                   IN THE COURT OF APPEALS OF TENNESSEE
                              AT KNOXVILLE
                                       March 5, 2013 Session

  SAMUEL E. FOSTER ET AL. v. WALTER WILLIAM CHILES, III ET AL.

                       Appeal from the Circuit Court for Knox County
                         No. 1-227-12     Dale C. Workman, Judge


                   No. E2012-01780-COA-R3-CV-FILED-JUNE 27, 2013


This is a health care liability1 case. Samuel E. Foster and his wife, Mary Foster, timely filed
a complaint after properly sending pre-suit notices to the potential defendants as required by
Tenn. Code Ann. § 29-26-121(a) (2012). After nonsuiting their first lawsuit, they timely
filed a second complaint in which they alleged the same cause of action against the same
defendants. The second complaint alleged compliance with section 121(a), citing the notices
already properly sent before the first complaint was filed. The trial court dismissed the
second complaint with prejudice based upon the court’s determination that plaintiffs failed
to satisfy the notice requirement of section 121(a). We hold that plaintiffs complied with
section 121(a)’s notice requirement by giving a written notice of their potential health care
liability claim to each defendant at least 60 days prior to the filing of their second complaint.
We further hold that section 121 does not mandate dismissal with prejudice for
noncompliance with its terms, and that plaintiffs’ inadvertent failure to file – with the second
complaint – proof of their service of the subject notices does not warrant dismissal with
prejudice. We vacate the trial court’s order of dismissal and remand for further proceedings.

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

C HARLES D. S USANO, J R., P.J., delivered the opinion of the Court, in which J OHN W.
M CC LARTY and T HOMAS R. F RIERSON, II, JJ., joined.

John D. Agee and Bradley D. Williams, Clinton, Tennessee, for the appellants, Samuel E.
Foster and Mary Foster.


        1
          We refer to “health care liability” – formerly known as a medical malpractice – because the General
Assembly passed legislation, effective April 23, 2012, replacing the term “medical malpractice” with “health
care liability” in every place that the former label had appeared in the Code. See Act of April 23, 2012, ch.
798, 2012 Tenn. Pub. Acts. The complaint at issue here was filed May 4, 2012.
F. Michael Fitzpatrick and Rachel Park Hurt, Knoxville, Tennessee, for the appellees,
Covenant Health and Parkwest Medical Center.

Stephen C. Daves, Knoxville, Tennessee, for the appellees, Walter William Chiles, III, M.D.
and Knoxville Urology Clinic, P.C.

Edward G. White, II, and B. Chase Kibler, Knoxville, Tennessee, for the appellees, Gordon
Lee Collins, M.D. and Anesthesia Medical Alliance of East Tennessee, P.C.


                                          OPINION

                                               I.

       Plaintiffs filed their first lawsuit on March 17, 2011. They alleged that the acts or
omissions of the defendants, Dr. Walter William Chiles, III, Knoxville Urology Clinic, P.C.,
Dr. Gordon Lee Collins, Anesthesia Medical Alliance of East Tennessee, P.C., Covenant
Health, and Parkwest Medical Center, deviated from the applicable standards of medical care
causing them injury. At an earlier time – on November 18, 2010 – plaintiffs had mailed the
notice required by Tenn. Code Ann. § 29-26-121(a) to each of the defendants. Section
121(a) addresses its notice requirement as follows:

              (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;

                                               -2-
                   (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.

        On May 6, 2011, plaintiffs took a voluntary nonsuit of their initial lawsuit. On May
4, 2012, plaintiffs, relying on the saving statute,2 re-filed the same cause of action against the
same defendants. The parties seem to agree that plaintiffs’ first and second complaints are
essentially identical.3 The second complaint asserted that “[p]laintiffs have complied with
the notice requirements set forth in T.C.A. § 29-26-121(a), and copies of the required notices
and appurtenant documentation, as attested to by the [a]ffidavit of Brandy K. Brogdon, are
attached hereto.” (Underlining in original.) The notices and Ms. Brogdon’s affidavit,
however, were not, in fact, attached to the second complaint. Regarding Tenn. Code Ann.
§ 29-26-122(a)’s requirement that, in a health care liability action, “the plaintiff or plaintiff’s
counsel shall file a certificate of good faith with the complaint,” it is undisputed that
plaintiffs complied with this statute by filing a certificate of good faith with both the first and
second complaints.

       Defendants filed motions to dismiss based upon alleged noncompliance with section
121(a). The trial court granted the motion on July 20, 2012, stating in its order of dismissal:

                   Based upon the record in this cause and the arguments of all
                   counsel present, the Court finds that Defendants’ Motions are
                   well-taken and are granted. The Court concludes as a matter of
                   law that the language of Section 121, which is plain and
                   unambiguous, requires a plaintiff, when re-filing a medical


        2
            Tenn. Code Ann. § 28-1-105(a) (2000), provides, in pertinent part, 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, or where the
                   judgment or decree is rendered in favor of the plaintiff, and is arrested, or
                   reversed on appeal, the plaintiff, . . . may, from time to time, commence a
                   new action within one (1) year after the reversal or arrest.
        3
          A copy of the first complaint is not in the appellate record. Plaintiffs state in their brief that their
“original and re-filed complaints were essentially identical” and the defendants have not taken issue with this
statement.

                                                       -3-
              malpractice cause of action after a voluntary non-suit without
              prejudice and during the saving[] period established pursuant to
              the Saving[] Statute . . . to comply separately (i.e., by
              disregarding the plaintiff’s prior compliance with the notice
              requirement of Section 121 with respect to the filing of the
              plaintiff’s initial complaint) by re-sending notices in conformity
              with Section 121 to each health care provider who will be
              named as a defendant in the re-filed action at least sixty (60)
              days before re-filing the complaint. As a matter of law, this
              Court holds that, notwithstanding the notices duly given by the
              Plaintiffs under Section 121 in connection with the filing of
              their original complaint, the Plaintiffs failed to comply with the
              mandatory notice requirements set forth in Section 121 insofar
              as Plaintiffs re-filed their Complaint pursuant to the Saving[]
              Statute without first causing, during the saving[] period and at
              least sixty (60) days prior to such re-filing, new notices to be
              sent in conformity with Section 121 to each prospective
              Defendant, and the Plaintiffs failed to demonstrate extraordinary
              cause to excuse compliance with those mandatory notice
              requirements.

The trial court dismissed plaintiffs’ second complaint with prejudice. Plaintiffs timely filed
a notice of appeal.

                                               II.

       The overriding question in this case is simply this: did plaintiffs fail to comply with
section 121 prior to the filing of their second lawsuit? In addition to addressing this question,
we are also required to determine whether section 121 requires the sanction of dismissal with
prejudice for noncompliance. We answer both questions in the negative.

                                              III.

       Because the trial court’s grant of the defendants’ motions to dismiss involves a
question of law, our review is de novo with no presumption of correctness as to the trial
court’s legal conclusions. Myers v. AMISUB (SFH), Inc., 382 S.W.3d 300, 307 (Tenn.
2012). Similarly, “[t]he construction of a statute is also a question of law which we review
de novo without any presumption of correctness.” Id. at 308. There are no disputed material
issues of fact on this appeal.



                                               -4-
                                              IV.

                                              A.

       The issues presented require statutory construction. In Myers, the Supreme Court was
called upon to construe the notice requirement at issue here. It did so pursuant to the
following applicable and well-established principles of statutory construction:

              Our review requires us to determine the meaning of Tennessee
              Code Annotated sections 29-26-121 and 122. The leading rule
              governing our construction of any statute is to ascertain and give
              effect to the legislature’s intent.        Walker v. Sunrise
              Pontiac–GMC Truck, Inc., 249 S.W.3d 301, 309 (Tenn. 2008).
              To that end, we start with an examination of the statute’s
              language, Curtis v. G.E. Capital Modular Space, 155 S.W.3d
              877, 881 (Tenn. 2005), presuming that the legislature intended
              that each word be given full effect. Lanier v. Rains, 229
              S.W.3d 656, 661 (Tenn. 2007). 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.” State v.
              Flemming, 19 S.W.3d 195, 197 (Tenn. 2000); see also In re
              Adoption of A.M.H., 215 S.W.3d 793, 808 (Tenn. 2007)
              (“Where the statutory language is not ambiguous . . . the plain
              and ordinary meaning of the statute must be given effect.”)
              (citing Calaway ex rel. Calaway v. Schucker, 193 S.W.3d 509,
              516 (Tenn. 2005)).

Myers, 382 S.W.3d at 308.

        The High Court in Myers held that “the statutory requirements that a plaintiff give
sixty days pre-suit notice and file a certificate of good faith with the complaint are mandatory
requirements and not subject to substantial compliance.” Id. at 304. Defendants argue that
Myers requires affirmance of the trial court’s dismissal of plaintiffs’ second complaint.
Plaintiffs do not take issue with Myers, but argue that it is factually distinguishable. We
agree with plaintiffs.

      Myers involves a first lawsuit filed before section 121 was enacted, followed by a
“saving statute” re-filing of a second lawsuit after the notice and good faith certificate

                                              -5-
requirements of sections 121 and 122 had been enacted and were effective. Id. The plaintiff
in Myers never provided the defendants with pre-suit notice, but argued that he had
substantially complied with section 121 “because the defendants had notice of the re-filed
cause of action from the proceedings in the original suit and that the certificate of good faith
requirement of Tennessee Code Annotated section 29-26-122 was satisfied by expert
disclosures filed in the original suit.” Id. at 306. The Supreme Court disagreed and further
held that Mr. Myers had failed to demonstrate “extraordinary cause” excusing his
noncompliance with sections 121 and 122. Id. at 310-11.

        In the present case, plaintiffs do not argue that they substantially complied with the
statute, nor that they demonstrated extraordinary cause to excuse noncompliance; but, rather,
that they fully complied with the statute. Plaintiffs assert in their brief that “[b]ecause
Section 121 requires only that notice must be given ‘at least sixty (60) days before filing a
complaint,’ a notice, once duly served, arguably relates, on a reasonable interpretation of
Section 121, equally to an initial complaint and a subsequent complaint filed under the
[saving] statute.” In this case, it is not disputed that the notice mailed to defendants more
than sixty days before the filing of Plaintiffs’ first complaint complied with the statutory
requirements of Section 121.4 This significant fact distinguishes the present case from Myers
and other appellate decisions affirming the dismissal of a health care liability action for
noncompliance. See Bullock v. Univ. Health Sys., Inc., No. E2012-00074-COA-R3-CV,
2012 WL 5907495 at *1 (Tenn. Ct. App. E.S., filed Nov. 27, 2012); Childs v. UT Med. Grp.,
Inc., No. W2011-01901-COA-R3-CV, 2012 WL 3201933 at *9 (Tenn. Ct. App. W.S., filed
Aug. 8, 2012); Cude v. Herren, No. W2010-01425-COA-R3-CV, 2011 WL 4436128 at *1
(Tenn. Ct. App. W.S., filed Sept. 26, 2011); DePue v. Schroeder, No. E2010-00504-COA-
R9-CV, 2011 WL 538865 at *1 (Tenn. Ct. App. E.S., filed Feb. 15, 2011) (reversing trial
court’s decision not to dismiss and remanding for dismissal).

       We now examine the language of section 121 to determine if plaintiffs complied with
the notice requirement. As noted, section 121(a)(1) simply requires that “[a]ny person . . .
asserting a potential claim for health care liability shall give written notice of the potential


        4
          On appeal, defendants argue, for the first time, that the information contained in the notices was
technically deficient. For instance, defendants assert that the notices did not provide the “full name” of the
patient whose treatment is at issue or the name and address of the claimant authorizing the notice.
Defendants acknowledged receiving notice before plaintiffs’ initial complaint was filed, and did not argue
before the trial court that the notices were deficient, even in response to plaintiffs’ assertion in their response
to the motions to dismiss that “the Defendants are not, for the purposes of these Motions, contesting that the
Plaintiffs complied with the requirements of Section 121 in connection with the filing of their initial
[c]omplaint.” Issues raised for the first time on appeal are generally held to be waived. Fayne v. Vincent,
301 S.W.3d 162, 171 (Tenn. 2009); Black v. Blount, 938 S.W.2d 394, 403 (Tenn. 1996). We hold that
defendants have waived this issue.

                                                       -6-
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.” (Emphasis added.)
Plaintiffs, who are “persons asserting a potential claim for health care liability,” provided
“written notice of the[ir] potential claim” more than sixty days before May 4, 2012, the date
on which they filed their second complaint. The second complaint asserted the identical
cause of action alleged against the same defendants in the first complaint.

        Defendants argue that they “technically” did not receive notice of the plaintiffs’
potential claims because plaintiffs’ “original cause of action ceased to exist when the trial
court granted [their] voluntary nonsuit” and their second complaint “instituted a new and
independent action.” Myers, 382 S.W.3d at 309. Myers observed that a lawsuit is concluded
and terminated with a voluntary nonsuit, and that the re-filing under the saving statute starts
a “new” lawsuit. Id.; see also Childs, 2012 WL 3201933 at *6; Robles v. Vanderbilt Univ.
Med. Ctr., No. M2010-01771-COA-R3-CV, 2011 WL 1532069 at *3 (Tenn. Ct. App. M.S.,
filed Apr. 19, 2011); Barnett v. Elite Sports Med., M2010-00619-COA-R3-CV, 2010 WL
5289669, at *2 (Tenn. Ct. App. M.S., filed Dec. 17, 2010). Our holding today is not at odds
with the Supreme Court’s holding in Myers and the other cited cases. The Supreme Court
stated in Myers that “[t]he essence of Tennessee Code Annotated section 29-26-121 is that
a defendant be given notice of a medical malpractice claim before suit is filed.” 382 S.W.3d
at 309. Thus, the fact that Plaintiffs’ voluntary nonsuit ended the first lawsuit and their re-
filing under the saving statute started a new one begs the fundamental and dispositive
question: were the defendants given notice of this health care liability action before the
second complaint was filed? The answer is clearly “yes.” The clear and unambiguous
language of section 121, as parsed above, supports this conclusion. The plaintiffs here did
not attempt, in their second complaint, to assert different or additional causes of action, nor
did they add new defendants – ones that did not receive notice prior to the first complaint.
We again stress that the parties and the causes of action in the two complaints are identical.
We hold that, under the undisputed facts, plaintiffs complied with the notice requirement of
Tenn. Code Ann. § 29-26-121 by providing written notice to the potential defendants of the
plaintiffs’ potential claim for health care liability – as brought to fruition in the second
complaint – more than sixty days before they filed their second action.

     The trial court, while stating that the language of section 121 is clear and
unambiguous, reached the following additional conclusion about that section:

              The Court concludes as a matter of law that the language of
              Section 121, which is plain and unambiguous, requires a
              plaintiff, when re-filing a medical malpractice cause of action
              after a voluntary non-suit without prejudice and during the
              saving[] period established pursuant to the Saving[] Statute . . .

                                              -7-
                to comply separately (i.e., by disregarding the plaintiff’s prior
                compliance with the notice requirement of Section 121 with
                respect to the filing of the plaintiff’s initial complaint) by re-
                sending notices in conformity with Section 121 to each health
                care provider who will be named as a defendant in the re-filed
                action at least sixty (60) days before re-filing the complaint.

We have carefully read section 121(a)(1). With all due respect to the learned trial court, we
find nothing in the statutory language to support the trial court’s latter conclusion. The
language of that section simply does not say that – if you give the requisite notice, file a
lawsuit, and then take a non-suit – you must give the same defendants regarding the same
cause of action a new, timely section 121 notice before you file your saving statute lawsuit.
We again copy section 121 (a)(1) for comparison purposes:

                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.

The trial court would have us hold that a section 121 notice only applies to the first lawsuit
filed after the notice is given. This we cannot do for one very simple reason: this is not what
section 121 says.5 Looking only at the words used in this clear and unambiguous statute,
there is no support for the trial court’s conclusion.

                                                    B.

      Defendants argue that plaintiffs’ inadvertent failure to file proof of service with their
second complaint as required by section 121 is fatal to their cause of action and requires
dismissal with prejudice. Tenn. Code Ann. § 29-26-121 provides:

                (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,



        5
         We find it interesting that 121(a) uses the language “before the filing of a complaint” rather than
“before the filing of the complaint.” (Emphasis added.) The use of “a” rather than “the” bolsters our
conclusion that a single section 121 notice can support more than one complaint filing.

                                                    -8-
              as established by the specified proof of service, which shall be
              filed with the complaint:

                                           *   *     *

              (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.

(Emphasis added.)

        Plaintiffs’ second complaint alleged in paragraph 18 that they “ha[d] complied with
the notice requirements set forth in [section 121] and copies of the required notices and
appurtenant documentation, as attested to by the [a]ffidavit of Brandy K. Brogdon, are
attached hereto.” The affidavit and notices were not attached to the complaint, however. In
their response to defendants’ motions to dismiss, plaintiffs stated:

              Plaintiffs acknowledge that they are required to attach copies of
              the relevant notices and supporting documentation to their
              Complaint filed under the Savings Statute; the language in
              paragraph 18 of the Plaintiffs’ Complaint itself demonstrates
              that this was the Plaintiffs’ intention. However, this inadvertent
              failure to supply the notices together with the Complaint does
              not constitute a failure to comply with Section 121 that warrants
              dismissal. In this respect, the Plaintiffs respectfully submit that
              it is necessary to distinguish between the primary purpose of
              Section 121 in ensuring that notice is given in the manner
              specified in that section and the ancillary evidentiary purpose of
              filing such notices and their supporting documentation with the
              Complaint.

Plaintiffs attached copies of the notices sent to defendants and Ms. Brogdon’s affidavit to
their response to the motions to dismiss.




                                               -9-
       The Myers Court addressed the issue of the consequences of noncompliance with
sections 121 and 122 as follows:

              Tennessee Code Annotated sections 29-26-121 and 122 were
              both enacted as Public Chapter No. 919 of the Public Acts of
              2008 and were amended as Public Chapter 425 of the Public
              Acts of 2009; when statutes are enacted at the same legislative
              session, as occurred with regard to these two statutes, the rule of
              in pari materia “is of peculiar force. . . .” Hill v. Roberts, 142
              Tenn. 215, 217 S.W. 826, 828 (1920). The legislature
              expressly provided the consequence of a plaintiff’s failure to
              file the required certificate of good faith with the complaint
              in Tennessee Code Annotated section 29-26-122, stating that
              “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(a)
              (emphasis added). Subsection (c) of the statute provides that
              “[t]he failure of a plaintiff to file a certificate of good faith in
              compliance with this section shall, upon motion, make the action
              subject to dismissal with prejudice.” Id. at § 29-26-122(c)
              (emphasis added). . . .

              Regarding Tennessee Code Annotated section 29-26-121, the
              legislature did not expressly provide for the consequence of
              dismissal with prejudice as it did in Tennessee Code
              Annotated section 29-26-122. However, because we are
              dismissing Mr. Myers’s complaint with prejudice as the result
              of his failure to comply with Tennessee Code Annotated section
              29-26-122, we need not address the appropriate sanction for his
              failure to comply with section 29-26-121.

Myers, 382 S.W.3d at 311-12 (bold lettering added for emphasis to differentiate from
italicized emphasis in original.) Unlike the plaintiff in Myers, plaintiffs in this case complied
with section 122’s certificate of good faith requirement.

        Although Myers found it unnecessary to explicitly address the consequence of
noncompliance with section 121, the import of the Supreme Court’s analysis seems clear.
If the legislature intended to require the draconian remedy of dismissal with prejudice for

                                              -10-
noncompliance with section 121, then it would have said so, just as it did with respect to
section 122, which was enacted at the same time and which addresses the same general
subject matter. We conclude that section 121 does not require a court to dismiss a complaint
with prejudice for noncompliance with the notice requirement of that section. This
conclusion is in keeping with the general principle that “Tennessee law strongly favors the
resolution of all disputes on their merits.” Henley v. Cobb, 916 S.W.2d 915, 916 (Tenn.
1996); see also Hinkle v. Kindred Hosp., No. M2010-02499-COA-R3-CV, 2012 WL
3799215 at *7, *15 (Tenn. Ct. App. M.S., filed Aug. 31, 2012) (declining to “conclude that
any deviation from the strict letter of Tenn. Code Ann. § 29-26-121, no matter how small,
would compel the courts to dismiss any medical malpractice claim asserted, no matter how
meritorious” and observing that “[t]he hospital received actual notice. It seems to us that the
technical requirements in the statute are intended to provide just that: notice of the claim.”).
The language of section 121(b) providing that “[t]he court may require additional evidence
of compliance to determine if the provisions of this section have been met” also supports the
conclusion that automatic dismissal with prejudice is not required when a plaintiff neglects
to attach proof of service to his or her complaint. In such an instance, the statute
contemplates a hearing so the court may consider “additional evidence of compliance” rather
than outright dismissal. Under the circumstances presented here, where plaintiffs provided
sufficient notice under the statute and inadvertently failed to include – with the second
complaint – copies of the notice provided to the defendants, there is no reason why the court
should not allow plaintiffs to rectify their oversight by filing the required proof late.

       We are mindful of the fact that section 121(b) provides that “the pleadings . . . shall
provide the documentation specified in subdivision (a)(2).” (Emphasis added.) We are also
aware that the word “shall” in a statute often indicates a mandatory requirement, see Bellamy
v. Cracker Barrel Old Country Store, Inc., 302 S.W.3d 278, 281 (Tenn. 2009), but this
interpretation is not always required. The Supreme Court in Myers, noted that whether the
word “shall” is interpreted to be mandatory or simply directory depends upon “whether the
prescribed mode of action is of the essence of the thing to be accomplished.” Myers, 382
S.W.3d at 309. Here “the essence of the thing to be accomplished” is the giving of the
notice, not the attaching of evidence of same to the complaint. Under these circumstances,
we hold that the provision in section 121(b) under discussion, is directory and not mandatory.
Thus, the use of the word “shall” in section 121(b) is not inconsistent with our holding that
dismissal is not required by the statute for noncompliance.

                                              V.

       The judgment of the trial court is vacated. Costs on appeal are taxed to the appellees,
Walter William Chiles, III, M.D., Knoxville Urology Clinic, P.C., Gordon Lee Collins, M.D.,
Anesthesia Medical Alliance of East Tennessee, P.C., Covenant Health, and Parkwest

                                              -11-
Medical Center. This case is remanded to the trial court for further proceedings, consistent
with this opinion.




                                   __________________________________________
                                   CHARLES D. SUSANO, JR., PRESIDING JUDGE




                                            -12-
