               IN THE COURT OF APPEALS OF TENNESSEE
                            AT JACKSON
                               October 25, 2016 Session

TIFFINNE WENDALYN GAIL RUNIONS, ET AL. v. JACKSON-MADISON
        COUNTY GENERAL HOSPITAL DISTRICT, ET AL.

             Direct Appeal from the Circuit Court for Madison County
                      No. C-14-46 Donald H. Allen, Judge


              No. W2016-00901-COA-R9-CV – Filed February 7, 2017



BRANDON O. GIBSON, J., concurring in part and dissenting in part.

       I concur in the majority opinion’s denial of West Tennessee Health Network and
West Tennessee Healthcare, Inc.’s Motion to Dismiss and/or for Summary Judgment.
Like the majority, I express no opinion whatsoever on whether dismissal of these two
parties might be appropriate under other theories.

       However, I must respectfully dissent from the majority opinion’s holding that pre-
suit notice was provided to the District and that amendment of Ms. Runions’ complaint
was proper. The majority opinion states: “we cannot ignore the unmistakable
acknowledgement from Ms. Zamata’s letter that Ms. Runions did, in fact, provide written
notice of a potential claim against the District.” Herein lies my disagreement with the
majority opinion.

       This Court considered a very similar factual scenario in Shockley v. Mental Health
Cooperative, Inc., 429 S.W.3d 582 (Tenn. Ct. App. 2013) (perm. app. denied). The
majority opinion provides a thorough summary of the Shockley decision. In Shockley, the
Cooperative filed a motion to dismiss the lawsuit against it. On appeal, Shockley
contended that pre-suit notice was proper even though the notice did not specify the full
correct legal name of the health care provider. As we said in Shockley:

      Appellant first contends that the statute’s enumerated requirements are met
      in this case. Specifically, Appellant argues that the pre-suit notice contained
      all of the information outlined at Tennessee Code Annotated Section 29-26-
      121(a)(2), but (as stated in Appellant’s brief) “[n]otably absent from Tenn.
      Code Ann. § 29-26-121(a)(2) is any requirement that the claimant specify
      the full correct legal name of the health care provider in the corpus of the
        notice.” Accordingly, Appellant contends that, “[i]f the legislature had
        intended for a claimant to ... specify the full correct legal name of the health
        care provider, then it would have said so. It did not.” Respectfully, we
        disagree. At Tennessee Code Annotated Section 29-26-121(a)(1), the
        Legislature specifies that the pre-suit notice shall be given “to each health
        care provider that will be named a defendant.” This language is clear and
        unambiguous and requires pre-suit notice be sent to the provider that will
        be named as a defendant. Here, it is undisputed that the Foundation was
        neither a health care provider, nor was the Foundation a proper defendant to
        this lawsuit. It is axiomatic that the proper party be given pre-suit notice
        under 29-26-121(a)(1). Sending the pre-suit notice to a party that is not
        going to be named as a defendant is of no effect under subsection
        121(a)(1).

Id. at 590 (emphasis added).

       The trial court in this case determined that the case at hand was factually
distinguishable from Shockley. In my view, the question before us is whether the letter
from Laura Zamata so factually distinguishes this case from Shockley so as to require a
different result. I do not believe it does. Ms. Runions argues that the letter from Laura
Zamata is evidence that she satisfied the pre-suit notice requirement of Section 29-26-121
by giving the District actual notice. The trial court also based its ruling on the letter sent
from Ms. Zamata, as does the majority.

       Because the letter is central to Ms. Runions’ claim that she gave adequate pre-suit
notice, as well as central to the majority’s holding, the body of the letter is set forth
below1:




1
 Ms. Zamata’s signature appears in the appellate record. Her signature has been intentionally omitted from this
letter due to this document’s availability online.

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        The majority opinion says “[i]t belies common sense to suggest that Ms. Zamata’s
letter does not show that the District was aware of a potential health care liability claim
against it.” The majority goes on to say: “[a]lthough we do not hold that the District was
required to treat these [notice] letters as signaling a potential health care liability claim
against the District, Ms. Zamata’s letter clearly evidences that the District did so. The
District did not sit back idly, leaving it in a position to later assert ignorance as to whether
it had received notice of a potential claim against it. Instead, it recognized that the pre-
suit notice letters were directed to it, despite what the letters themselves stated.”
(Emphasis added.) I simply cannot agree that Ms. Zamata’s letter recognizes that “pre-
suit notice letters were directed to” the District. Arguably, the letter might suggest a
recognition that pre-suit notice should have been directed to the District, but the fact
remains that it was not. “Pre-suit notice is mandatory, and section 29-26-121(a)(1)
demands strict compliance.” Arden v. Kozawa, 466 S.W.3d 758, 762-63 (Tenn. 2015).

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        I also question whether the majority opinion encourages recipients of pre-suit
notice to “sit back idly,” waiting for an opportunity to assert ignorance as to whether it
received notice of a claim. In this particular case, Ms. Runions was at least put on notice
on or about October 25, 2013, weeks before the expiration of the statute of limitations,
that the District existed. Why, then, is the burden not on Ms. Runions to provide pre-suit
notice to the District as contemplated by the Healthcare Liability Act?

        Section 29-26-121(a) requires that a person “asserting a potential claim for health
care liability shall give written notice of the potential claim to each health care provider
that will be named a defendant . . . .” If we are to carry out the Legislature’s intent
without broadening the scope of the statute, we must ask if Ms. Runions gave notice of
the potential claim to the District. Given the plain statutory language and the Shockley
court’s statement that “[s]ending the pre-suit notice to a party that is not going to be
named as a defendant is of no effect under subsection 121(a)(1)[,]” I do not believe Ms.
Runions gave proper notice. As this Court recognized in Shockley, I also recognize the
potentially “harsh result,” but we should be constrained by the plain language of the
Tennessee Health Care Liability Act. “The requirements of these statutes are precisely
stated. The statutes provide clear guidance and detailed instruction for meeting those
requirements, and it is not our prerogative to rewrite the statutes.” Myers v. AMISUB
(SFH), Inc., 382 S.W.3d 300, 310 (Tenn. 2012).

       As a result of my position that notice to the District was improper, I therefore
believe the amendment to Ms. Runions’ complaint was futile and should have been
denied by the trial court.



                                                 _________________________________
                                                 BRANDON O. GIBSON, JUDGE




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