                IN THE COURT OF APPEALS OF TENNESSEE
                             AT JACKSON
                                 May 22, 2012 Session

    DEBORAH MASON HAWKINS, AS ADMINISTRATRIX OF THE
   ESTATE OF WAYNE HAWKINS, Deceased, And DEBORAH MASON
   HAWKINS, INDIVIDUALLY v. RODNEY A. MARTIN, M.D., ET AL.

               Direct Appeal from the Circuit Court for Shelby County
                   No. CT-003204-10     John R. McCarroll, Judge


                 No. W2011-02318-COA-R3-CV - Filed July 24, 2012


The trial court granted Defendants’ motion to dismiss in this medical malpractice action
where Plaintiff failed to attach a HIPPA compliant medical authorization to her notice to
Defendants prior to filing her complaint as required by Tennessee Code Annotated § 29-26-
121. Plaintiff appeals. We vacate and remand for further proceedings.

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

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

Darrell J. O’Neal, Memphis, Tennessee, for the appellants, Deborah Mason Hawkins, As
Administrator of the Estate of Wayne Hawkins, Deceased, and Deborah Mason Hawkins,
Individually.

J. Kimbrough Johnson and Elizabeth T. Collins, Memphis, Tennessee, for the appellee,
Rodney A. Martin, M.D.

Brett A. Hughes and Kannon C. Conway, Memphis, Tennessee, for the appellee, Baptist
Memorial Hospital.

                                        OPINION

        This appeal arises from a medical malpractice action commenced in June 2010. The
facts relevant to our disposition of this appeal are not disputed. On March 9, 2010, counsel
for Plaintiff Deborah Mason Hawkins (Ms. Hawkins), acting individually and in her capacity
as administrator of the Estate of Wayne Hawkins, deceased, sent notice of a potential claim
to Baptist Memorial Hospital (“Baptist Hospital”), Charles M. Smith, M.D. (“Dr. Smith”),
Christopher B. Green, M.D. (“Dr. Green”), and Rodney A. Martin, M.D. (“Dr. Martin”). On
June 25, 2010, Ms. Hawkins filed a complaint in the Circuit Court for Shelby County against
Defendants Baptist Hospital and Dr. Martin (collectively, “Defendants”). In her complaint,
Ms. Hawkins stated that she had complied with Tennessee Code Annotated § 29-26-121, and
alleged that Defendants’ medical malpractice proximately caused injuries to and the death
of her husband, Wayne Hawkins. She attached to her complaint the Certificate of Good Faith
required by Tennessee Code Annotated § 29-26-122, and copies of the pre-claim notice
letters to Defendants required by Tennessee Code Annotated § 29-26-121. In August 2010,
Defendants filed motions to dismiss based on Ms. Hawkins’ failure to comply with section
29-26-121. In their motions, Defendants asserted that Ms. Hawkins’ notice letters were not
compliant with the statutory requirements where they failed to include a HIPPA compliant
medical authorization as required by section 29-26-121. Ms. Hawkins responded and
asserted that the motions should be denied where she had substantially complied with the
notice requirements. Ms. Hawkins relied on Howell v. Claiborne and Hughes Health Center,
No. M2009-01683-COA-R3-CV, 2010 WL 2539651(Tenn. Ct. App. June 24, 2010) in
support of her argument that the underlying purpose of the statute had been met where
Defendants were given notice of Ms. Hawkins’ potential claim and a Certificate of Good
Faith had been filed ensuring that the claim had merit. On September 8, 2010, Ms. Hawkins
filed a supplemental response contending that Defendants had not been prejudiced as a result
of her failure to include a HIPPA compliant authorization form with her June notices. She
attached to her response HIPPA compliant authorization forms sent to Defendants on
September 3, 2010.

        Following a hearing on September 30, 2010, the trial court found that Ms. Hawkins
had failed to provide HIPPA compliant medical authorizations with her pre-claim notice
letters as required by Tennessee Code Annotated § 29-26-121(a)(2)(E). The trial court also
found that Ms. Hawkins had not shown “extraordinary cause” to excuse compliance as
permitted by section 29-26-121(b) in her responses to Defendants’ motions to dismiss, but
that she had requested that the trial court permit her to demonstrate extraordinary cause. The
trial court found that a significant witness on this issue, Darrell J. O’Neal (Mr. O’Neal), the
lead attorney of record, was unavailable because he had been deployed to Afghanistan as a
member of the United States military. The trial court accordingly stayed the matter pending
the availability of Mr. O’Neal. On August 10, 2011, the trial court entered a scheduling
order finding that Mr. O’Neal had concluded his military deployment. The trial court set the
matter to be re-heard on September 8, 2011.

      Following the September 8 hearing, the trial court granted Defendants’ motions to
dismiss. The trial court again found that Ms. Hawkins had failed to provide HIPPA

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compliant authorizations prior to filing her complaint, and that she had not asserted that
extraordinary cause excused compliance in her responses to Defendants’ motions to dismiss.
The trial court further found that the reasons provided by Mr. O’Neal at the September 8
hearing did not amount to extraordinary cause justifying excuse from the statute in light of
the applicable case law. The trial court attached the transcript of the hearing on the motion
to its judgment, incorporating it by reference in its order. The trial court entered judgment
dismissing the matter on September 30, 2011, and Ms. Hawkins filed a timely notice of
appeal to this Court.

                                      Issues Presented

       The issues presented for our review, as we perceive and re-word them, are:

       (1)    Whether the trial court abused its discretion by not excusing Ms.
              Hawkins from the requirements of Tennessee Code Annotated § 29-
              26-121(a)(2)(E).

       (2)    Whether the trial court erred by failing to construe Ms. Hawkins’
              complaint liberally.

       (3)    Whether the trial court erred by granting Defendants’ motion to
              dismiss when it considered matters outside the pleadings.

                                         Discussion

       We begin our discussion with Ms. Hawkins’ assertions that the trial court failed to
construe her complaint liberally and erred by considering the question of the HIPPA
compliant authorization where it was a matter outside of the complaint. We note, as an initial
matter, that Ms. Hawkins averred that she had complied with Tennessee Code Annotated §
29-26-121 in her complaint. Notwithstanding that averment, and the March notices to
Defendants attached to the complaint, we will consider a motion to dismiss as a motion for
summary judgment when a trial court considers matters outside of the pleadings. Adams TV
of Memphis v. ComCorp of Tenn., 969 S.W.2d 917, 920 (Tenn. Ct. App.1997). Therefore,
where it is necessary to review the record, we view the evidence in a light most favorable to
the nonmoving party. Staples v. CBL & Assoc., Inc., 15 S.W.3d 83, 88 (Tenn. 2000).

       In this case, Ms. Hawkins acknowledges in her brief that the HIPPA compliant
authorizations “might” not have been sent to Defendants. However, the record contains no
proof to dispute Defendants’ assertion that they were not. Mr. O’Neal testified at the
September 2011 hearing on the matter that he had obtained a signed HIPPA compliant

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authorization form from Ms. Hawkins and that was in his file. He acknowledged, however,
that he “[could] not say, with certainty, that [he], in fact, sent the medical authorization” to
Defendants. Upon review of the record, we note that no HIPPA compliant authorization was
attached to Ms. Hawkins’ complaint, and neither the affidavits nor notices attached to Ms.
Hawkins’ complaint reference a HIPPA compliant authorization. The only authorization
complying with section 29-26-121(a)(2)(E) contained in the record is the one sent to
Defendants in September 2010, after Defendants filed their motions to dismiss. Mr.
O’Neal’s assertion that the authorization “might” have been sent does not constitute proof
that it was.

       We accordingly turn to whether the trial court erred in granting Defendants’ motions
to dismiss. In her brief, Ms. Hawkins appears to argue that her complaint, liberally
construed, presents a prima facie claim of medical malpractice and, therefore, should not
have been dismissed. Upon review of the record, we find no error on the part of the trial
court with respect to construing Ms. Hawkins’ complaint. The only issues before the trial
court were whether Ms. Hawkins failed to comply with section 29-26-121(a)(2)(E) and, if
so, whether that failure should be excused for extraordinary cause pursuant to section 29-26-
121(b).

       Section 29-26-121 provides, in relevant part:
       (a)(1) Any person, or that person’s authorized agent, asserting a potential claim
       for medical malpractice 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.
               ....
               (b) If a complaint is filed in any court alleging a claim for medical

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       malpractice, 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 with this section only for extraordinary cause shown.

Tenn. Code Ann. § 29-26-121(a) & (b)(Supp. 2011)(emphasis added). Thus, the statute
allows the trial court to excuse compliance with the mandatory requirements of subsection
(a) only upon a showing of extraordinary cause.

        We have noted that the legislative intent of section 29-26-121 is “to provide notice to
health care providers of potential claims against them so that they might investigate the
matter and perhaps settle the claim[.]” Howell v. Claiborne and Hughes Health Ctr., No.
M2009-01683-COA-R3-CV, 2010 WL 2539651, at *16 (Tenn. Ct. App. June 24,
2010)(citations omitted). Ms. Hawkins asserts that, in this case, she substantially complied
with the intent of the statute and Defendants were not prejudiced by her failure to include a
HIPPA compliant authorization. She submits that Dr. Martin was the only physician sued
and that he obviously had access to his own records. She further asserts that she substantially
complied with the statutory requisites, and this substantial compliance satisfies the legislative
intent of providing notice of a potential claim.

        These arguments must fail for two reasons. First, we have held that a showing that
the defendant was not prejudiced by non-compliance with the subsection 121(a) does not
excuse such non-compliance under the express plain language of the statute. See Myers v.
AMISUB (SFH), Inc., d/b/a St. Francis Hospital, et al., No. W2010-00837-COA-R9-CV,
2011 WL 664753, at *8 (Tenn. Ct. App. Feb. 24, 2011)(perm. app. granted Aug. 23, 2011).
Second, we have held that substantial compliance with the “spirit” of the statute is not
sufficient to satisfy its mandatory language.                 DePue v. Schroeder, No.
E2010–00504–COA–R9–CV, 2011 WL 538865, at *8 (Tenn. Ct. App. Feb.15, 2011).
Section 29-26-121(a)(2) contains a list of elements which a potential claimant “shall” provide
when notifying healthcare providers of a potential claim. We have held that its language is
mandatory. Id. Additionally, in addition to the data which must be contained in the notice,
the section mandates that a potential claimant provide potential defendants with HIPPA
complaint authorizations so that they might fully investigate the matter in order to possibly
settle a meritorious claim. Ms. Hawkins failed to provide such authorization.

       Ms. Hawkins also asserts that the trial court should have fashioned a less drastic
remedy by allowing the HIPPA compliant authorization to be submitted late. The mandatory
language of the statute, however, gives the court discretionary authority to excuse compliance
only upon a showing of extraordinary cause. The statute does not permit the trial court to

                                               -5-
fashion additional or alternative remedies, and we have held that failure to comply with the
statutory requirements will result in dismissal of the action. Id. (citing Long v. Hillcrest
Healthcare–West, 2010 WL 1526065 (Tenn. Ct. App. Apr.16, 2010). Moreover, Ms.
Hawkins’ attempt to remedy the matter by sending HIPPA authorizations to Defendants in
September 2010 does not serve to cure the statutory breach. In DePue, we held that the
plaintiff’s complaint was barred where it was filed 53 days after plaintiff sent the requisite
notices to defendants, seven days sooner than is permitted by section 20-26-121(a)(1). We
held that the timing of the section is mandatory. Id. Ms. Hawkins’ late provision of the
HIPPA complaint authorization simply does not cure her failure to provide authorization
before filing the lawsuit.

        We accordingly turn to whether the trial court abused its discretion by determining
that Ms. Hawkins failed to demonstrate that extraordinary cause existed to excuse
compliance with section 29-26-121(a)(2)(E). When reviewing a trial court’s discretionary
decision, we will uphold the ruling “‘so long as reasonable minds can disagree as to propriety
of the decision made.’” Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001) (quoting State
v. Scott, 33 S.W.3d 746, 752 (Tenn. 2000); State v. Gilliland, 22 S.W.3d 266, 273 (Tenn.
2000)). An abuse of discretion occurs when the trial court “‘applie[s] an incorrect legal
standard, or reache[s] a decision which is against logic or reasoning that cause[s] an injustice
to the party complaining.’” Id. (quoting State v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999)).
Under the abuse of discretion standard, the appellate court may not substitute its judgment
for the judgment of the trial court. Id. (citing Myint v. Allstate Ins. Co., 970 S.W.2d 920, 927
(Tenn. 1998)).

        The trial court’s discretion however, does not free it from its “responsibility to
exercise reason and judgment.” Langlois v. Energy Automation Sys., Inc., 332 S.W.3d 353,
357 (Tenn. Ct. App. 2009)(citations omitted). We have recognized that a trial court’s
discretionary decisions ““are not left to a court’s inclination, but to its judgment; and its
judgment is to be guided by sound legal principles.”” Id. (quoting Pegues v. Ill. Cent. R.R.
Co., 288 S.W.3d 350, 353 (Tenn. Ct. App. 2008)(quoting State v. Lewis, 235 S.W.3d 136,
141 (Tenn. 2007)). “A discretionary decision will not stand if the trial court fails to apply
the relevant statutory, legal, or procedural framework intended to guide its determination.”
Id. (citing id.).

        At the September 2011 hearing of this matter, Ms. Hawkins asserted that Mr.
O’Neal’s circumstances in March 2010 constitute extraordinary cause. Mr. O’Neal testified
at the hearing that he is a solo practitioner and a reservist in the Army; that he received Ms.
Hawkins’ case in December 2009; and that in January 2010 he received notice that he was
being deployed by the Army to Iraq. He further testified that in February 2010 he received
notice that he was to be deployed to Afghanistan, and that he began looking for another

                                              -6-
attorney to maintain his office. Mr. O’Neal testified that in March 2010 he was training for
the up-coming deployment and was “probably out of the office more than [he] was in the
office[.]” He testified that he was not aware that the HIPPA authorizations had not been
received by Defendants, and that in June 2010 he prepared the complaint, notice of
deposition, interrogatories, and requests for production of documents, in addition to the
petition, which were filed on June 25. He testified that while he was in the process of
training for deployment, he contracted with LaShawn Williams (Ms. Williams), who
represented Ms. Hawkins at the September 2010 hearing on Defendants’ motion to dismiss.
Mr. O’Neal testified that he was in Afghanistan when he received an e-mail from Ms.
Williams notifying him that Defendants had filed a motion to dismiss. He testified that he
knew he had obtained a medical authorization; that he instructed Ms. Williams to search the
file; and that Ms. Williams found the authorization in the file. Mr. O’Neal testified that he
believed he had sent the authorization, but that he could not testify with certainty that he had.
He stated, “but for my mission, I would be sitting here saying that these people are lying. But
I can’t say that with certainty, because of my being deployed.” Upon cross-examination, Mr.
O’Neal acknowledged that the authorization form in his file was not dated, but that it was
signed in December 2009. He testified, “I can’t say with certainty, that I put, with specificity,
every document that’s enclosed inside of the letter.” He further testified that his secretary
mailed the notice letter, and that her affidavit did not reference the medical authorization.
At the conclusion of his testimony, Mr. O’Neal observed that the legislature had fashioned
section 29-26-121 as a “shield” against frivolous claims, but that Defendants had used it as
a “sword.” He asserted that, had they been acting in good faith to resolve the case,
Defendants should have “pick[ed] up the phone and [said], ‘hey, you sent me everything, but
you didn’t send me the health information form.’”

        The trial court stated that he agreed with Mr. O’Neal’s interpretation of the statute,
but that the “problem that exist[ed]” was this Court’s prior holdings. The trial court stated,
“both Depue and the Opinion written by Judge Farmer, in Myers vs. AMISUB, don’t give me
a lot of leeway. They don’t give me much choice I don’t think.” The trial court stated that
it believed its “hands [were] tied” by our decisions in DePue and Myers, and that these cases
stood for the proposition that “attorney oversight, whether it’s because you’re going to
Afghanistan or whatever, is not even good cause and doesn’t rise to the level of extraordinary
cause.” The trial court further stated,

       I don’t think it’s right. I think, in your situation, that this is the wrong result.
       But I’m doing it because I understand Tennessee law to be different.

       So, if you appeal it and you reverse me, you will see a smile on my face, and
       I will be very, very glad to see you come back.



                                               -7-
        We must disagree with the trial court that either DePue or Myers compels, as a matter
of law, the decision reached in this case. The plaintiffs in those cases could forward no
justification for attorney oversight, but merely asserted that noncompliance with the statute
should be excused where the defendants had actual notice of the claim and were not
prejudiced by the lack of compliance. In DePue, plaintiff’s counsel stated that she had
misread or misunderstood the statutory provision extending the statute of limitations, and that
she had filed the complaint prior to the expiration of 60 days by oversight. DePue, 2011 WL
5388645, at *8. The plaintiff in Myers argued that section 29-26-121 was not applicable in
that case because plaintiff’s original claim, followed by a voluntary nonsuit, provided
defendants with ample notice of the re-filed claim against them. The Myers plaintiff asserted
that the trial court was “‘justified in waiving’” the statutory requirements “‘due to the
previous two years of litigation.’” Myers, 2011 WL 664753, at *8-9. In neither DePue nor
Myers did plaintiffs assert good cause, much less unique, extraordinary circumstances, that
would excuse compliance.

        Section 29-26-121(b) authorizes the trial court to excuse compliance with the section
when, in the exercise of its sound and reasoned discretion, the trial court finds that
noncompliance resulted from extraordinary cause. “Extraordinary cause,” however, is not
defined by the statute. We have held that mere attorney oversight, unaccompanied by
extraordinary circumstances, does not constitute extraordinary cause. We have not held,
however, that a trial court does not have the discretion to excuse compliance for attorney
oversight caused by unique and extraordinary circumstances. It is the duty of the trial court
to weigh the entirety of the circumstances and to determine whether extraordinary cause
exists on a case by case basis.

        As noted above, under the abuse of discretion standard of review, we will set aside
a trial court’s decision if it is based on an error of law or the “relevant . . . legal . . .
framework.” Langlois, 332 S.W.3d at 357. Upon review of the record in this case, it is clear
that the trial court construed DePue and Myers as foreclosing the possibility of excuse from
the section 29-26-121(a) based on attorney oversight regardless of the attendant
circumstances. The trial court accordingly did not exercise its discretion, but perceived it had
no discretion in the matter based on its misreading of DePue and Myers. We disagree with
the trial court that this is the legal framework created by DePue and Myers.

                                            Holding

        In light of the foregoing, we vacate the judgment of the trial court and remand this
matter to the trial court for further proceedings consistent with this Opinion. Upon remand,
the trial court is instructed to exercise its discretion to determine whether, under the totality
of the circumstances, extraordinary cause exists under section 29-26-121(b) to excuse

                                               -8-
compliance with section 29-26-121(a). Cost of this appeal are taxed one-half to the
Appellees, Rodney A. Martin, M.D. and Baptist Memorial Hospital, and one half to
Appellant, Deborah Mason Hawkins, As Administratrix of the Estate of Wayne Hawkins,
Deceased, and Deborah Mason Hawkins, Individually, and her surety, for which execution
may issue if necessary.


                                               _________________________________
                                               DAVID R. FARMER, JUDGE




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