                                                                                           10/08/2018
                IN THE COURT OF APPEALS OF TENNESSEE
                             AT JACKSON
                                  June 20, 2018 Session

   CHARLES REED v. WEST TENNESSEE HEALTHCARE, INC., ET AL.

          Interlocutory Appeal from the Circuit Court for Madison County
                         No. C-16-262   Kyle Atkins, Judge


                             No. W2018-00227-COA-R9-CV


We granted this Rule 9 interlocutory appeal in this healthcare liabilty action to consider
whether termination of representation by plaintiff’s prior legal counsel a few weeks
before the expiration of the statute of limitations in this healthcare liability action
constitutes sufficient extraordinary cause to excuse (1) plaintiff’s failure to wait at least
sixty days to file the complaint after providing pre-suit notice as required by Tenn. Code
Ann. § 29-26-121; and, (2) plaintiff’s failure to file a Certificate of Good Faith with the
complaint as required by Tenn. Code Ann. § 29-26-122. We find and hold that the Trial
Court did not err in finding and holding that termination of representation by plaintiff’s
prior legal counsel a few weeks before the expiration of the applicable statute of
limitations does constitute the type of extraordinary cause sufficient to excuse plaintiff’s
failure to comply with Tenn. Code Ann. §§ 29-26-121 and 29-26-122. We, therefore,
affirm the Trial Court’s orders denying the motions to dismiss.

 Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Circuit Court Affirmed
                                  Case Remanded

D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which ARNOLD B.
GOLDIN and KENNY W. ARMSTRONG, JJ., joined.

Patrick W. Rogers, Jackson, Tennessee, for the appellants, West Tennessee Healthcare,
Inc. and Jackson-Madison County General Hospital District.

Edgar Davison, Memphis, Tennessee, for the appellee, Charles Reed.
                                          OPINION

                                         Background

        On October 18, 2015, Charles Reed (“Plaintiff”) suffered a work-related injury to
his left hip and was transported to the Jackson Madison County General Hospital District
(“the Hospital”) emergency room. While in the Hospital being treated, Plaintiff allegedly
fell causing injury to his left knee and lumbar spine.

       On June 6, 2016, Plaintiff hired an attorney to file a health care liability action on
his behalf with regard to the alleged fall in the Hospital. A few weeks before the
expiration of the applicable statute of limitations and before suit was filed, Plaintiff’s
counsel terminated his representation.1

       Plaintiff sent a letter dated October 7, 2016 to the Hospital’s Interim Chief
Executive Officer asserting that he had suffered injury due to the negligence of the
Hospital’s employee and demanding compensation in the amount of $2,128,168.80 for
medical bills, lost income, and pain and suffering. On October 14, 2016, within the
statute of limitations, Plaintiff filed a pro se complaint against West Tennessee
Healthcare, Inc. and the Hospital (collectively “Defendants”). Plaintiff failed to attach a
Certificate of Good Faith to his complaint. After filing suit, Plaintiff hired his current
counsel.

       Defendants filed a motion to dismiss alleging that Plaintiff had failed to comply
with Tenn. Code Ann. § 29-26-122 by failing to file a Certificate of Good Faith with the
complaint. Plaintiff filed a response to the motion to dismiss accompanied by, among
other things, a Certificate of Good Faith. After a hearing, the Trial Court entered its
order on May 9, 2017 denying the motion to dismiss after finding and holding, inter alia:

               Specifically, Plaintiff has demonstrated to this Court that his prior
       legal counsel terminated the representation of Plaintiff only a few weeks
       before the statute of limitations expired. This Court finds that the
       termination of this legal employment shortly before the expiration of the
       statute of limitations provides extraordinary cause for Plaintiff’s failure to
       file a Certificate of Good Faith.

Defendants filed a motion for interlocutory appeal of the Trial Court’s order denying
their motion to dismiss.

1
  The record now before us on appeal is devoid of any evidence suggesting or showing that counsel
terminated the representation due to any fault of Plaintiff.
                                                      2
       Defendants filed a second motion to dismiss alleging that Plaintiff had failed to
comply with Tenn. Code Ann. § 29-26-121 by failing to give pre-suit notice sixty days
prior to filing the complaint, by failing to provide a HIPPA compliant medical
authorization along with pre-suit notice, by failing to file an affidavit of the party mailing
the notice, and by failing to state that Plaintiff had complied with Tenn. Code Ann. § 29-
26-121(a). After a hearing, the Trial Court entered its order on August 28, 2017 denying
the motion to dismiss after finding and holding, inter alia:

               Specifically, the Plaintiff has demonstrated to this Court that his
        prior legal counsel terminated the representation of Plaintiff only a few
        weeks before the statute of limitations expired. The Court finds that the
        Healthcare Liability Act did not contemplate a party, who had hired a
        lawyer to handle the technical aspects of an action, having to learn the
        Healthcare Liability Act in two (2) weeks and therefore, extraordinary
        cause has been shown. The Court finds that the termination of this legal
        employment shortly before the expiration of the statute of limitations
        provided extraordinary cause for Plaintiff’s failure to comply with Tenn.
        Code Ann. § 29-26-121[.]

       Defendants filed a second motion for interlocutory appeal. After a hearing on the
two motions for interlocutory appeal, the Trial Court entered its order on February 2,
2018 granting the motions. Defendants filed for an interlocutory appeal to this Court, and
by order entered February 27, 2018, this Court granted Defendants an interlocutory
appeal.

                                                Discussion

       We granted this interlocutory appeal to consider two issues2: 1) whether the
termination of representation by Plaintiff’s prior legal counsel a few weeks prior to the
expiration of the applicable statute of limitations constitutes sufficient extraordinary
cause to excuse Plaintiff’s failure to wait at least sixty days after service of a letter
purporting to be pre-suit notice before filing the complaint as required by Tenn. Code
Ann. § 29-26-121; and, 2) whether the termination of representation by Plaintiff’s prior
legal counsel a few weeks prior to the expiration of the applicable statute of limitations
constitutes sufficient extraordinary cause to excuse Plaintiff’s failure to file a Certificate
of Good Faith with the complaint as required by Tenn. Code Ann. § 29-26-122. Thus,


2
  In his brief on appeal, Plaintiff attempts to raise other issues. The Trial Court granted the motion to seek
an interlocutory appeal, and this Court granted an interlocutory appeal, to consider only the two issues as
stated.
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what we are considering is whether the Trial Court erred in finding and holding that
Plaintiff demonstrated extraordinary cause.

      Our Supreme Court has instructed:

              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. 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.

             Because the trial court’s denial of the Defendants’ motion involves a
      question of law, our review is de novo with no presumption of correctness.
      Graham v. Caples, 325 S.W.3d 578, 581 (Tenn. 2010). The question of
      whether [a plaintiff] has demonstrated extraordinary cause that would
      excuse compliance with the statutes is a mixed question of law and fact,
      and our review of that determination is de novo with a presumption of
      correctness applying only to the trial court’s findings of fact and not to the
      legal effect of those findings. Starr v. Hill, 353 S.W.3d 478, 481–82 (Tenn.
      2011). We review the trial court’s decision to excuse compliance under an
      abuse of discretion standard. “A court abuses its discretion when it applies
      an incorrect legal standard or its decision is illogical or unreasonable, is
      based on a clearly erroneous assessment of the evidence, or utilizes
      reasoning that results in an injustice to the complaining party.” Wilson v.
      State, 367 S.W.3d 229, 235 (Tenn. 2012) (citing Wright ex rel. Wright v.
      Wright, 337 S.W.3d 166, 176 (Tenn. 2011)). We examine the legal
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      sufficiency of the complaint and do not consider the strength of the
      plaintiff's evidence; thus, all factual allegations in the complaint are
      accepted as true and construed in flavor of the plaintiff. Lind v. Beaman
      Dodge, Inc., 356 S.W.3d 889, 894 (Tenn. 2011).

Myers v. AMISUB (SFH), Inc., 382 S.W.3d 300, 307-08 (Tenn. 2012).

      As pertinent to this appeal, Tenn. Code Ann. § 29-26-121 provides:

      (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.

                                           ***

      (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.

Tenn. Code Ann. § 29-26-121 (Supp. 2016).

      In pertinent part, Tenn. Code Ann. § 29-26-122 provides:

      (a) In any health care liability action in which expert testimony is required
      by § 29-26-115, the plaintiff or plaintiff’s counsel shall file a certificate of
      good faith with the complaint. If the certificate is not filed with the
      complaint, the complaint shall be dismissed, as provided in subsection (c),
      absent a showing that the failure was due to the failure of the provider to
      timely provide copies of the claimant’s records requested as provided in §
      29-26-121 or demonstrated extraordinary cause.

Tenn. Code Ann. § 29-26-122 (2012).

      In Meyers, our Supreme Court explained:

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       Both statutes provide that compliance may be excused under specifically
       described conditions. Tennessee Code Annotated section 29–26–121
       allows the trial court to exercise “discretion to excuse compliance . . . only
       for extraordinary cause shown.” Tenn. Code Ann. § 29–26–121(b). The
       statute does not define “extraordinary cause,” and the statute’s legislative
       history does not indicate that the legislature intended to assign a meaning to
       that phrase other than its plain and ordinary meaning. “Extraordinary” is
       commonly defined as “going far beyond the ordinary degree, measure,
       limit, etc.; very unusual; exceptional; remarkable.” Webster’s New World
       Dictionary of the American Language, 516 (1966); see also State v. Vikre,
       86 N.C. App. 196, 356 S.E.2d 802, 804 (1987) (adopting dictionary
       definition of extraordinary cause as “going beyond what is usual, regular,
       common, or customary . . . of, relating to, or having the nature of an
       occurrence or risk of a kind other than what ordinary experience or
       prudence would foresee”). One legal scholar, commenting on Tennessee
       Code Annotated sections 29–26–121 and 122, has noted that possible
       examples of “extraordinary cause” might include “illness of the plaintiff’s
       lawyer, a death in that lawyer’s immediate family, [or] illness or death of
       the plaintiff’s expert in the days before the filing became necessary.”

Myers, 382 S.W.3d at 310-11 (footnote omitted).

        The Trial Court found that Plaintiff had demonstrated extraordinary cause to
excuse his failure to comply with both of the statutory sections by showing that Plaintiff’s
prior legal counsel had terminated the representation a few weeks before the expiration of
the statute of limitations. Defendants argue in their brief on appeal that the termination of
representation, which led to Plaintiff filing his complaint pro se, is insufficient to
constitute extraordinary cause.

       In their brief on appeal, Defendants argue that being pro se does not constitute
extraordinary cause to excuse compliance with Tenn. Code Ann. §§ 29-26-121 and 29-
26-122. While we do not disagree with this statement, it is not the entire factual situation
here. Defendants cite to Kinsey v. Schwarz and Mathes v. Lane in support of this
argument. Kinsey v. Schwarz, No. M2016-02028-COA-R3-CV, 2017 WL 3575895, at *9
(Tenn. Ct. App. Aug. 18, 2017), appl. perm. appeal denied Dec. 6, 2017 (analogizing
case to Mathes v. Lane); Mathes v. Lane, No. E2013-01457-COA-R3-CV, 2014 WL
346676 (Tenn. Ct. App. Jan. 30, 2014), no appl. perm. appeal filed (upholding trial
court’s finding that being pro se and incarcerated was insufficient to constitute
extraordinary cause). Defendants also point out that that hiring an attorney just before
the running of the statute of limitations and claimed ignorance of the law both have been
                                             6
held to be insufficient to constitute extraordinary cause. See Cude v. Herren, No.
W2010-01425-COA-R3-CV, 2011 WL 4436128 (Tenn. Ct. App. Sept. 26, 2011)
(upholding trial court’s determination that no extraordinary cause was shown when
plaintiff hired her attorney only seven days prior to the running of the saving statute), no
appl. perm. appeal filed; J.A.C. v. Methodist Healthcare Memphis Hosps., 542 S.W.3d
502, 517 (Tenn. Ct. App. 2016) (holding that claimed ignorance of the law was
insufficient to constitute extraordinary cause). Again, neither of these is the factual
situation here. Thus, Defendants are asserting that the fact that Plaintiff was pro se, had
insufficient time to provide proper pre-suit notice after his prior attorney terminated
representation, and was ignorant of the law are all insufficient to constitute extraordinary
cause.

        We find the case now before us on appeal to be distinguishable from the cases
discussed above. This is not a situation wherein Plaintiff was proceeding pro se the entire
time and simply was ignorant of the law. The record now before us on appeal reveals, as
found by the Trial Court, that Plaintiff hired an attorney to handle his suit well before the
expiration of the statute of limitations. The record further reveals that Plaintiff’s prior
counsel then terminated the representation only a few weeks before the expiration of the
statute of limitations. This left Plaintiff, who until that time reasonably had expected to
be represented by and to rely on counsel, in the unenviable position of either attempting
to hire new counsel within a very tight timeframe, filing his suit pro se, or losing his
cause of action. Plaintiff chose to file pro se in an attempt to protect his cause of action.
He then was able to hire new counsel.

        We agree with the Trial Court’s assertion that the “Healthcare Liability Act did
not contemplate a party, who had hired a lawyer to handle the technical aspects of an
action, having to learn the Healthcare Liability Act in two (2) weeks . . . .” We find that
the situation in the case now before us is more akin to a situation wherein a lawyer dies
“in the days before the filing became necessary,” leaving a client suddenly unrepresented
just prior to the expiration of the statute of limitations. Myers, 382 S.W.3d at 311
(footnote omitted).

       We find no abuse of discretion by the Trial Court, and we agree with the Trial
Court’s determination that termination of representation by Plaintiff’s prior legal counsel
a few weeks prior to the expiration of the statute of limitations does constitute the type of
extraordinary cause contemplated by Tenn. Code Ann. §§ 29-26-121 and 29-26-122.
We, therefore, affirm the Trial Court’s denial of Defendants’ motions to dismiss.




                                             7
                                       Conclusion

       The judgment of the Trial Court is affirmed, and this cause is remanded to the
Trial Court for further proceedings consistent with this Opinion and for collection of the
costs below. The costs on appeal are assessed against the appellants, West Tennessee
Healthcare, Inc. and Jackson-Madison County General Hospital District, and their surety.



                                         ______________________________________
                                         D. MICHAEL SWINEY, CHIEF JUDGE




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