                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                                       April 12, 2013 Session

RICHARD THURMOND v. MID-CUMBERLAND INFECTIOUS DISEASE
               CONSULTANTS, PLC ET AL.

                  Appeal from the Circuit Court for Montgomery County
                    No. MCCCCVMA120053           Ross H. Hicks, Judge


                    No. M2012-02270-COA-R3-CV - Filed April 25, 2013


In this malpractice action, the plaintiff failed to attach proof of service of the statutory notice
and the required affidavit with the complaint. The trial court dismissed the action. We
affirm.

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

A NDY D. B ENNETT, J., delivered the opinion of the Court, in which F RANK G. C LEMENT, J R.,
and R ICHARD H. D INKINS, JJ., joined.

Henry S. Queener, Nashville, Tennessee, for the appellant, Richard Thurmond.

Suzanne M. Pearson, Dan L. Nolan, and Erik Fuqua, Clarksville, Tennessee, for the appellee,
Mid-Cumberland Infectious Disease Consultants, PLC.

                                               OPINION

                                             B ACKGROUND

       This is a medical malpractice1 action which has not reached the merits. This appeal
deals solely with whether the plaintiff met the requirements for filing a malpractice action.

      Richard Thurmond, the plaintiff, received medical treatment from Dr. Simi Vincent,
who conducts his practice through Mid-Cumberland Infectious Disease Consultants, PLC.


        1
         We note that 2012 Tennessee Public Acts Chapter 798 substituted the words “health care liability”
for the words “medical malpractice” in the statute involved in this appeal, Tenn. Code Ann. § 29-26-121, and
other medical malpractice-related statutes.
On January 5, 2012, Thurmond filed a complaint alleging that Dr. Vincent had been
negligent in failing to administer appropriate antibiotics for his urinary tract infection,
causing his condition to worsen. Paragraph 18 of the complaint states:

       The plaintiffs [sic], through counsel, have complied with the provisions of
       T.C.A. §29-26-121(a) which requires that any person asserting a potential
       claim for medical malpractice shall give written notice of such potential claim
       to each health care provider against whom such potential claim is being made
       at least sixty (60) days before the filing of a Complaint based upon medical
       malpractice. On XXXXXX, notice was given to Mid-Cumberland Infectious
       Disease Consultants, PLC and Simi Vincent by sending it to them in
       accordance with T.C.A. §29-26-121(a). A disc containing the documentation
       showing this compliance is attached as Exhibit A.

The disc, however, was not attached. It was subsequently filed on January 17, 2012 as an
exhibit to the complaint.

        The defendants filed an answer on March 14, 2012 that included a Tenn. R. Civ. P.
12.02(6) motion to dismiss for failure to comply with the statutory notice provisions and
failure to state a claim for which relief can be granted. They specifically noted that the
affidavit of the party mailing the notice was not filed. Four days later, the defendants filed
a motion for summary judgment, claiming that the plaintiff had failed to file an affidavit
establishing compliance with the notice requirements of Tenn. Code Ann. § 29-26-121.

        Plaintiff’s attorney filed the affidavit at issue on April 5, 2012. He answered the
defendants’ motion by maintaining that Tenn. Code Ann. § 29-26-121 did not require the
filing of the affidavit with the complaint. On April 24, 2012, plaintiff filed a motion to
amend the complaint to correct several typos and to add a new paragraph which would state:
“On April 5, 2012, plaintiff’s attorney filed an affidavit confirming that pre-suit written
notice of plaintiff’s claims was given to each defendant. A copy of the affidavit is attached
to his first amended complaint as Exhibit C.” The motion for summary judgment and the
motion to amend were both set for July 20, 2012.

        In an order entered August 2, 2012, the trial court “reluctantly” determined that it must
grant the defendants’ motion for summary judgment on the basis that Tenn. Code Ann. § 29-
26-121 required that the affidavit be filed with the complaint. The August 2, 2012 order
stated that the “lawsuit should be dismissed,” and that counsel for the defendants “should
prepare an appropriate order.” Four days later, on August 6, 2012, the trial court granted the
plaintiff’s motion to amend the complaint. Subsequently, on September 13, 2012, the trial
court entered an order granting the defendants’ motion for summary judgment. The

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September 13 order found that the affidavit had to be filed with the complaint and that the
subsequent April 5 filing of the affidavit did not correct the initial failure. The trial court
further found that the plaintiff offered no extraordinary cause to excuse the failure to comply.
The effect of the amendment was not addressed. The plaintiff appealed.

                                    S TANDARD OF R EVIEW

       The Tennessee Supreme Court has observed that:

       [t]he proper way for a defendant to challenge a complaint’s compliance with
       Tennessee Code Annotated section 29-26-121 and Tennessee Code Annotated
       section 29-26-122 is to file a Tennessee Rule of Procedure 12.02 motion to
       dismiss. In the motion, the defendant should state how the plaintiff has failed
       to comply with the statutory requirements by referencing specific omissions
       in the complaint and/or by submitting affidavits or other proof. Once the
       defendant makes a properly supported motion under this rule, the burden shifts
       to the plaintiff to show either that it complied with the statutes or that it had
       extraordinary cause for failing to do so. Based on the complaint and any other
       relevant evidence submitted by the parties, the trial court must determine
       whether the plaintiff has complied with the statutes. If the trial court
       determines that the plaintiff has not complied with the statutes, then the trial
       court may consider whether the plaintiff has demonstrated extraordinary cause
       for its noncompliance. If the defendant prevails and the complaint is
       dismissed, the plaintiff is entitled to an appeal of right under Tennessee Rule
       of Appellate Procedure 3 using the standards of review in Tennessee Rule of
       Appellate Procedure 13. If the plaintiff prevails, the defendant may pursue an
       interlocutory appeal under either Tennessee Rule of Appellate Procedure 9 or
       10 using the same standards.

Myers v. AMISUB (SFH), Inc., 382 S.W.3d 300, 307 (Tenn. 2012). Consequently, we will
treat the motion for summary judgment as a motion to dismiss under Tenn. R. Civ. P. 12.02.

        A motion to dismiss for failure to state a claim challenges the legal sufficiency of the
complaint rather than the strength of the plaintiff’s proof or evidence. Webb v. Nashville Area
Habitat for Humanity Inc., 346 S.W.3d 422, 426 (Tenn. 2011). The motion admits the truth
of all averments contained in the complaint but asserts that such facts do not constitute a
cause of action. Id. In considering a motion to dismiss, courts must liberally construe the
complaint, “‘presuming all factual allegations to be true and giving the plaintiff the benefit
of all reasonable inferences.’” Id. (quoting Tigg v. Pirelli Tire Corp., 232 S.W.3d 28, 31-32
(Tenn. 2007)). The scope of review following the grant or denial of a motion to dismiss

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involves a question of law, which we review de novo, without any presumption of
correctness. Lind v. Beaman Dodge, Inc., 356 S.W.3d 889, 894 (Tenn. 2011).

                                           A NALYSIS

       Fundamental to this case is whether the affidavit must be filed with the complaint, as
the defendants’ maintain, or whether it can be filed later, as the plaintiff maintains.

       The leading rule governing our construction of any statute is to ascertain and
       give effect to the legislature’s intent. To that end, we start with an examination
       of the statute’s language, presuming that the legislature intended that each
       word be given full effect. When the import of a statute is unambiguous, we
       discern legislative intent “from the natural and ordinary meaning of the
       statutory language within the context of the entire statute without any forced
       or subtle construction that would extend or limit the statute’s meaning.”

Myers, 382 S.W.3d at 308 (citations omitted).

       The pertinent portions of Tenn. Code Ann. § 29-26-121(a) and (b) state:

       (a)(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:
       ...
       (4) Compliance with subdivision (a)(3)(B) [mailing of the notice] 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
       with this section only for extraordinary cause shown.

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The use of the word “shall” indicates that the legislature intended the requirements of the
statute to be mandatory. Myers, 382 S.W.3d at 308.

        Tenn. Code Ann. § 29-26-121(a)(3) requires proof of service of the written notice to
be filed “with the complaint.” When the notice is mailed pursuant to Tenn. Code Ann. § 29-
26-121(a)(3)(B), Tenn. Code Ann. § 29-26-121(a)(4) requires demonstrating this fact:

        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 disputed that the required attachments were not filed with the complaint. A
disc containing the documentation was filed as an exhibit to the complaint twelve days after
the complaint was filed. Plaintiff’s attorney filed the required affidavit on April 5, 2012.
Plaintiff did not comply with the mandatory requirements of Tenn. Code Ann. § 29-26-
121(a) and (b). Subsection (b) does state that “[t]he court has discretion to excuse
compliance with this section only for extraordinary cause shown.” Plaintiff admits that no
such extraordinary cause exists. Consequently, we must find, as the trial court did, that the
complaint must be dismissed.

        We further note that, although not argued by the plaintiff, the subsequent amendment
of the complaint does not help his cause. The Eastern Section of this Court recently found
that, “[t]he statutes at issue, however, do not authorize a claimant to cure deficiencies by
filing an amended complaint . . . .” Vaughn v. Mountain States Health Alliance, No. E2012-
01042-COA-R3-CV, 2013 WL 817032, at *6 (Tenn. Ct. App. Mar. 5, 2013). “The
legislature has established in the Act that absent a showing of extraordinary cause by a
plaintiff, a court does not have the discretion to excuse compliance if a complaint is filed that
fails to meet the requirements of Tennessee Code Annotated section 29-26-121.” 2 Id.

       Costs of appeal are assessed against the appellant, Richard Thurmond, for which
execution may issue if necessary.

                                                               ______________________________
                                                                    ANDY D. BENNETT, JUDGE



        2
          We are cognizant of the harsh result reached in this case, where no one claims the notices were not
sent or that any prejudice to the defendants existed. Yet, we are convinced the statute requires this result.

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