                IN THE COURT OF APPEALS OF TENNESSEE
                             AT JACKSON
                                  May 22, 2013 Session

PEARLIE MAE DUNIGAN, Next of Kin/Personal Representative of Estate of
     GROVER DUNIGAN, Deceased v. STATE OF TENNESSEE

        Direct Appeal from the Claims Commission of the State of Tennessee
               No. 20110513    Nancy Miller-Herron, Commissioner


                 No. W2012-01245-COA-R3-CV - Filed June 27, 2013


This appeal involves a claim for damages filed with the Tennessee Claims Commission,
arising out of the death of an inmate while he was housed in a state penitentiary. The Claims
Commission denied the claimant’s motion for a default judgment. Thereafter, the Claims
Commission determined that the gravamen of the complaint was for medical malpractice, and
consequently, it granted the State’s motion to dismiss based upon the claimant’s failure to
comply with various provisions of the Medical Malpractice Act. The claimant appeals. For
the following reasons, we affirm.


    Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Claims Commission
                                      Affirmed

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.

Pearlie Mae Dunigan, Chattanooga, Tennessee, pro se

Robert E. Cooper, Jr., Attorney General and Reporter, William Young, Solicitor General,
Pamela S. Lorch, Senior Counsel, Nashville, Tennessee, for the appellee, State of Tennessee
                                   MEMORANDUM OPINION 1

                              I.   F ACTS & P ROCEDURAL H ISTORY

        On December 16, 2009, Grover Dunigan died while he was housed as an inmate at
the West Tennessee State Penitentiary in Henning, Tennessee. In November of 2010, several
members of Mr. Dunigan’s family filed claims with the State of Tennessee Division of
Claims Administration seeking to recover damages based upon Mr. Dunigan’s death. At
least five separate claims were filed by Mr. Dunigan’s sisters, his brothers, and his mother.
One of the claims was filed by Annette Jackson (Mr. Dunigan’s sister) on behalf of Pearlie
Mae Dunigan (Mr. Dunigan’s mother). The claim alleged that Mr. Dunigan “met an
untimely death due to prison officials blatant gross negligence & deliberate indifference to
the serious/sever[e] medical condition” of Mr. Dunigan. (capitalization and internal
quotation marks omitted). The claim contained the following factual allegations:

               On December 10, 2009, Mr. Dunigan reported to what the prison
       system labels "Sick-Call" {note; this is a procedure all TDOC inmates must
       follow in order to be seen by the nurse, doctor and or nurse practitioner} A
       Donna Chisholm whose signature is shown on the "sick-call" form that Mr.
       Dunigan Filled out, - diagnosed Mr. Dunigan and ordered that he report back
       to his housing unit and be placed on an AVO = "Restricted/limited activity" for
       three days, due to his medical problem" . . . {note; this doctor's order was
       applicable until the 10th day of December 2009}... Obviously sometime during
       that period of time Mr. Dunigan became "Too sick to remain" in his regular
       housing unit and was placed in the infirmary. {note; this is an area where
       inmates who become so seriously sick that they require more closely monitored
       medical attention are placed/housed, even to the extent of sending the inmate
       to an outside health care facility}...
               This was an obvious "Mis-Judgment" medical call by one of the prison
       system's medical staff members, and inevitably led to the untimely demise of
       Mr. Dunigan.
               TDOC's own policy mandates that "If and whenever an inmate becomes
       severely ill, he/she must be moved to an outside hospital. Mr. Dunigan Died

       1
           Rule 10 of the Rules of the Court of Appeals of Tennessee states:

       This Court, with the concurrence of all judges participating in the case, may affirm, reverse
       or modify the actions of the trial court by memorandum opinion when a formal opinion
       would have no precedential value. When a case is decided by memorandum opinion it shall
       be designated “MEMORANDUM OPINION”, shall not be published, and shall not be cited
       or relied on for any reason in any unrelated case.

                                                   -2-
       while the prison system debated over whether or not they should send him to
       an outside hospital. A Thyroid problem could have been easily cured if prison
       administrators had acted pursuant to the severe medical need/condition of Mr.
       Dunigan.

The other four claims contained essentially the same allegations.

       On February 4, 2011, the claims were transferred from the Division of Claims
Administration to the Tennessee Claims Commission pursuant to Tennessee Code Annotated
section 9-8-402(c).2 On February 11, 2011, the Claims Commission entered an “Initial Order
Governing Proceedings,” which directed the claimants to file a formal complaint. Two
separate complaints were filed on March 10, 2011. Mr. Dunigan’s sister Pearlene Kelly filed
one complaint, purportedly “for the Estate of ‘Former Inmate Grover Dunigan,’” and a
second complaint was filed by his sister Annette Jackson on behalf of his mother Pearlie Mae
Dunigan, also stating that it was “for [the] Estate of Grover Dunigan.” The complaint filed
by Mr. Dunigan’s mother alleged that Mr. Dunigan “met an un-timely death while in the
custody of the State OF Tennessee Department OF Corrections' [hereinafter referred to as
the TDOC] West Tennessee State Penitentiary, located in Henning Tennessee, as a direct
result of TDOC's Gross Negligence & Deliberate Indifference to the Serious immediate
medical needs/care of former inmate Grover Dunigan.”

         On April 20, 2011, the State of Tennessee filed a motion for an extension of time to
respond to the complaints, stating that further time was needed to investigate the matter and
to file a proper response. The Claims Commission entered an order granting the motion and
extending the time for the State to respond until May 20, 2011. On May 19, 2011, the State
filed a motion to strike, in which it noted that two separate complaints had been filed by
different parties. The State asked the Commission to direct the claimants to submit proof as
to which of them had the legal authority to represent the Estate of Grover Dunigan. The
State asked the Commission to determine the proper person to represent the Estate and to
strike the complaint submitted by the person who lacked authority, so that the State could
then respond to the remaining complaint.

       Before the Commission ruled on the motion to strike, a motion for default judgment


       2
           Tennessee Code Annotated section 9-8-402(c) provides, in relevant part:

       The division of claims administration shall investigate every claim and shall make every
       effort to honor or deny each claim within ninety (90) days of receipt of the notice. . . . If the
       division fails to honor or deny the claim within the ninety-day settlement period, the division
       shall automatically transfer the claim to the administrative clerk of the claims commission.

                                                     -3-
was filed by Annette Jackson acting on behalf of Pearlie Mae Dunigan. She argued that a
default judgment should be entered against the State because it still had not filed a response
to the original complaint she filed with the Commission. The State filed a response in which
it pointed out that it had appeared and filed a motion to strike the dual complaints.

       On June 15, 2011, the Commission entered an order finding that “in order for this
claim to proceed before the Commission, the Estate’s legal representative must be
established.” The Commission ordered the various claimants to submit proof of their
authority to represent Mr. Dunigan’s Estate, and it explained that once the Commission made
a determination as to the proper representative of the Estate, it would rule on the State’s
motion to strike the improper complaint. In response, Mr. Dunigan’s sisters submitted
affidavits in which they “yielded” to the right of Mr. Dunigan’s mother, Pearlie Mae
Dunigan, to pursue the claim as his next of kin.

        On July 11, 2011, the Commission entered an order granting the State’s motion to
strike the complaint filed by Pearlene Kelly, and it ordered the State to file its responsive
pleading by August 15, 2011. The order also denied the motion for default judgment filed
by Pearlie Mae Dunigan.

        On August 12, 2011, the State filed a motion to dismiss the remaining complaint, filed
by Pearlie Mae Dunigan (hereinafter, “Claimant”), for failure to state a claim, because her
formal complaint failed to state any facts other than that Mr. Dunigan died while
incarcerated, as a result of negligence and deliberate indifference, and it did not specify what
events occurred that allegedly constituted negligence or indifference. Claimant filed a
response and a “Supplemental Pleading,” in which she sought to supplement the record with
Mr. Dunigan’s medical records and a letter from a registered nurse who had reviewed Mr.
Dunigan’s medical records. In the letter, the nurse opined that the diagnosis made by the
prison’s medical doctor indicated a “medical emergency,” for which the medical doctor
should have transferred Mr. Dunigan to an emergency facility. The supplemental pleading
filed by Claimant alleged that “the Tennessee Department of Corrections owed the Deceased,
Grover Dunigan a duty of due care to provide adequate medical care and treatment” while
he was an inmate. (emphasis in original). In an attempt to demonstrate that the
“Defendants” had breached that duty, Claimant’s pleading alleged six facts:

       1.     The medical testing and reports conducted by Defendant medical
              personnel together with the Autopsy report of the decedent indicate
              Squamous Cell Carcinoma.
       2.     The Autopsy reports that the pathology most likely contributed to the
              death of Claimant was Atherosclerotic Coronary Artery Disease.
       3.     Based on the lab findings of December 15, 2009 indicated

                                              -4-
                “inflam[m]atory process”, abnormal Urinalysis- increased protein,
                incre[a]sed specific gravity, Keotones and occult blood sug[g]esting
                acute kidney injury.
        4.      Claimant was diagnosed with symptoms of a “Thyroid Storm[”]
                indicating a medical emergency.
        5.      Claimant was not transported to an Emergency Facility in accordance
                with departmental policies and procedures.
        6.      Although Claimant presented Fever greater than 101 multiple times
                Blood Cultures were not performed even though symptoms of Sepsis
                were present multiple times and Claimant was not transported to an
                Emergency Facility in accordance with departmental policies and
                procedures.

The supplemental pleading alleged that the “Defendant’s negl[i]gent breach of duty was the
direct and proximate cause” of Mr. Dunigan’s death.

        After the supplemental pleading was filed, the State filed a motion to dismiss based
upon the Claimant’s failure to comply with various provisions of the Tennessee Medical
Malpractice Act, including Tennessee Code Annotated section 29-26-121, which requires
sixty-day notice to defendant health care providers prior to the filing of a complaint for
medical malpractice, and section 29-26-122, which requires that a certificate of good faith
be filed along with the complaint.3 The State asserted that Claimant had not demonstrated
any extraordinary cause for failing to comply with the Act’s requirements.

       Claimant filed a response to the motion to dismiss, basically arguing that her claim
was not one for medical malpractice. She argued, “Adequate medical care is not the same
as negligent medical treatment.”

      On April 26, 2012, the Claims Commission entered an order granting the State’s
motion to dismiss the complaint. The order included the following relevant findings:

               Under Tennessee law, where a complaint alleges facts relating to
        services that require specialized training, such as a determination of whether
        medical symptoms require emergency transport to an outside hospital, the
        attendant duty to such services is the professional duty arising from the


        3
           In 2012, while this case was pending, numerous sections of the Medical Malpractice Act were
amended to replace the “medical malpractice” language with the phrase “health care liability.” Because the
term “medical malpractice” was used in the relevant statutes at the time of this action, we will continue to
use it throughout this opinion.

                                                    -5-
       provision of medical care. It is clear, and the Commission therefore FINDS,
       that the gravamen of the Claimant’s claim is one for medical malpractice.

The Commission pointed out that Claimant’s initial claim, filed with the Division of Claims
Administration, alleged that a “‘Mis-Judgment’ medical call by one of the prison system’s
medical staff members” led to Mr. Dunigan’s demise, and her supplemental pleading
outlined the ways that the State allegedly failed “to provide adequate medical care.” The
Commission noted that a failure to comply with the requirements of the Medical Malpractice
Act can only be excused upon a showing of extraordinary cause, or if the defendant failed
to comply with a request for medical records, and it stated, “Under the facts of this case, the
Commission regrettably has no authority to excuse compliance with § 29-26-121.”

        Claimant timely filed a notice of appeal. That same day, Claimant filed a motion to
reconsider with the Claims Commission, in which she claimed that she was “prevented from
knowing and/or ascertaining who the parties were to be sued” until she received the State’s
discovery responses while this case was pending, and she “was therefore prevented [from]
complying with TCA 29-[2]6-122.” Claimant also argued, in her motion to reconsider, that
“TDOC Wardens are not healthcare providers but administrators.” Claimant argued that the
prison warden is responsible for ensuring that inmates have timely access to healthcare
pursuant to Tenn. Code Ann. § 4-3-603 and -606, and she claimed that the warden’s duty was
“over and above the healthcare provider(s).” She again asserted that “adequate medical care
is not the same as negligent medical treatment.”

      The Commission entered an order denying the motion to reconsider on July 13, 2012.
The Commission again recited the aforementioned allegations from Claimant’s initial claim
and her supplemental pleading and found that the gravamen of the complaint was medical
malpractice. The Commission found that no certificate of good faith had been filed pursuant
to Tennessee Code Annotated section 29-26-122, and it stated:

               Claimant references no cause justifying waiver of the certificate of good
       faith other than the contention that this cause of action is not one for medical
       malpractice but for negligent care, custody and control of persons under Tenn.
       Code Ann. § 9-8-307(a)(1)(e). Although the Commission recognizes the
       difficulty of handling a medical malpractice claim pro se, Claimant has
       demonstrated no cause that would support the waiver of Tenn. Code Ann. §
       29-26-122, much less extraordinary cause. Thus, it is simply not in the
       discretion of the Commission to waive the requisites of the aforementioned
       statute.




                                              -6-
                                       II.     I SSUES P RESENTED

        Claimant presents the following issues, as we perceive them, for review on appeal:
1.      Whether the Commission erred in denying Claimant’s motion for default judgment;
2.      Whether the Claimant properly asserted a claim against the warden; and
3.      Whether the Claimant’s failure to file a certificate of good faith should have been
        excused on the basis of extraordinary cause.

For the following reasons, we affirm the decision of the Claims Commission.4

                                             III.   D ISCUSSION

                                A.     Motion for Default Judgment

       Tennessee Rule of Civil Procedure 55.01 provides that “[w]hen a party against whom
a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided
by these rules and that fact is made to appear by affidavit or otherwise, judgment by default
may be entered[.]”5 On appeal, Claimant argues that the Claims Commission should have
granted her motion for default judgment against the State due to its delay in filing a
responsive pleading in this matter. She claims that the State failed to respond for more than
six months after her initial claim was filed. A short recap of the timeline of events is helpful
in reviewing this issue:

        • November 2010          Five separate claims were filed with the Division of
                                 Claims Administration on behalf of Grover Dunigan

        • Feb. 2, 2011           The claims were transferred to the Claims Commission




        4
          Although Claimant was the appellant in this matter, she did not appear at oral argument before this
Court on May 22, 2013. On June 10, 2013, Claimant filed a written “Notice” with this Court stating that she
was not notified of the date of oral argument, and therefore, she asked this Court to consider additional
written arguments, which she submitted along with her “Notice.” We have considered Claimant’s additional
written arguments in resolving the issues before us.
        5
          With certain exceptions, proceedings before the Claims Commission are conducted pursuant to
the Tennessee Rules of Civil Procedure. Hembree v. State, 925 S.W.2d 513, 515 n.5 (Tenn. 1996); see Tenn.
Code Ann. § 9-8-403(a)(1); Tenn. Comp. R. & Regs. 0310-01-01-.01. Because the Commission's Rules of
Procedure do not modify Tennessee Rule of Civil Procedure 55, it applies to claims before the Commission
in the same manner as it would to a claim brought in circuit or chancery court. Cf. Madison v. State, No.
E2003-01537-COA-R3-CV, 2004 WL 101633, at *4 (Tenn. Ct. App. Jan. 22, 2004).

                                                     -7-
       • Feb. 11, 2011      The Commission ordered the filing of a formal complaint

       • Mar. 10, 2011      Two separate complaints were filed on behalf of the
                            Estate of Grover Dunigan

       • Apr. 20, 2011      The State filed a motion for extension of time to respond
                            to the complaints

       • Apr. 20, 2011      The Commission granted an extension of time until May
                            20, 2011

       • May 19, 2011       The State filed a motion to strike, asking the court to
                            determine which claimant had authority to represent the
                            estate and to strike the unauthorized complaint

       • June 10, 2011      Claimant filed a motion for default judgment

       • June 15, 2011      The Commission entered an order finding that it was
                            necessary to establish the proper legal representative of
                            the estate before the claim could proceed, and ordered
                            the claimants to submit proof on that issue

       • June 20, 2011      Claimant’s daughters submitted affidavits “yielding” to
                            Claimant’s rights

       • July 11, 2011      The Commission entered an order striking the complaint
                            filed by Claimant’s daughter, ordering the State to
                            respond to the Claimant’s complaint, and denying
                            Claimant’s motion for default judgment

In short, at the time when Claimant filed the motion for default judgment, the Claims
Commission had already entered an order granting the State’s motion for an extension of
time within which to respond to the complaint, and during that extended time period, the
State had filed a motion to strike based on the fact that there were two complaints pending.
The Claims Commission determined that it was necessary to establish the proper
representative of the Estate before the claim could proceed, and it ultimately granted the
State’s motion to strike and ordered the State to respond to the remaining complaint filed by
the Claimant.




                                             -8-
      A default judgment is a drastic sanction that is not favored by the courts. Henry v.
Goins, 104 S.W.3d 475, 481 (Tenn. 2003). A decision as to whether to enter a default
judgment is reviewed for abuse of discretion. State ex rel. Jones v. Looper, 86 S.W.3d 189,
193 (Tenn. Ct. App. 2000) (citing Patterson v. Rockwell Int'l, 665 S.W.2d 96, 100 (Tenn.
1984)).

               A party seeking to have a lower court's holding overturned on the basis
       of abuse of discretion undertakes a heavy burden. The abuse of discretion
       standard is intended to constrain appellate review and implies “less intense
       appellate review and, therefore, less likelihood of reversal.” BIF v. Service
       Constr. Co., No. 87-136-II, 1988 WL 72409, at * 2 (Tenn. Ct. App. July 13,
       1988)[.] As a general principle, an appellate court will not reverse a decision
       that lies within the discretion of the trial court unless it affirmatively appears
       that the lower court's decision was against logic or reasoning and caused
       injustice to the complaining party. See Ballard v. Herzke, 924 S.W.2d 652,
       661 (Tenn. 1996). The fact that a decision is discretionary with a trial court
       necessarily implies that the trial court has a choice of alternatives among a
       range of acceptable ones; the reviewing court's job is to determine whether the
       trial court's decision is within the range of acceptable alternatives, given the
       applicable legal principles and the evidence in the case. See BIF, 1988 WL
       72409, at * 3.

Id. at 193-94. We find no abuse of the trial court’s discretion in denying Claimant’s motion
for a default judgment.

                                  B.    The Prison Warden

       Next, Claimant argues that “TDOC Wardens are not healthcare providers but
administrators.” She essentially argues that the warden had a duty “that supersede[d] that of
the healthcare provider,” to ensure that Mr. Dunigan received adequate medical care.
Despite these arguments on appeal, there is not a single factual allegation referencing the
prison warden in Claimant’s formal complaint filed with the Commission, in her
supplemental pleading, or in her initial claim filed with the Division of Claims
Administration. Her first attempt to construe her claim as one against the prison warden
came in her “Motion to Reconsider,” which was filed after the Commission dismissed her
complaint, and which was denied by the Commission. Because Claimant failed to allege a
discernible claim against the prison warden, we find no merit in this issue as it is presented
on appeal.




                                              -9-
                     C.    Failure to File a Certificate of Good Faith

       Finally, Claimant’s brief presents an issue regarding whether she “was prevented from
knowing and/or ascertaining who the parties were to be sued and was therefore prevented
from complying with TCA 29-[2]6-122.” However, the section of Claimant’s brief that
should address this issue fails to provide any citations either to the record or to any relevant
authority. Instead, she diverges into another discussion of why she believes her motion for
default judgment should have been granted. She ends her argument by stating that this issue
“should require no citation[.]” We disagree. “‘Courts have routinely held that the failure to
make appropriate references to the record and to cite relevant authority in the argument
section of the brief as required by Rule 27(a)(7) constitutes a waiver of the issue.’” Forbess
v. Forbess, 370 S.W.3d 347, 355 (Tenn. Ct. App. 2011) (quoting Bean v. Bean, 40 S.W.3d
52, 55-56 (Tenn. Ct. App. 2000)); see also Tellico Village Property Owners Ass'n, Inc. v.
Health Solutions, LLC, No. E2012-00101-COA-R3-CV, 2013 WL 362815, at *3 (Tenn. Ct.
App. Jan. 30, 2013) (“‘Where a party makes no legal argument and cites no authority in
support of a position, such issue is deemed to be waived and will not be considered on
appeal.’”) (quoting Hawkins v. Hart, 86 S.W.3d 522, 531 (Tenn. Ct. App. 2001)). “[P]arties
must thoroughly brief the issues they expect the appellate courts to consider.” Waters v.
Farr, 291 S.W.3d 873, 919 (Tenn. 2009). “It is not the role of the courts, trial or appellate,
to research or construct a litigant's case or arguments for him or her, and where a party fails
to develop an argument in support of his or her contention or merely constructs a skeletal
argument, the issue is waived.” Sneed v. Bd. of Prof'l Responsibility of Sup. Ct., 301
S.W.3d 603, 615 (Tenn. 2010).

        Because Claimant failed to develop an argument regarding this issue and did not
provide any citations to the record or to relevant authority, we deem this issue waived. While
we realize the “legal naivete” of a pro se litigant, “we must not allow him an unfair
advantage because he represents himself.” Frazier v. Campbell, No. W2006-00031-COA-
R3-CV, 2006 WL 2506706, at *3 (Tenn. Ct. App. Aug.31, 2006) (citing Irvin v. City of
Clarksville, 767 S.W.2d 649, 651-52 (Tenn. Ct. App. 1989)). “Pro se litigants who invoke
the complex and technical procedures of the courts assume a very heavy burden.” Irvin, 767
S.W.2d at 652 (citing Gray v. Stillman White Co., 522 A.2d 737, 741 (R.I.1987)). They are
entitled to fair and equal treatment, but they must follow the same substantive and procedural
requirements as a represented party, and they may not shift the burden of litigating their case
to the courts. Whitaker v. Whirlpool Corp., 32 S.W.3d 222, 227 (Tenn. Ct. App. 2000).




                                              -10-
                                   IV.   C ONCLUSION

       For the aforementioned reasons, we affirm the decision of the Claims Commission.
Costs of this appeal are taxed to the appellant, Pearlie Mae Dunigan, next of kin/personal
representative of the Estate of Grover Dunigan, for which execution may issue if necessary.

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




                                           -11-
