to the patient; 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, if different
               from that of the agent for service of process; provided, that, if
               the mailings are returned undelivered from both addresses, then,
               within five (5) business days after receipt of the second
               undelivered letter, the notice shall be mailed in the specified
               manner to the provider's office or business address at the
               location where the provider last provided a medical service to
               the patient.

(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. It is not
necessary that the addressee of the notice sign or return the return receipt card
that accompanies a letter sent by certified mail for service to be effective.
(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 require additional evidence of compliance to determine if the provisions
of this section have been met. The court has discretion to excuse compliance

                                        -8-
      with this section only for extraordinary cause shown.
      (c) When notice is given to a provider as provided in this section, the
      applicable statutes of limitations and repose shall be extended for a period of
      one hundred twenty (120) days from the date of expiration of the statute of
      limitations and statute of repose applicable to that provider. . . .
      (d)(1) All parties in an action covered by this section shall be entitled to obtain
      complete copies of the claimant's medical records from any other provider
      receiving notice. A party shall provide a copy of the specified portions of the
      claimant's medical records as of the date of the receipt of a legally authorized
      written request for the records within thirty (30) days thereafter. The claimant
      complies with this requirement by providing the providers with the authorized
      HIPAA compliant medical authorization required to accompany the notice.
      The provider may comply with this section by:
             (A) Mailing a copy of the requested portions of the records with a
             statement for the cost of duplication of the records to the individual
             requesting the records;
             (B) Informing the individual requesting the records that the records will
             be mailed only upon advance payment for the records for the stated cost
             of the records, calculated as provided in § 63-2-102. Any request for
             advance payment must be made in writing twenty (20) days after the
             receipt of the request for medical records. The provider must send the
             records within three (3) business days after receipt of payment for the
             records; or
             (C) Fulfilling such other method that the provider and the individual
             requesting the records agree to in writing.
      (2) The records received by the parties shall be treated as confidential, to be
      used only by the parties, their counsel, and their consultants.

Tennessee Code Annotated section 29-26-121.


     1. Whether section 29-26-121 Infringes upon Rule-Making Authority of Courts


       We first consider whether section 29-26-121 violates the separation of powers
doctrine by infringing upon the courts’ rule-making authority–particularly, in conflicting


                                              -9-
with, or attempting to supersede, Rule 3 of the Tennessee Rules of Civil Procedure.


      Article II, sections 1 and 2 of the Tennessee Constitution provide for the separation
of powers among the three branches of government. Tenn. Const. Art. II, secs. 1 and 2.


       In general, the “legislative power” is the authority to make, order, and repeal
       law; the “executive power” is the authority to administer and enforce the law;
       and the “judicial power” is the authority to interpret and apply law. The
       Tennessee constitutional provision prevents an encroachment by any of the
       departments upon the powers, functions and prerogatives of the others. The
       branches of government, however, are guided by the doctrine of checks and
       balances; the doctrine of separation of powers is not absolute.


State v. King, 973 S.W.2d 586, 588 (Tenn. 1998) (quoting State v. Brackett, 869 S.W.2d 936,
939 (Tenn. Crim. App. 1993)). “Thus, while the three branches of government are
independent and co-equal, they are to a degree interdependent as well, with the functions of
one branch often overlapping that of another.” Id. (citing Underwood v. State, 529 S.W.2d
45, 47 (Tenn. 1975)). “A legislative enactment which does not frustrate or interfere with the
adjudicative function of the courts does not constitute an impermissible encroachment upon
the judicial branch of government.” Underwood, 529 S.W.2d at 47.


        The Tennessee Rules of Civil Procedure are “promulgated by the Supreme Court and
approved by [the Supreme Court] and approved by the General Assembly, pursuant to [the
Supreme Court’s] ‘inherent power to promulgate rules governing the practice and procedure
of the courts of this state.’” Hall v. Haynes, 319 S.W.3d 564, 571 (Tenn. 2010) (citing State
v. Mallard, 40 S.W.3d 473, 481 (Tenn. 2001)). The rules “have ‘the force and effect of
law[,]’” and “provisions of the Tennessee Code which cannot be harmoniously construed will
be resolved in favor of the Tennessee Rules of Civil Procedure.” Mid-South Pavers, Inc.
v. Arnco Const., Inc., 771 S.W.2d 420 (Tenn. Ct. App. 1989) (citing Tenn. Code Ann. § 16-
3-406). “[B]ecause the power to control the practice and procedure of the courts is inherent
in the judiciary and necessary ‘to engage in the complete performance of the judicial
function,’ . . . this power cannot be constitutionally exercised by any other branch of
government[.]” Mallard, 40 S.W.3d at 481 (quoting Anderson County Quarterly Court v.
Judges of the 28th Judicial Cir., 579 S.W.2d 875, 877 (Tenn. Ct. App. 1978)) (internal
citation omitted).


       Notwithstanding the constitutional limits of legislative power in this regard,

                                            -10-
        the courts of this state have, from time to time, consented to the application of
        procedural or evidentiary rules promulgated by the legislature. Indeed, such
        occasional acquiescence can be expected in the natural course of events, as this
        practice is sometimes necessary to foster a workable model of government.
        When legislative enactments (1) are reasonable and workable within the
        framework already adopted by the judiciary, and (2) work to supplement the
        rules already promulgated by the Supreme Court, then considerations of
        comity amongst the coequal branches of government counsel that the courts
        not turn a blind eye.


Id. (citing Newton v. Cox, 878 S.W.2d 105, 112 (Tenn. 1994)). Moreover, “[a]lthough it is
the province of [the Supreme] Court to prescribe rules for practice and procedure in the
state’s courts, where a decision of the legislature chiefly driven by public policy concerns
infringes on that power [the Court] will generally defer to the judgment of the legislature.”
Biscan v. Biscan, 160 S.W.3d 462, 474 (Tenn. 2005) (citing Martin v. Lear Corp., 90
S.W.3d 626, 631-32 (Tenn. 2002)).


        Tennessee Rule of Civil Procedure 3 provides:


        All civil actions are commenced by filing a complaint with the clerk of the
        court.7 An action is commenced within the meaning of any statute of
        limitations upon such filing of a complaint, whether process be issued or not
        issued and whether process be returned served or unserved. If process remains
        unissued for 90 days or is not served within 90 days from issuance, regardless
        of the reason, the plaintiff cannot rely upon the original commencement to toll
        the running of a statute of limitations unless the plaintiff continues the action
        by obtaining issuance of new process within one year from issuance of the
        previous process or, if no process is issued, within one year of the filing of the
        complaint.


Tenn. R. Civ. P. 3.



        7
         This Court has stated, “Standing alone, Tennessee Rule of Civil Procedure 3 could be construed to
mean that filing a complaint alone is sufficient to commence an action. However, this construction overlooks
the application of Tennessee Rules of Civil Procedure 3 and 4, which also requires service of process.
Tennessee law is clear that commencement of an action is accomplished only when a complaint is filed and
process is served.” McNeary v. Baptist Mem’l Hosp., 360 S.W.3d 429, 439 (Tenn. Ct. App. 2011).

                                                   -11-
                               i. Pre-Suit Notice Requirement


       Regarding compatibility with Rule 3, Plaintiffs first contend that the legislature “has
attempted to control commencement of a suit in medical malpractice actions” by adding a
written notice step in section 29-26-121. Plaintiffs claim that the pre-suit notice requirement
attempts to supersede the lawsuit commencement procedures set forth in Rule 3 in violation
of the Supreme Court’s authority to promulgate rules governing practice and procedure.
       Our Supreme Court has previously considered a pre-suit requisite in the context of
workers’ compensation. In Lynch v. City of Jellico, 205 S.W.3d 384, 390, 393 (Tenn. 2006)
the Court determined that requiring parties involved in a workers’ compensation dispute to
participate in a benefit review conference prior to filing suit did not violate the separation of
powers doctrine. Specifically, the Court rejected the trial court’s conclusion that the
conference violated the separation of powers doctrine because it was conducted by a
workers’ compensation specialist rather than by a judge. Id. at 392-93. Relevant to the
instant case, the Court noted the necessity of overlap between the governmental branches,
and it pointed out that the judicial branch would ultimately adjudicate the claim if an
agreement was not reached at the pre-suit conference. Id. at 293.


          More akin to the instant case, in Jackson v. HCA Health Services of Tennessee, Inc.,
383 S.W.3d 497 (Tenn. Ct. App. 2012), the middle section of this Court concluded that
Tennessee Code Annotated section 29-26-122,which requires the contemporaneous filing of
a certificate of good faith along with a medical malpractice complaint, did not conflict with
Tennessee Rule of Civil Procedure 3, and therefore, that it did not violate the separation of
powers doctrine. Id. at 505. This Court noted that the civil action continued to commence
upon the filing of the complaint, and that the statute merely provided for dismissal of the
action if the good faith certificate requirement was not satisfied. Id. The Court further
acknowledged that dismissal was not mandated if a plaintiff failed to file a certificate of good
faith; instead, failure to file the certificate could be excused upon “demonstrated
extraordinary cause.” Id. at 505-06 (citing Tenn. Code Ann. § 29-26-121(a)). Importantly,
the Court stated that “requiring a plaintiff to conduct a due diligence inquiry prior to filing
a complaint is not in conflict with the Tennessee Rules of Civil Procedure adopted by the
Supreme Court of Tennessee. In fact, requiring a plaintiff to exercise due diligence prior to
the filing of the complaint is entirely consistent with the rules.” Id. at 505. Finally, the Court
noted that the certificate of good faith requirement is easily complied with, as “[i]t merely
requires proof of the plaintiff’s due diligence, specifically that the plaintiff or his counsel
consulted with at least one competent medical expert who provided a written statement
confirming that the expert believes, based on the information available from medical records
. . . , that there is a good faith basis to maintain the action[.]” Id. at 506.


                                              -12-
        With the above-cited principles and applications in mind, we find no conflict between
section 29-26-121 and Civil Procedure Rule 3 to constitute an impermissible encroachment
upon the court’s rule-making authority. As pointed out by the defendants, section 29-26-121
requires that written notice of a potential health care liability claim be given “before the filing
of a complaint.” Thus, the statute’s pre-suit notice requirements are satisfied–or not–before
suit is commenced pursuant to Rule 3 by the filing of the complaint. See Rajvongs v.
Wright, No. M2011-01889-COA-R9-CV, 2012 WL 2308563, at *5 (Tenn. Ct. App. June 18,
2012) (holding that a suit is “commenced” upon the filing of the complaint, not upon the
filing of the sixty-day notice) perm. app. granted (Tenn. Sept. 19, 2012). Once suit is
commenced, if the pre-suit notice requirements are demonstrably not met, the complaint is
subject to dismissal by the courts absent “extraordinary cause” which is, likewise, determined
by the courts. See Tenn. Code Ann. § 29-26-121(a)(4)(b); see also Myers v. AMUSUB
(SFH), Inc., 382 S.W.3d 300, 304 (Tenn. 2012) (“We hold that the statutory requirement[]
that a plaintiff give sixty days pre-suit notice . . . [is a] mandatory requirement[] and not
subject to substantial compliance.”).


        Moreover, the purpose of section 29-26-121 is “‘to give the defendant the opportunity
to investigate and perhaps even settle the case before it is actually filed. At a minimum, it
will give the defendant the opportunity to gather information before suit is filed and should
eliminate the need for extensions of time to answer the complaint or slow-walk discovery.’”
DePue v. Schroeder, No. E2010-00504-COA-R9-CV, 2011 WL 538865, at *5 (Tenn. Ct.
App. Feb. 15, 2011) perm. app. denied (Tenn. Aug. 31, 2011) (quoting Howell v. Claiborne
and Hughes Health Ctr., No. M2009-01683-COA-R3-CV, 2010 WL 2539651, at *14 (Tenn.
Ct. App. June 24, 2010)) overruled on other grounds by Myers v. AMISUB (SFH), Inc., 382
S.W.3d 300 (Tenn. 2012). Based upon legislature’s substantive policy concerns, we find
that the pre-suit notice requirement is not entirely procedural. In any event, as stated above,
consent to a legislatively-promulgated procedural rule is appropriate where the statute works
within the framework and rules adopted by the judiciary. Mallard, 40 S.W.3d at 481 (citing
Newton, 878 S.W.2d at 112). Here, the statutory purposes supplement the Rules of Civil
Procedure, which are to “be construed to secure the just, speedy, and inexpensive
determination of every action[,]” Tenn. R. Civ. P. 1, and therefore, we find that deferment
to the legislature is appropriate.


       Finally, as with section 29-26-122–the constitutionality of which has been upheld–the
requirements of section 29-26-121 are easily met. The written notice requires only minimal
information which is easily accessible to the claimant, and several clearly-explained delivery
methods are available. In sum, because the pre-suit notice requirements of section 29-26-121
merely supplement Rule 3 and can be harmoniously construed therewith, we find such
requirements do not violate the separation of powers doctrine.

                                               -13-
                                              ii. Tolling


        Rule 3 of the Tennessee Rules of Civil Procedure allows a plaintiff to toll the statute
of limitations by obtaining issuance of new process within one year of the original issuance
or, if no process was originally issued, within one year of the filing of the complaint.
Plaintiffs point out that the one-year tolling period is unavailable to a health care liability
plaintiff who fails to provide pre-suit notice within the original statute of limitations pursuant
to section 29-26-121, and therefore, they argue that the legislative statute, in attempting to
supersede the Courts’ Rule 3, violates the separation of powers doctrine.


        Plaintiffs are correct that a plaintiff who fails to comply with the requirements of
section 29-26-121 may not take advantage of Rule 3’s one-year tolling period, as the suit
becomes subject to dismissal.8 However, we disagree that this tolling inability “effectively
kills the suit before it starts[,]” as Plaintiffs suggest. As explained above, the statutory pre-
suit notice requirements are easily met and they work to promote both early evaluation and
streamlined disclosure of medical records in order to facilitate the statutory goals of
information gathering and litigation expediency.


        Moreover, we note that a health care liability plaintiff who complies with the meager
pre-suit notice requirements of section 29-26-121 is afforded an additional 120 day period
in which to commence his claim. Section 29-26-121 provides that if the requisite pre-suit
notice is given, “the applicable statutes of limitations and repose shall be extended for a
period of one hundred twenty (120) days from the date of expiration of the statute of
limitations and statute of repose applicable to that provider.” Tenn. Code Ann. § 29-26-
121(a)(3)(B)(4)(c). When suit is commenced pursuant to Rule 3, its tolling provisions
become operative. Thus, a plaintiff who provides the requisite 29-26-121 notice may take
advantage of both section 29-26-121’s 120-day extension in which to commence his claim,
and Rule 3’s one year tolling period. In sum, we simply decline to adopt Plaintiffs’ premise
that subjecting a plaintiff’s claim to dismissal–for failure to follow reasonable pre-suit
requirements–renders a statute unconstitutional.


            2. Whether Tenn. Code Ann. § 29-26-121 is Pre-Empted by HIPAA


        8
         On appeal, Plaintiffs argue that the proper sanction for failure to comply with the requirements of
section 29-26-121 is dismissal without prejudice. As stated above, however, this issue was not accepted for
consideration by this Court and will not be addressed. See Montcastle, 723 S.W.2d at 122.

                                                   -14-
        Congress passed the Health Insurance Portability and Accountability Act of 1996
(“HIPAA”)9 for the stated purpose of “improv[ing] . . . the efficiency and effectiveness of
the health care system, by encouraging the development of a health information system
through the establishment of standards and requirements for the electronic transmission of
certain health information.” South Carolina Med. Ass’n v. Thompson, 327 F.3d 346, 348
(4th Cir. S.C. 2003) (citation omitted). Specifically, HIPAA “creates privacy and security
rules related to personal health information held by covered entities.” North Cypress Med.
Ctr. Operating Co. v. Fedex Corp.,--- F.Supp.2d ----, 2012 WL 4344611, at *7 n.1 (S.D.
Tex. Sept. 14, 2012) (citing Pub. L. No. 104-191, 110 Stat. 1936) (emphasis added). A
“covered entity” is generally defined as either a health plan, a health care clearinghouse, or
a health care provider engaged in electronic transactions. 45 C.F.R. § 160.103; see also
Graham v. Fleissner Law Firm, No. 1:08-CV-00031, 2008 WL 2169512, at *3 (E.D. Tenn.
2008). Under HIPAA, a covered entity generally “may not use or disclose protected health
information without a[] [valid] authorization[.]” 45 C.F.R. §164.508(a)(1). However, in
certain circumstances, “[a] covered entity may use or disclose protected health information
without the written authorization of the individual[.]” 45 C.F.R. § 164.512. For example,
pursuant to HIPAA section 164.512(e)(1), “[a] covered entity may disclose protected health
information in the course of any judicial administrative proceeding:”


       (i) In response to an order of a court or administrative tribunal, provided that
       the covered entity disclosed only the protected health information expressly
       authorized by such order; or
       (ii) In response to a subpoena, discovery request, or other lawful process, that
       is not accompanied by an order of a court or administrative tribunal, if:


               (A) The covered entity receives satisfactory assurance . . . from the
               party seeking the information that reasonable efforts have been made
               by such party to ensure that the individual who is the subject of the
               protected health information that has been requested has been given
               notice of the request; or
               (B) The covered entity receives satisfactory assurance . . . from the
               party seeking the information that reasonable efforts have been made
               by such party to secure a qualified protective order[.]




       9
        HIPAA is codified in Title 45, Parts 160, 162, and 164 of the Code of Federal Regulations. See
Jackson v. CVS Corp., 2010 WL 3385184, at *5 n.5 (Tenn. Ct. App. Aug. 26, 2010).

                                                -15-
      (iii) For the purposes of paragraph (e)(1)(ii)(A) of this section, a covered entity
      receives satisfactory assurances from a party seeking protect[ed] health
      information if the covered entity receives from such party a written statement
      and accompanying documentation demonstrating that:


             (A) The party requesting such information has made a good faith
             attempt to provide written notice to the individual (or, if the
             individual’s location is unknown, to mail a notice to the individual’s
             last known address);
             (B) The notice included sufficient information about the litigation or
             proceeding in which the protected health information is requested to
             permit the individual to raise an objection to the court or administrative
             tribunal; and
             (C) The time for the individual to raise objections to the court or
             administrative tribunal has elapsed, and:


                     (1) No objections were filed; or
                     (2) All objections filed by the individual have been resolved by
                     the court or the administrative tribunal and the disclosures being
                     sought are consistent with such resolution.


      (iv) For the purposes of paragraph (e)(1)(ii)(B) of this section, a covered entity
      receives satisfactory assurances from a party seeking protected health
      information, if the covered entity receives from such party a written statement
      and accompanying documentation demonstrating that:


             (A) The parties to the dispute giving rise to the request for information
             have agreed to a qualified protective order and have presented it to the
             court or administrative tribunal with jurisdiction over the dispute; or
             (B) The party seeking the protected health information has requested a
             qualified protective order from such court or administrative tribunal.


45 C.F.R. § 164.512(e)(1). A “qualified protective order” is one that:


      (A) Prohibits the parties from using or disclosing the protected health

                                             -16-
        information for any purpose other than the litigation or proceeding for which
        such information is requested; and
        (B) Requires the return to the covered entity or destruction of the protected
        health information (including all copies made) at the end of the litigation or
        proceeding.


45 C.F.R. § 164.512(e)(1)(v)(A), (B).


       On appeal, Plaintiffs argue that section 29-26-121 conflicts with HIPAA, and
therefore, that the Tennessee statute is preempted.


        “Our federal system of government recognizes the dual sovereignty of the federal
government and the various state governments.” Pendleton v. Mills, 73 S.W.3d 115, 126
(Tenn. Ct. App. 2001) (citing Printz v. United States, 521 U.S. 898, 918, 117 S.Ct. 2365, 138
L.Ed.2d 914 (1997); Gregory v. Ashcroft, 501 U.S. 452, 45, 111 S.Ct. 2395, 2399, 115
L.Ed.2d 410 (1991)). A state is sovereign within its own sphere subject only to preemption
pursuant the Supremacy Clause of the United States Constitution.10 Id. (citing Tafflin v.
Levitt, 493 U.S. 455, 458, 110 S.Ct. 792, 795, 107 L.Ed.2d 887 (1990); Bellsouth Telecomm.,
Inc. v. Greer, 972 S.W.2d 663, 670 (Tenn. Ct. App. 1997)).


        “The courts, however, are reluctant to presume that preemption of state law has
occurred.” Id. (citations omitted). Instead, “courts work from the assumption that the
historic powers of the states with regard to matters traditionally subject to state regulation are
not displaced by a federal statute unless that is the clear and manifest intent of Congress.”
Id. (citations omitted). A preemption inquiry begins by focusing upon the federal statutory
language, with consideration given to the “entire federal statutory scheme.” Id. at 127
(citations omitted). The inquiry must attempt “to reconcile the federal and state laws, . . .
rather than to seek out conflict where none clearly exists.” Id. (citations omitted).


      HIPAA contains an express preemption clause: “A standard, requirement, or
implementation specification adopted under this subchapter that is contrary to a provision


        10
          U.S. Const. art. VI, c. 2 provides: “This Constitution, and the Laws of the United States which shall
be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the
United States, shall be the supreme Law of the land; and the Judges of every State shall be bound thereby,
anything in the Constitution or laws of any state to the Contrary notwithstanding.”

                                                     -17-
of State law preempts the provision of State law.” 45 C.F.R. § 160.203 (emphasis added).
“Contrary” means:


       (1) A covered entity would find it impossible to comply with both the State
       and federal requirements; or
       (2) The provision of State law stands as an obstacle to the accomplishment and
       execution of the full purposes and objectives [of the Act.]


45 C.F.R. § 160.202. The preemption rule does not apply where “[t]he provision of State
law relates to the privacy of individually identifiable health information and is more stringent
than a standard, requirement, or implementation specification adopted under subpart E of part
164 of this subchapter.” 45 C.F.R. § 160.203(b) (emphasis added).


       On appeal, Plaintiffs contend that the confidentiality requirements of section 29-26-
121 are less stringent than HIPAA, and therefore, that section 29-26-121 is preempted.
Specifically, Plaintiffs point out that HIPAA allows the disclosure of protected health
information in response to a subpoena, discovery request, or other lawful process only if
reasonable efforts were made to notify the individual who is the subject of the protected
health information or if the party seeking the information made reasonable efforts to secure
a qualified protective order either by the agreement of the parties or upon application to the
court by the party seeking the protected health information. If a qualified protective order
is sought, the order must limit the protected health information’s use to the present litigation
and it must require the return or destruction of such information upon the litigation’s end.
Without elaboration, Plaintiffs contend that section 29-26-121 contains “no such provisions”
and that the Tennessee statute attempts to allow “[d]isclosure without a court order or the
patient’s consent[.]”11 They suggest that, to avoid preemption, a state provision must be
“more stringent” than the HIPAA regulations.



       11
          Tennessee Code Annotated section 29-26-121 was amended, effective July 1, 2013, to provide as
follows regarding qualified protective orders:
        (C)(i) The qualified protective order shall expressly limit the dissemination of any protected
        health information to the litigation pending before the court and require the defendant or
        defendants who conducted the interview to return to the healthcare provider or destroy any
        protected health information obtained in the course of any such interview, including all
        copies, at the end of the litigation.
        (ii) The qualified protective order shall expressly provide that participation in any such
        interview by a treating healthcare provider is voluntary.

                                                 -18-
       In response, Defendants argue that not only are “more stringent” state provisions not
preempted by HIPAA, but state provisions which are “consistent” with HIPAA are also not
preempted. Defendants contend that a health care liability claimant can comply with both
section 29-26-121 and HIPAA and they point out that section 29-26-121 specifically requires
the mandatory pre-suit notice include “[a] HIPAA compliant medical authorization[.]” Tenn.
Code Ann. § 29-26-121(a)(2)(E).


        First, we must agree with Defendants’ position regarding the preemption standard.
Plaintiffs are correct that HIPAA expressly provides that “more stringent” state provisions
are not subject to preemption. 45 C.F.R. § 160.203(b). However, this does not necessarily
indicate that a state provision must be “more stringent” in order to avoid preemption, as
Plaintiffs suggest. HIPAA’s preemption clause provides only for the preemption of
“contrary” state provisions, which it defines as those provisions which make
contemporaneous state and federal compliance impossible or which impede accomplishment
and execution of federal objectives. A “non-contrary” state provision, which is not “less
stringent” than the federal standard is not preempted simply because it is not “more stringent”
than the federal HIPPA standard. See Alsip v. Johnson City Med. Ctr., No. E2004-00831-
COA-R9-CV, 2005 WL 1536192, at *9 (Tenn. Ct. App. June 30, 2005) aff’d by Alsip v.
Johnson City Med. Ctr., 197 S.W.3d 722 (Tenn. 2006) (“Federal law clearly provides that
the provisions of HIPAA and its related rules, where more stringent or, stated another way,
more confidentiality-friendly, preempt the less stringent edicts of state law; while states can
establish greater protections than those provided for under HIPAA, they cannot promulgate
rules that provide for less stringent protections.”) (citing 45 C.F.R. § 160.203 (2005))
(footnote omitted).


       With this preemption standard in mind, we consider whether the requirements of
section 29-26-121 are “contrary” to those set forth by HIPAA. Again, Plaintiffs assert that
section 29-26-121 allows disclosure of protected health information without either a court
order or the patient’s consent in contravention of HIPAA.


        In Alsip v. Johnson City Medical Center, 197 S.W.3d 722, 723-24 (Tenn. 2006), our
Supreme Court discussed the issue of plaintiff consent when it considered whether ex parte
communications between a medical malpractice plaintiff’s physicians and defense attorneys
violated the implied covenant of confidentiality between physicians and patients. Ultimately,
the Court determined that ex parte communications were unnecessary because formal
discovery methods were sufficient to uncover the plaintiff’s relevant medical information.
Id. at 728. However, the Court noted that “public policy considerations reflected in the
Tennessee Rules of Civil Procedure require that the covenant of physician-patient

                                             -19-
confidentiality be voided for the purpose of discovery[,]” id. at 726 (citing Tenn. R. Civ. P.
26; Gall ex rel. Gall v. Jamison, 44 P.3d 233, 239 (Colo. 2002), and it stated that “by filing
the lawsuit, the plaintiff impliedly consents to disclosure of his relevant medical
information.” Id. at 727 (citing Tenn. R. Civ. P. 26.02); see also id. at 728 (“[C]onsent here
to disclose the decedent’s confidential, relevant medical information was implied at law as
a consequence of the plaintiffs’ conduct (i.e., by the filing of the lawsuit)[.]”).


        We simply cannot agree with Plaintiffs’ position that section 29-26-121 allows for
the release of protected health information without either a court order or the patient’s
consent, in violation of HIPAA. By pursuing a malpractice claim, the plaintiff consents to
the disclosure of relevant medical information.12 See, e.g., Holman v. Rasak, 785 N.W.2d
98,106 (Mich. 2010) (“The HIPAA regulations were ‘not intended to disrupt the current
practice whereby an individual who is a party to a proceeding and has put his or her medical
condition at issue will not prevail without consenting to the production of his or her protected
health information.’”) (quoting 65 Fed. Reg. 82462-01, 82530 (December 28, 2000)
discussing 45 C.F.R. § 164.512(e)) (footnote omitted). Moreover, HIPAA expressly provides
that protected health information may be released, in the context of a judicial proceeding, in
response to lawful process where the subject of the protected information is notified of the
information request. 45 C.F.R. § 164.512(e)(1)(ii)(A) (emphasis added). Certainly, the
plaintiff, who, in the pursuit of his claim has authorized the release of his medical records,
is aware of the information request. Notwithstanding this consent, however, HIPAA
protection is not waived by the pursuit of a malpractice claim. As pointed out by Defendants,
section 29-26-121specifically demands that the claimant’s authorization to release medical
records be “HIPAA complaint[,]” it limits the discoverable medical records to those held by
providers sent notice by the claimant, and it requires the records be treated as confidential
and be used only by the parties, their counsel, and their consultants. Tenn. Code Ann. § 29-
26-121(a)(2)(E), (d)(2).


       In sum, we find that a “covered entity” can comply with the requirements of both
section 29-26-121 and HIPAA, and that section 29-26-121 does not impede the
accomplishment or execution of HIPAA’s purposes. Accordingly, section 29-26-121 is not
a “contrary” provision subject to preemption.




        12
         In their appellate brief, Plaintiffs briefly argue that because section 29-26-121 requires the release
of information prior to suit commencement that “there is no way that a potential plaintiff has waived
anything.” This argument, however, is without merit as public policy considerations related to the need to
discovery are no less applicable sixty days prior to suit commencement.

                                                     -20-
   3. Whether section29-26-121 Violates Equal Protection and Due Process Provisions


       Finally, we address Plaintiffs’ arguments that section 29-26-121 violates the Equal
Protection and Due Process provisions of both the Tennessee Constitution and the United
States Constitution.
                                        i. Standard of Review 13
       At the outset, we must consider Plaintiffs’ argument that the pre-suit notice
requirements of section 29-26-121 restrict the fundamental right of court access, and
therefore, that the constitutionality of the statute must be analyzed under strict scrutiny.


        A legislative classification which disadvantages a “suspect class” or which interferes
with the exercise of a “fundamental right” must be analyzed under strict scrutiny. In re
Estate of Combs, No. M2011-01696-COA-R3-CV, 2012 WL 3711748, at *5 (Tenn. Ct. App.
Aug. 28, 2012) perm. app. denied (Tenn. Jan. 14, 2013) (citing State v. Tester, 879 S.W.2d
823, 828 (Tenn. 1994)); see also In re Adoption of J.K.W., No. E2006-00906-COA-R3-PT,
2007 WL 161048, at *4 (Tenn. Ct. App. Jan. 23, 2007) perm. app. denied (Tenn. Apr. 30,
2007) (“Tennessee courts have used the strict scrutiny approach in regard to fundamental
rights ‘without exception.’”) (citation omitted). “In order to survive a strict scrutiny analysis,
the statute must serve a compelling state interest and be narrowly tailored to serve that
interest.” In re Adoption of J.K.W., 2007 WL 161048, at *4 (citation omitted). If, however,
no fundamental interest or suspect class is involved, the legislation is subject only to a
rational basis test. Harrison v. Schrader, 569 S.W.2d 822, 825 (Tenn. 1978) (footnote
omitted). “Under this standard, if some reasonable basis can be found for the classification,
or if any state of facts may reasonably be conceived to justify it, the classification will be
upheld.” Id. (citations omitted).


       Our Tennessee Supreme Court has held that “medical malpractice litigants are not
members of a suspect class.” Newton v. Cox, 878 S.W.2d 105, 109 (Tenn. 1994) (citing
Sutphin v. Platt, 720 S.W.2d 455 (Tenn. 1986)). Thus, in their attempt to invoke strict
scrutiny, Plaintiffs contend that Tennessee Code Annotated section 29-26-121 impinges on
the fundamental right of access to the courts under Article I, Section 17 of the Tennessee


        13
          In his brief, Dr. Roberson contends that Plaintiffs first argued in their Rule 59.04 Motion to Alter
or Amend that section 29-26-121 should have been reviewed under strict scrutiny, and therefore, that the
issue should be considered waived. Dr. Roberson also points out that interlocutory appeal was not
specifically granted with regard to the strict scrutiny versus rational basis issue. However, we find a
determination of the appropriate scrutiny standard is necessary to our consideration of the statute’s
constitutionality under due process and equal protection challenges; thus, we will consider which test applies.

                                                     -21-
Constitution, which provides in relevant part:
       That all courts shall be open; and every man, for injury done him in his lands,
       goods, person or reputation, shall have remedy by due course of law, and right
       and justice administered without sale, denial, or delay.


Tenn. Const. art. I, § 17 (“Open Courts Clause”). Specifically, Plaintiffs claim that section
29-26-121 “in its attempt to super[s]ede the procedures set forth in Tenn. R. Civ. P. 3 and in
its arbitrary restriction which requires that the notice letter be served during the original
statute of limitations (and which does not permit any extension - equivalent to alias process -
in which to complete service of the notice letter)” runs afoul of the Open Courts Clause.

       Our Supreme Court, however, has explained that the Open Courts Clause “has been
interpreted . . . as a mandate to the judiciary and not as a limitation upon the legislature.”
Harrison, 569 S.W.2d at 827 (citing Scott v. Nashville Bridge Co., 143 Tenn. 86, 223 S.W.
844 (1920)). The right to court access is not absolute. Instead,

       [t]he constitutional guaranty providing for open courts and insuring a remedy
       for injuries does not guaranty a remedy for every species of injury, but applies
       only to such injuries as constitute violations of established law of which the
       courts can properly take cognizance.

Id. (quoting Barnes v. Kyle, 202 Tenn. 529, 535-36, 306 S.W.2d 1, 4 (1957)).

       Thus, the courts are open only to those who suffer injuries as defined by the
       constitution, statute, or common law. Thus, if the legislature chooses to
       classify some damage outside the realm of “legal injury,” it may do so, as long
       as no other constitutional provision is violated. That is what is meant by the
       statement that Article I, section 17 is a mandate to the judiciary and not the
       legislature. The legislature may limit access to the courts, but the judiciary
       may not.

Stutts v. Ford Motor Co., 574 F.Supp. 100, 103 (M.D. Tenn. 1983) (citing Barnes, 306
S.W.2d 1).

       In Harrison, our Supreme Court upheld the constitutionality of the three-year medical
malpractice statute of limitations–employing a rational basis test–specifically finding that it
did not violate the Open Courts Clause. Quoting with approval Barnes, the Court noted that
statutes of limitation are “‘exclusively the creatures of the legislative branch of
government[,]’” id. (citing Carney v. Smith, 222 Tenn. 472, 477, 437 S.W.2d 246, 248

                                             -22-
(1969)), that “[t]hey are justified on the basis of policy[,]” and that the legislature, “in
enacting such legislation, may weigh the conflicting interests between one person’s right to
enforce an otherwise valid claim and another person’s right to be confronted with any claim
against him (within a suitable time).” Id.

        The Harrison Court likewise cited with approval Dunn v. Felt, 379 A.2d 1140 (Del.
Super. 1977), which addressed whether Delaware’s three-year medical malpractice statute
of limitations violated a provision of the Delaware Constitution similar to Tennessee’s Open
Courts Clause. The Dunn Court found that the plaintiffs had misconceived the nature of the
statute of limitations:

        It does not eliminate a remedy for a civil wrong; it simply provides that after
        3 years no cause of action can arise. The General Assembly has the power to
        create new rights and abolish old ones so long as they are not vested.

Harrison, 569 S.W.2d at 827 (quoting Dunn, 379 A.2d 1140).

        In the instant case, Plaintiffs take issue with section 29-26-121’s requirement that
written pre-suit notice of the potential health care liability claim be given within the original
statute of limitations, without provision for extension. As was explained in the cases cited
above, however, the legislature has the inherent authority to set the parameters under which
a cause of action accrues and is abolished; in enacting section 29-26-121, it crafted an
affirmative defense for failure to comply with the pre-suit notice requirements. Because the
Open Courts Clause “applies only to such injuries as constitute violations of established law
of which the courts can properly take cognizance[,]” Harrison, 569 S.W.2d at 827, we find
that Plaintiffs may not successfully invoke the clause to challenge section 29-26-121, nor to
insist that section 29-26-121 be analyzed under strict scrutiny.

                                         ii. Equal Protection

         “The concept of equal protection espoused by the federal and of our state
constitutions14 guarantees that ‘all persons similarly circumstanced shall be treated alike.’”
Newton v. Cox, 878 S.W.2d 105, 109 (Tenn. 1994) (quoting Tenn. Small School Sys. v.
McWherter, 851 S.w.2d 139,153 (Tenn. 1993)). Where, as here, the legislative classification


        14
            Although our Supreme Court has “recogniz[ed] . . . [the] ‘historic[] and linguistic[]
distinct[ness],’”of the equal protection provisions of the Tennessee Constitution and the Fourteenth
Amendment to the United States Constitution, it “has followed the framework developed by the United States
Constitution for analyzing equal protection claims.” Newton v. Cox, 878 S.W.2d 105 (Tenn. 1994) (citing
Tenn. Small School Sys. v. McWherter, 851 S.W.2d 139, 152-54 (Tenn. 1993)).

                                                  -23-
does not interfere with the exercise of a fundamental right nor does it disadvantage a suspect
class, the rational basis test provides the appropriate standard for determining whether the
statute should be upheld on equal protection grounds. See id. at 109-10 (citations omitted).
Under this standard, the classification must simply “rest upon a reasonable basis. . . . it is not
unconstitutional merely because it results in some inequality.” Harrison, 569 S.W.2d at 825.
“[I]f any state of facts can reasonably be conceived to justify the classification or if the
reasonableness of the class is fairly debatable, the statute must be upheld.” Id. at 826 (citing
Swain v. State, 527 S.W.2d 119 (Tenn. 1975); Estrin v. Moss, 221 Tenn. 657, 430 S.W.2d
345 (1968); Phillips v. State, 202 Tenn. 402, 304 S.W.2d 614 (1957)); see also Club Sys. of
Tenn., Inc. v. YMCA of Middle Tenn., No. M2004-01966-COA-R3-CV, 2005 WL 3479628,
at *10 (Tenn. Ct. W.S. App. Dec. 19, 2005) perm. app. denied (Tenn. June 26, 2006)
(“Tennessee courts have consistently held not only that the rational basis standard is a very
low level of scrutiny, but also that the party challenging the rational basis of a statute bears
the burden of proving that the legislative classification in that statute is unreasonable and
arbitrary.”) (citing Harrison, 569 S.W.2d at 826). Specific evidence of the relationship
between the classification and its purported purpose is unnecessary; “[t]he proper analysis
is whether the legislature could conceive of a relationship between the statute and the purpose
of the [legislation].” Newton, 878 S.W.2d at 110 (emphasis added).

       On appeal, Plaintiffs contend that there exists no rational basis for imposing pre-suit
notice requirements upon a medical negligence claimant, while not imposing such
requirements upon a non-medical negligence claimant. We disagree.

       The courts of this state have rejected numerous equal protection challenges to specific
provisions of the Tennessee Medical Malpractice Act. In Harrison v. Schrader, 569 S.W.2d
822, 825 (Tenn. 1978), the plaintiffs challenged the Act’s three-year statute of repose
arguing, like Plaintiffs in the instant case, that no rational basis existed for treating medical
malpractice plaintiffs differently from non-medical malpractice plaintiffs. In upholding the
constitutionality of the statute of repose, the Court noted that

              At the time the legislature passed the statute of limitations . . . , this
       state and the nation were in the throes of what was popularly described as a
       “medical malpractice insurance crisis.” Because of alleged increasing
       numbers of claims, insurance companies had grown reluctant to write medical
       malpractice policies. Where policies were available, premiums had risen
       astronomically.

Id. at 826 (footnote omitted). The Court reasoned that the legislature could have perceived
a threat, not only to the medical profession, but also to the general public. Specifically, the
Court stated that the legislature may have considered the increased cost of health care due

                                              -24-
to skyrocketing liability costs, the decreased number of physicians due to the cessation of
practice and early retirement, and the decreased quality of health care due to the practice of
“defensive medicine.” Id. Additionally, the Court found that “it could be argued” that
placing a three-year limitation on actions could lead to decreased malpractice insurance costs.
Id. Importantly, the Court found the validity of these concerns irrelevant; what mattered was
that the considerations “were accepted by the legislature and formed the predicate for its
action.” Id. Ultimately, the Court could not “say that there [was] no reasonable basis” for
the legislative classification or that it bore “no reasonable relation to the legislative objective
of reducing and stabilizing insurance and health costs and protecting the public as a whole.”
Id. Instead, when the legislation was enacted, “‘there was indubitably a valid reason for the
distinction made’ by the statute.” Id. at 827.

       Similarly, in Newton v. Cox, 878 S.W.2d 105 (Tenn. 1994), our Supreme Court
rejected an equal protection challenge to Tennessee Code Annotated section 29-26-120,
which establishes a contingency fee cap for attorneys representing medical malpractice
claimants. Employing the rational basis test, the Court found “it conceivable that the General
Assembly concluded that the contingency cap . . . would further the purposes of the Medical
Malpractice Act by reducing malpractice insurance costs and, therefore reduce the cost of
health care to the public.” Id. at 110. Thus, it found the statute did not violate the equal
protection provisions of the Tennessee or United States constitutions. Id.

        More recently, in Jackson v. HCA Health Services of Tennessee, Inc., 383 S.W.3d 497
(Tenn. Ct. App. 2012), the middle section of this Court rejected an equal protection challenge
to Tennessee Code Annotated section 29-26-122, which requires that a medical malpractice
complaint be accompanied by a certificate of good faith. Relying upon Harrison, and its
language regarding the purposes behind the Medical Malpractice Act, the Jackson Court
stated,

       we cannot say that the current medical malpractice act, specifically, Tennessee
       Code Annotated § 29-26-122(a), has no reasonable basis for the distinction in
       filing good faith certificates in medical malpractice actions and not in civil
       actions for personal injuries caused by other means, which are not under the
       purview of medical malpractice, or that it has no natural relation to the
       legislative objective.

               As was the environment at the time of Harrison, the legislature
       perceived a threat in 2009, not only to the medical profession and its insurers,
       but to the general welfare of the citizens of this state because, believing that
       as liability costs increase, so does the cost of health care and the practice of
       “defensive medicine,” spawned by the fear of costly legal actions, may lead to

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       a lower quality of health care in general. Whether these considerations are or
       are not valid is not for this court to determine. What is relevant and
       controlling is that they were accepted by the legislature and formed the
       predicate for its action.

              Accordingly, we cannot say that there is no reasonable basis for the
       separate classification of health care providers or that this classification bears
       no reasonable relation to the legislative objective of reducing and stabilizing
       health costs and protecting the general public. Borrowing a phrase from
       Harrison, at the time Section 122(a) was enacted, “there was indubitably a
       valid reason for the distinction made” by the statute.

Id. at 505 (internal citations omitted).

       Turning to the instant case, as stated above, the purpose of section 29-26-121 is “‘to
give the defendant the opportunity to investigate and perhaps even settle the case before it
is actually filed. At a minimum, it will give the defendant the opportunity to gather
information before suit is filed and should eliminate the need for extensions of time to
answer the complaint or slow-walk discovery.’” DePue, 2011 WL 538865, at *5 (quoting
Howell, 2010 WL 2539651, at *14). The legislative purposes of section 29-26-121 have
been further discussed as follows:

       The State of Tennessee Senate Republican Caucus newsletter . . . states that
       “[t]he legislation is designed to reduce the number of frivolous lawsuits filed
       in Tennessee each year . . . by requiring early evaluation and streamlined
       disclosure of medical records.” . . . . A news release from the Senate Republic
       Caucus . . . contains the following relevant language:

              The State Senate has approved and sent to the governor major
              tort reform legislation aimed at weeding out meritless medical
              malpractice lawsuits.

              ....

       Key provisions in the bill include:
       • Notice would be provided at least two months before a lawsuit is filed to
         help resolve the case before it goes to court.

   It appears, therefore, that the Tennessee statute was intended . . . to provide notice to
   potential parties and to facilitate early resolution of cases through settlement.

                                             -26-
Jenkins v. Marvel, 683 F.Supp.2d 626, 639 (E.D. Tenn. 2010) (footnotes and internal
citations omitted).

    Simply put, we find that the legislature could conceive of a relationship between section
29-26-121’s pre-suit notice requirements and its legislative objectives of preventing
protracted litigation through early investigation, and possibly, facilitating early resolution
through settlement. See DePue, 2011 WL 538865, at *5 (citation omitted). These objectives
are of particular importance in the context of medical malpractice claims where, as discussed
above, increased malpractice insurance costs threaten both health care affordability and
accessibility. In sum, because the classification rests upon a reasonable basis, we reject
Plaintiffs’ claim that section 29-26-121 violates the equal protection provisions of the
Tennessee and United States constitutions.

                                      iii. Due Process

   Article I, section 8 of the Tennessee Constitution provides

   That no man shall be taken or imprisoned, or disseized of his freehold, liberties or
   privileges, or outlawed, or exiled, or in any manner destroyed or deprived of his life,
   liberty or property, but by the judgment of his peers or the law of the land.




Tenn. Const. Art. I, sec. 8. This “law of the land” provision is synonymous with the due
process clause of the Fourteenth Amendment to the United States Constitution. Newton, 878
S.W.2d at 110 (citing State ex rel. Anglin v. Mitchell, 596 S.W.2d 779, 786 (Tenn. 1980)).
“Due process under the state and federal constitutions encompasses both procedural and
substantive protections.” Lynch v. City of Jellico, 205 S.W.3d 384, 391 (Tenn. 2006).

    Substantive due process “limits oppressive government action[,]” and may be categorized
into two types of claims: “(1) deprivations of a particular constitutional guarantee and (2)
actions by the government which are ‘arbitrary, or conscience shocking in a constitutional
sense.’” Id. at 391-92 (citting Collins v. City of Harker Heights, 503 U.S. 115, 128, 112 S.Ct.
1061, 117 L.Ed.2d261 (1992); Valot v. Southeast Local Sch. Dist. Bd. of Educ., 107 F.3d
1220, 1228 (6th Cir. 1997)). “In short, substantive due process bars certain government
action regardless of the fairness of the procedures used to implement them.” Id. at 392
(citing County of Sacramento v. Lewis, 523 U.S. 833, 840, 118 S.Ct. 1708, 140 L.Ed.2d 1043
(1998)). Where, as here, no fundamental right is involved, “the test for determining whether
a statute comports with substantive due process is whether the legislation bears ‘a reasonable
relation to a proper legislative purpose’ and is ‘neither arbitrary nor discriminatory.’”

                                             -27-
Newton, 878 S.W.2d at 110 (quoting Nebbia v. New York, 291 U.S. 502, 537, 54 S.Ct. 505,
516, 78 L.Ed. 940 (1934); National Railroad Passenger Corp. v. Atchison, Topka & Santa
Fe Ry. Co., 470 U.S. 451, 105 S.Ct. 1441, 84 L.Ed.2d 432 (1985)). In applying this test,
courts do not “inquire into the motives of a legislative body or [] scrutinize the wisdom of
a challenged statute or ordinance.” Martin v. Beer Bd. for City of Dickson, 908 S.W.2d 941,
955 (Tenn. Ct. App. 1995) (citations omitted).

    Procedural due process, however, does not prevent deprivations of “life, liberty, or
property” but instead it simply “requires state and local governments to employ fair
procedures when they deprive persons of a constitutionally protected interest in ‘life liberty,
or property.’” Cheatham County v. Cheatham County Bd. of Zoning Appeals, No. M2012-
00930-COA-R3-CV, 2012 WL 5993757, at *3 (Tenn. Ct. App. Nov.30, 2012) (quoting Parks
Props. v. Maury County, 70 S.W.3d 735, 743 (Tenn. Ct. App. 2001)). Procedural due
process requires “that individuals be given an opportunity to have their legal claims heard
at a meaningful time and in a meaningful manner.” Lynch, 205 S.W.3d at 391 (citing Logan
v. Zimmerman Brush Co., 455 U.S. 422, 429-30, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982);
Manning v. City of Lebanon, 124 S.W.3d 562, 566 (Tenn. Ct. App. 2003)). It is clear,
however, “that a state may erect reasonable procedural requirements for triggering the right
to an adjudication, such as statutes of limitations, and a state may terminate a claim for
failure to comply with a reasonable procedural rule without violating due process rights.”
Burford v. State, 845 S.W.2d 204, 208 (Tenn. 1992) (citing Logan, 455 U.S. at 437). When
a state terminates a claim for failure to comply with procedural requirements, the procedural
due process “question, then, is ‘whether the state’s policy reflected in the statute affords a
fair and reasonable opportunity for . . . bringing . . . suit.’” Id. (quoting Pickett v. Brown, 638
S.W.2d 369, 376 (Tenn. 1982) rev’d on other grounds 462 U.S. 1, 103 S.Ct. 2199, 76
L.Ed.2d 372 (1983)).

    In this interlocutory appeal, Plaintiffs assert that section 29-26-121 violates both the
procedural and substantive due process provisions of the United States Constitution.
Plaintiffs claim that the statute “is designed to take away the right of a plaintiff to bring suit,
not based upon any consideration of the merits, and not based upon a reasonable statute of
limitations, but by erecting artificial and punitive barriers to suit.” They further contend that
no rational basis exists for the statute because reduction of frivolous lawsuits can be
accomplished by section 29-26-122’s certificate of good faith requirement, and because after
the allegedly HIPAA-violative provisions of section 29-26-121 are eliminated, section 29-26-
121 will no longer work to facilitate early resolution of cases.

   First, we reject Plaintiffs’ contention that section 29-26-121 deprives them of their
property without due process of law. As explained above, section 29-26-121 simply requires
a medical malpractice plaintiff, within the standard statute of limitations, to provide minimal,

                                               -28-
easily-accessible information to health care providers who will be named as defendants, and
several clearly-explained delivery methods for this information are available. For example,
the notice may be personally delivered to the health care provider or to the provider’s
receptionist, or it may be sent via certified mail to the health care provider–without regard
to actual receipt–which, if undelivered, may be resent within five business days. Tenn. Code
Ann. § 29-26-121(a)(3)(B), (a)(4). Once this pre-suit notice is given, the statute affords the
plaintiff an additional 120 days in which to file suit, and statutory non-compliance may be
excused for “extraordinary cause shown.” Section 29-26-121 simply does not deprive
Plaintiffs of a meaningful opportunity to pursue their medical malpractice claim so as to
violate procedural due process.

     Moreover, as we explained in our equal protection analysis, section 29-26-121’s pre-suit
notice requirements bear a reasonable relation to the proper legislative objectives of
preventing protracted litigation through early investigation, and possibly, facilitating early
resolution through settlement. See DePue, 2011 WL 538865, at *5 (citation omitted).
Despite Plaintiffs’ argument that such objectives are applicable to all tort cases and therefore
may not provide grounds for differential treatment within the medical malpractice context,
we find that these objectives are of particular importance in the medical malpractice arena
as, again, increased malpractice insurance costs threaten both health care affordability and
accessibility. Moreover, based upon our above-finding that neither the statute–nor portions
of it–are preempted by HIPAA, we reject Plaintiffs’ argument that the statute is ineffective
to facilitate early case resolution. Accordingly, we conclude that section 29-26-121 passes
substantive due process muster as it is reasonably related to proper legislative purposes and
it is neither arbitrary nor discriminatory. See Newton, 878 S.W.2d at 110 (citations omitted).


                                      V.   C ONCLUSION

     For the aforementioned reasons, we conclude that Tennessee Code Annotated section 29-
26-121 is not an unconstitutional infringement upon the courts’ rule-making authority, that
it is not preempted by HIPAA, and that it does not violate the equal protection and due
process provisions of state and federal law. The case is remanded for further proceedings
consistent with this opinion. Costs of this appeal are taxed to Appellants, Charles Webb and
Evangeline Webb, and their surety, for which execution may issue if necessary.




                                                     _________________________________
                                                     ALAN E. HIGHERS, P.J., W.S.



                                              -29-
