                                                                                          02/05/2018
               IN THE COURT OF APPEALS OF TENNESSEE
                            AT JACKSON
                               February 1, 2018 Session

  CHERYL DORTCH, PERSONAL REPRESENTATIVE OF ESTATE OF
    LATAVIUS DUJUAN DORTCH v. METHODIST HEALTHCARE
                MEMPHIS HOSPITALS, ET AL.

               Direct Appeal from the Circuit Court for Shelby County
                   No. CT-003805-16     Robert L. Childers, Judge


                            No. W2017-01121-COA-R3-CV


This is a health care liability case. Appellant/Plaintiff first filed suit against
Appellees/Defendants for medical malpractice in April 2014. Defendants filed motions
to dismiss based on Plaintiff’s failure to comply with the pre-suit notice requirements for
health care liability claims. Before the trial court could hear Defendants’ motions to
dismiss, Plaintiff filed a notice of voluntary nonsuit, and an order was entered thereon.
Plaintiff subsequently re-filed her case against Defendants in September 2016 in reliance
on the one year savings statute. Defendants moved the court to dismiss Plaintiff’s suit
based on the statute of limitations. The trial court granted Defendants’ motions and
dismissed Plaintiff’s claims with prejudice, holding that, because Plaintiff’s original pre-
suit notice was defective, her first complaint was untimely and she could not rely on the
savings statute to revive a time-barred cause of action. We affirm the judgment of the
trial court.

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

BRANDON O. GIBSON, J., delivered the opinion of the court, in which J. STEVEN
STAFFORD, P.J., W.S., and ARNOLD B. GOLDIN, J., joined.

Michael Harrell, Memphis, Tennessee, for the appellant, Cheryl Dortch.

Eugene J. Podesta, Jr., Memphis, Tennessee, for the appellee, Methodist Healthcare
Memphis Hospitals.

James T. McColgan, III and Barret Lemuel Frederick, Cordova, Tennessee, for the
appellee, Medical Anesthesia Group.
John Ryland, Memphis, Tennessee, for the apellees, Amara F. Elochukwu and Ahmad H.
Altabbaa.

                                            OPINION

                             I. FACTS & PROCEDURAL HISTORY

       Latavius Dortch presented to Methodist North Hospital on March 28, 2014, with
complaints of swollen legs from his knees to his feet. A CT scan showed that his heart
was beating at only thirteen percent (13%), and he was admitted to the hospital that day.
On April 3, 2014, Latavius Dortch went into surgery to have a defibrillator installed.
Appellant Cheryl Dortch, Latavius Dortch’s mother, alleges that following the procedure,
she was told by a doctor that her son was brain dead due to a lack of oxygen during
surgery. Latavius Dortch died on July 11, 2015.

       On April 6, 2015, Ms. Dortch, through counsel, attempted to serve Appellees with
pre-suit notice of a health care liability claim pursuant to Tennessee Code Annotated
section 29-26-121 for the alleged “negligent medical treatment Mr. Dortch received by
health care provider(s)” at Methodist North Hospital (“First Notice Letter”). Included
with the First Notice Letter was a one page document entitled “Authorization to Release
Medical Records,” which was executed by Ms. Dortch. Although Ms. Dortch apparently
intended this document to serve as a HIPAA compliant medical authorization as required
by Tennessee Code Annotated section 29-26-121(a)(2)(E), the authorization only
permitted the recipient entity to send the medical records of Latavius Dortch to Plaintiff’s
counsel. On July 1, 2015, Ms. Dortch, as the purported conservator of Latavius Dortch,
filed a complaint for medical malpractice against Appellees, alleging that the negligent
medical care and injury to Latavius Dortch began on April 3, 2014 (“First Complaint”).

       After being served with the First Complaint, Appellees filed motions to dismiss
Ms. Dortch’s complaint pursuant to Rule 12.02(6) of the Tennessee Rules of Civil
Procedure based on Ms. Dortch’s failure to comply with Tennessee Code Annotated
section 29-26-121.       Among other things, Appellees asserted that the medical
authorization attached to the First Notice Letter did not comply with the pre-suit notice
requirements for health care liability claims found in Tennessee Code Annotated 29-26-
121(a)(2)(E).1 Appellees contended that the HIPAA authorizations were defective
because they only authorized the release of Latavius Dortch’s medical records to
Plaintiff’s counsel rather than to each other provider being sent the First Notice Letter as
required by section 121(a)(2)(E). However, on September 11, 2015, before the scheduled
1
 Additionally, Doctors Altabbaa and Elochukwu asserted that Ms. Dortch sent the First Notice Letter to
the wrong addresses, and they therefore never received any pre-suit notice whatsoever.

                                                  2
hearing on Appellees’ motions to dismiss, Ms. Dortch filed a notice of voluntary nonsuit
of the First Complaint. The trial court entered an order dismissing the First Complaint on
September 17, 2015.

       On July 6, 2016, Ms. Dortch sent a second letter to Appellees purporting to give
pre-suit notice of a health care liability claim pursuant to Tennessee Code Annotated
section 29-26-121 for the same alleged negligent medical treatment of Latavius Dortch
on April 3, 2014, that was the subject of the First Complaint (“Second Notice Letter”).
Ms. Dortch then re-filed her lawsuit on September 16, 2016 (“Second Complaint”).
Appellees once again filed motions to dismiss pursuant to Rule 12.02(6). Appellees
asserted that because Ms. Dortch’s First Notice Letter, particularly her HIPAA
authorization, did not substantially comply with the requirements of section 121(a)(2)(E),
she was never entitled to use the 120 day extension of the statute of limitations set forth
in Tennessee Code Annotated section 29-26-121(c). This, Appellees argued, made Ms.
Dortch’s First Complaint untimely, and she could not now rely on the savings statute to
revive her time-barred lawsuit. Ms. Dortch objected, contending that the trial court
should not consider whether the First Complaint was timely filed because she had
properly filed a notice of voluntary dismissal pursuant to Rule 41.01 of the Tennessee
Rules of Civil Procedure before the trial court ever ruled on her compliance with the pre-
suit notice requirements. Therefore, according to Ms. Dortch, she was now free to pursue
her claims in the Second Complaint pursuant to Tennessee Code Annotated section 28-1-
105, which allows a plaintiff to re-file a claim that was previously nonsuited within one
year of the voluntary dismissal. Oral argument on Appellees’ motions to dismiss was
held on March 31, 2017.2 At the conclusion of the hearing, the trial court granted
Appellees’ motions to dismiss, and the court entered an order dismissing Ms. Dortch’s
claims with prejudice on April 21, 2017.

                                 II.     ISSUE PRESENTED

      Appellant and Appellees present the same general issue for review on appeal,
which we have restated as follows:

       Whether the trial court erred in dismissing Appellant’s lawsuit with
       prejudice as time-barred by the applicable statute of limitations?

                               III.    STANDARD OF REVIEW

      A motion to dismiss for failure to state a claim, pursuant to Rule 12.02(6) of the
Tennessee Rules of Civil Procedure, challenges the legal sufficiency of a complaint and

2
 Memphis Radiological, P.C. was previously dismissed by order of voluntary dismissal entered on
February 15, 2017.
                                              3
is determined by an examination of the pleadings alone. See Webb. v. Nashville Area
Habitat for Humanity, Inc., 346 S.W.3d 422, 426 (Tenn. 2011). A defendant who files
such a motion admits the truth of the relevant and material allegations in the complaint
but asserts that those allegations fail to establish a cause of action. Id. “In considering a
motion to dismiss, courts ‘must construe the complaint liberally, 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)). On appeal, we
review the trial court’s legal conclusions regarding the adequacy of the complaint de
novo with no presumption of correctness. See Cullum v. McCool, 432 S.W.3d 829, 832
(Tenn. 2013).

       The Tennessee Supreme Court has articulated the following additional guidance
applicable to a motion to dismiss a health care liability action due to a plaintiff’s failure
to comply with Tennessee Code Annotated section 29-26-121:

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

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

                                     IV.    DISCUSSION

        This case involves the interplay of multiple sections of the Tennessee Code.
However, the actual question to be answered is fairly straightforward – whether a
plaintiff can circumvent the statute of limitations by nonsuiting an untimely complaint
and then re-filing the same case within the one year provided by the savings statute.
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        Our analysis begins with whether Ms. Dortch’s First Complaint was actually
barred by the one year statute of limitations for health care liability actions set forth in
Tennessee Code Annotated section 29-26-116. It is undisputed that Ms. Dortch’s cause
of action accrued on April 3, 2014, the day of Latavius Dortch’s surgery. Therefore, the
First Complaint, which was filed on July 1, 2015, falls outside of the one year statute of
limitations. Nevertheless, a plaintiff in a health care liability action is granted a 120 day
extension of the statute of limitations by complying with pre-suit notice provisions
provided in Tennessee Code Annotated section 29-26-121. See Tenn. Code Ann. § 29-
26-121(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.”). Because Ms. Dortch’s First Complaint was filed outside
of the one year statute of limitations, she would have to give proper pre-suit notice and
gain the advantage of the 120 day extension of the statute of limitations in order for the
First Complaint to be timely filed.

       We must, therefore, look to see whether Ms. Dortch gave proper pre-suit notice to
extend the statute of limitations. The following requirements apply to pre-suit notice of
health care liability claims:

       (a)(1) Any person, or that person’s authorized agent, asserting a potential
       claim for health care liability 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 health care liability 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.
                                              5
Tenn. Code Ann. § 29-26-121(a)(1)-(2) (emphasis added). Although Ms. Dortch has
never admitted that the First Notice Letter failed to include a proper HIPAA compliant
medical authorization, there appears to be no dispute that the medical authorization was
deficient. The “medical authorization” sent with Ms. Dortch’s First Notice letter only
permitted the recipient providers to send medical records to Plaintiff’s counsel, not to
each other provider being sent notice as required by section 121(a)(2)(E). This error has
been determined on multiple occasions to be a failure to substantially comply with the
pre-suit notice requirements in section 121. See, e.g., Stevens ex. rel Stevens v. Hickman
Cmty. Health Care Servs., Inc., 418 S.W.3d 547 (Tenn. 2013) (holding that “Plaintiff’s
medical authorization failed to satisfy the express requirement of Tenn. Code Ann. § 29-
26-121(a)(2)(E) that a plaintiff’s medical authorization ‘permit[] the provider receiving
the notice to obtain medical records from each other provider being sent notice.’ . . . Due
to Plaintiff’s material noncompliance, Defendants were not authorized to receive any of
the Plaintiff’s records.”) (emphasis added). See also Roberts v. Prill, No. E2013-02202-
COA-R3-CV, 2014 WL 2921930 (Tenn. Ct. App. May 14, 2014); Harmon v. Shore, No.
M2014-01339-COA-R3-CV, 2015 WL 1881467 (Tenn. Ct. App. Apr. 23, 2015), perm.
app. denied (Tenn. Sept. 16, 2015). Therefore, because Ms. Dortch did not comply with
the provisions of section 121, she did not receive the 120 day extension, which made her
First Complaint time-barred when filed on July 1, 2015.

        In an apparent effort to correct this critical error, Ms. Dortch filed a notice of
voluntary dismissal of the First Complaint before Appellee’s motions to dismiss could be
heard. She then re-filed her complaint in reliance on the savings statute, which provides
as follows:

      If the action is commenced within the time limited by a rule or statute of
      limitation, but the judgment or decree is rendered against the plaintiff upon
      any ground not concluding the plaintiff’s right of action . . . the plaintiff . . .
      may . . . commence a new action within one (1) year after the reversal or
      arrest.

Tenn. Code Ann. § 28-1-105(a) (emphasis added).

       Ms. Dortch argues that the trial court erred in looking back to the First Complaint
to determine whether it was filed within the statute of limitations. According to Ms.
Dortch, her Second Complaint is an entirely new cause of action, and she should be
allowed to proceed without any consideration being given to whether her First Complaint
was timely filed. However, we addressed this issue in a similar case, Byrge v. Parkwest
Medical Center, and held:

      Plaintiff’s Second Complaint was filed within the one year of dismissal of
                                              6
       the first suit. The real issue, however, is whether Plaintiff’s First
       Complaint was filed within the statute of limitations. If Plaintiff did not
       file his suit within the statute of limitations, then Plaintiff would be
       unable to rely on Tenn. Code Ann. § 28-1-105 to save his cause of
       action. In order to determine if Plaintiff met the statute of limitations
       in the filing of his second suit, we must, and the Trial Court properly
       did, look to the timeliness of the Plaintiff’s First Complaint.

Byrge v. Parkwest Med. Ctr., 442 S.W.3d 245, 248 (Tenn. Ct. App. Jan. 30, 2014)
(emphasis added). Ms. Dortch attempts to distinguish this case from Byrge because,
unlike the plaintiff in Byrge, she never stipulated that she failed to comply with section
121 when she filed the First Complaint. However, as we have previously discussed
herein, it is clear that Ms. Dortch failed to provide a HIPAA compliant medical
authorization with her First Notice Letter. As in Byrge, the trial court in this case
properly looked to the timeliness of the First Complaint to determine whether the Second
Complaint was time-barred.

       Finally, Ms. Dortch contends that Appellees waived any statute of limitations
defenses to the Second Complaint by not objecting to her voluntary dismissal of the First
Complaint. We disagree. Rule 41.01 of the Tennessee Rules of Civil Procedure, allowed
Ms. Dortch the right to take a voluntary nonsuit without prejudice without seeking leave
of the court or the consent of any other party. This rule is subject to some exceptions in
which a party’s ability to voluntarily nonsuit their case is within the discretion of the trial
court, but in the case at bar, Ms. Dortch did not need the consent of the trial court or
opposing parties in order to voluntarily dismiss her action. In short, there was no reason
for Appellees to object to Ms. Dortch voluntarily dismissing a case that was clearly filed
outside of the statute of limitations. The “right to voluntary dismissal without prejudice
does not override any applicable statute of limitations. Whether a refiled action is barred
by the statute of limitations is determined by the applicable statutes of limitations and
savings statute, if any, and not by Rule 41.01.” Robert Banks, Jr. & June F. Entman,
Tennessee Civil Procedure § 9-2(b) (4th ed. 2015) (citing Payne v. Matthews, 633
S.W.2d 494 (Tenn. Ct. App. 1992)). We affirm the trial court’s determination that Ms.
Dortch’s Second Complaint was barred by the statute of limitations.

                                     IV. CONCLUSION

       For the foregoing reasons, we affirm the judgment of the trial court dismissing
Appellant’s claims. Costs of this appeal are taxed to the appellant, Cheryl Dortch, and
her surety, for which execution may issue if necessary.



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    _________________________________
    BRANDON O. GIBSON, JUDGE




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