Curtis Myers v. Amisub (SFH), Inc., d/b/a St. Francis Hospital

IN THE SUPREME COURT OF TENNESSEE
AT JACKSON
April 4, 2012 Session

CURTIS MYERS v. AMISUB (SFH), INC., d/b/a ST. FRANCIS HOSPITAL,
ET AL.

Appeal by Permission from the Court of Appeals, Western Section
Circuit Court for Shelby County
No. CT-004650-09 Jerry Stokes, Judge

No. W2010-00837-SC-R11-CV - Filed October 4, 2012

The plaintiff filed a medical malpractice action against several health care providers and
subsequently dismissed the lawsuit. He re-filed the action after the legislature enacted
Tennessee Code Annotated section 29-26-121, which requires a plaintiff who files a medical
malpractice suit to give health care providers who are to be named in the suit notice of the
claim sixty days before filing the suit; and Tennessee Code Annotated section 29-26-122,
which requires a plaintiff to file with the medical malpractice complaint a certificate of good
faith confirming that the plaintiff has consulted with an expert who has provided a signed
written statement that there is a good-faith basis to maintain the action. The defendants
moved to dismiss the complaint based on the plaintiff’s failure to comply with Tennessee
Code Annotated sections 29-26-121 and 122. The trial court denied the motion, finding that
the plaintiff’s original suit constituted substantial compliance with the statutes’ requirements
and that extraordinary cause existed to excuse compliance with the requirements of
Tennessee Code Annotated section 29-26-121. Upon interlocutory appeal, the Court of
Appeals reversed. We hold 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. The plaintiff’s failure to comply with Tennessee
Code Annotated section 29-26-122 by filing a certificate of good faith with his complaint
requires a dismissal with prejudice.

Tenn. R. App. P. Rule 11 Appeal by Permission; Judgment of the Circuit Court
Reversed; Cause Dismissed

S HARON G. L EE, J., delivered the opinion of the Court, in which, G ARY R. W ADE, C.J.,
J ANICE M. H OLDER, C ORNELIA A. C LARK, and W ILLIAM C. K OCH, J R., JJ., joined.

Bill M. Wade, Memphis, Tennessee, for the appellant, Curtis Myers.
Joseph M. Clark and Edd Peyton, Memphis, Tennessee, for the appellees, Arsalan Shirwany,
M.D., and East Memphis Chest Pain Physicians, PLLC; Marty R. Phillips and Michelle
Greenway Sellers, Memphis, Tennessee, for the appellee, Tennessee EM-I Medical Services,
P.C.; W. Timothy Hayes, Jr., and Kimberly Cross Shields, Memphis, Tennessee, for the
appellee, AMISUB (SFH), Inc., d/b/a St. Francis Hospital.

OPINION

Curtis Myers suffered a stroke in July of 2006 and was treated by various health care
providers. On January 5, 2007, Mr. Myers filed a complaint in the Circuit Court for Shelby
County, alleging medical malpractice against the following health care providers who had
treated Mr. Myers: AMISUB (SFH), Inc., d/b/a St. Francis Hospital; Sheila B. Thomas, D.O.;
Arsalan Shirwany, M.D.; UT Medical Group, Inc.; Larry K. Roberts, M.D.; and Memphis
Physicians Radiological Group, P.C. By subsequent amendment of April 20, 2007, he added
as defendants Tennessee EM-I Medical Services, P.C., and East Memphis Pain Physicians,
PLLC.1

Mr. Myers’s original complaint was still pending when, on May 15, 2008, the
legislature enacted Tennessee Code Annotated sections 29-26-121 and 122,2 which set forth
new requirements relative to medical malpractice actions in this state. Both sections took
effect on October 1, 2008. On October 21, 2008, Mr. Myers voluntarily dismissed his
claim. Thereafter, on June 11, 2009, the legislature enacted amendments to Tennessee Code
Annotated sections 29-26-121 and 122, effective July 1, 2009, as to all actions filed on or
after that date.3 Mr. Myers re-filed his cause of action on September 30, 2009.4 The

1
Mr. Myers’s wife, Lisa Myers, also filed suit and joined in the amended complaint, but in August
2008, she voluntarily dismissed her claim pursuant to Tennessee Rule of Procedure 41.01. She did not re-file
her claim and is not a party to this appeal.
2
Act of April 24, 2008, ch. 919, 2008 Tenn. Pub. Acts 434 (relative to health care liability).
3
Act of June 4, 2009, ch. 425, 2009 Tenn. Pub. Acts 472 (relative to health care liability).
4
Mr. Myers re-filed his suit pursuant to the saving statute, Tennessee Code Annotated section 28-1-
105 (2000), which provides in pertinent part as follows:

(a) 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, or the plaintiff’s representatives and
(continued...)

-2-
statutory changes reflected in Tennessee Code Annotated sections 29-26-121 and 122, as
amended, were in effect when Mr. Myers re-filed his malpractice suit.

Tennessee Code Annotated section 29-26-121 requires sixty days pre-suit notice in
all medical malpractice cases, providing in pertinent part as follows:

(a)(1) Any person . . . asserting a potential claim for medical
malpractice 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
medical malpractice 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.
....

(b) If a complaint is filed in any court alleging a claim for
medical malpractice, 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.

4
(...continued)
privies, as the case may be, may, from time to time, commence a new action
within one (1) year after the reversal or arrest.

-3-
 (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.

Tenn. Code Ann. § 29-26-121 (Supp. 2011).

Tennessee Code Annotated section 29-26-122 requires the filing of a certificate of
good faith in all medical malpractice cases requiring expert testimony, confirming that an
expert has signed a written statement that there is a good faith basis to maintain the action:

(a) In any medical malpractice 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. The
certificate of good faith shall state that:
(1) The plaintiff or plaintiff’s counsel has consulted with one
(1) or more experts who have provided a signed written
statement confirming that upon information and belief they:
(A) Are competent under § 29-26-115 to express an
opinion or opinions in the case; and
(B) Believe, based on the information available from the
medical records concerning the care and treatment of the
plaintiff for the incident or incidents at issue, that there is a good
faith basis to maintain the action consistent with the
requirements of § 29-26-115; or
(2) The plaintiff or plaintiff’s counsel has consulted with one
(1) or more experts who have provided a signed written
statement confirming that upon information and belief they:
(A) Are competent under § 29-26-115 to express an
opinion or opinions in the case; and
(B) Believe, based on the information available from the
medical records reviewed concerning the care and treatment of
the plaintiff for the incident or incidents at issue and, as
appropriate, information from the plaintiff or others with

-4-
 knowledge of the incident or incidents at issue, that there are
facts material to the resolution of the case that cannot be
reasonably ascertained from the medical records or information
reasonably available to the plaintiff or plaintiff’s counsel; and
that, despite the absence of this information, there is a good faith
basis for maintaining the action as to each defendant consistent
with the requirements of § 29-26-115. Refusal of the defendant
to release the medical records in a timely fashion or where it is
impossible for the plaintiff to obtain the medical records shall
waive the requirement that the expert review the medical record
prior to expert certification.
....

(c) The 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. . . . If the allegations are
stricken, no defendant, except for a defendant who complied
with this section, can assert, and neither shall the judge nor jury
consider, the fault, if any, of those identified by the
allegations. The court may, upon motion, grant an extension
within which to file a certificate of good faith if the court
determines that a health care provider who has medical records
relevant to the issues in the case has failed to timely produce
medical records upon timely request, or for other good cause
shown.
....

(4) A certificate of good faith shall disclose the number of
prior violations of this section by the executing party.

Tenn. Code Ann. § 29-26-122 (Supp. 2011).

When Mr. Myers re-filed his complaint on September 30, 2009, he did not give pre-
suit notice to the defendants as required by Tennessee Code Annotated section 29-26-121,
nor did he file a certificate of good faith with the complaint as required by Tennessee Code
Annotated section 29-26-122. The defendants filed a Tennessee Rule of Civil Procedure
12.02(6)5 motion to dismiss for failure to state a claim upon which relief can be granted

5
Tennessee Rule of Civil Procedure 12.02 provides in pertinent part that
(continued...)

-5-
based on Mr. Myers’s failure to comply with the statutes. In response, Mr. Myers asserted
that Tennessee Code Annotated section 29-26-121 was satisfied 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. The trial court denied the motion to
dismiss, finding that Mr. Myers had substantially complied with the requirements of both
statutes “because all Defendants had notice of both the potential claims against them and the
existence of [Mr. Myers’s] medical expert through the original filing of [Mr. Myers’s]
Complaint on January 5, 2007 and the subsequent litigation from that date until the filing of
[Mr. Myers’s] voluntary nonsuit on October 21, 2008 . . . .” The trial court further found
that, “given the unique circumstances of this case,” there was extraordinary cause to excuse
strict compliance with Tennessee Code Annotated section 29-26-121, to the extent that strict
compliance was required under that section.

Thereafter, the trial court and the Court of Appeals granted motions for interlocutory
appeal filed by defendants AMISUB (SFH), Inc., d/b/a St. Francis Hospital; Arsalan
Shirwany, M.D.; Tennessee EM-I Medical Services, P.C.; and East Memphis Pain
Physicians, PLLC,6 (“Defendants”) pursuant to Rule 9 of the Tennessee Rules of Appellate
Procedure.7 The Court of Appeals reversed and remanded the case for dismissal, finding that
Tennessee Code Annotated sections 29-26-121 and 122 were applicable to Mr. Myers’s re-
filed suit and that he had failed to demonstrate extraordinary cause that would excuse
compliance. Myers v. AMISUB (SFH), Inc., No. W2010-00837-COA-R9-CV, 2011 WL
664753, at *9 (Tenn. Ct. App. Feb. 24, 2011). We granted Mr. Myers’s application for
permission to appeal to address the effect of his failure to comply with the pre-suit notice

5
(...continued)
[e]very defense, in law or fact, to a claim for relief in any pleading . . . shall
be asserted in the responsive pleading thereto if one is required, except that
the following defenses may at the option of the pleader be made by motion
in writing: . . . (6) failure to state a claim upon which relief can be granted
....
6
Although Sheila B. Thomas, D.O., was listed as a defendant in Mr. Myers’s re-filed complaint, the
record does not indicate that she joined the other named defendants in their interlocutory appeal, and she is
not a party to this appeal.
7
Rule 9(a) of the Tennessee Rules of Appellate Procedure provides in pertinent part that

[e]xcept as provided in rule 10, an appeal by permission may be taken from
an interlocutory order of a trial court from which an appeal lies to the
Supreme Court, Court of Appeals or Court of Criminal Appeals only upon
application and in the discretion of the trial and appellate court.

-6-
requirement of Tennessee Code Annotated section 29-26-121 and the certificate of good faith
requirement of Tennessee Code Annotated section 29-26-122.

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 Mr. Myers 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
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).

The trial court’s ruling was two-fold: that Mr. Myers substantially complied with the
requirements of Tennessee Code Annotated sections 29-26-121 and 122 based on the filing
of the previous suit and the information gained by the defendants in the ensuing litigation and

-7-
that there was extraordinary cause to excuse strict compliance with Tennessee Code
Annotated section 29-26-121.

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)). The construction of a statute is also a question of law which we review de novo
without any presumption of correctness. Lind, 356 S.W.3d at 895.

Tennessee Code Annotated section 29-26-121 expressly provides that “[a]ny person
. . . asserting a potential claim for medical malpractice 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 medical malpractice in any court of this
state.” Tenn. Code Ann. § 29-26-121(a)(1) (emphasis added). Tennessee Code Annotated
section 29-26-122 expressly provides that “[i]n any medical malpractice 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.” Tenn. Code Ann. § 29-26-122(a) (emphasis
added). The use of the word “shall” in both statutes indicates that the legislature intended
the requirements to be mandatory, not directory. Bellamy v. Cracker Barrel Old Country
Store, Inc., 302 S.W.3d 278, 281 (Tenn. 2009) (quoting Stubbs v. State, 393 S.W.2d 150, 154
(Tenn. 1965) (“‘When ‘shall’ is used . . . it is ordinarily construed as being mandatory and
not discretionary.’”)).

To determine whether the use of the word “shall” in a statute is mandatory or merely
directory, we look to see “whether the prescribed mode of action is of the essence of the
thing to be accomplished.” 3 Norman J. Singer & J.D. Singer, Statutes and Statutory
Construction § 57:2 (7th ed. 2008); see also Holdredge v. City of Cleveland, 402 S.W.2d
709, 713 (Tenn. 1966) (“[A] provision relating to the essence of the thing to be done, that is,
to matters of substance, is mandatory, and when a fair interpretation of a statute . . . shows
that the legislature intended a compliance with such provision to be essential to the validity

-8-
of the act . . ., the statute must be regarded as mandatory.”). The 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. The essence of Tennessee Code Annotated section 29-26-122 is
that a defendant receive assurance that there are good faith grounds for commencing such
action. The requirements of pre-suit notice of a potential claim under Tennessee Code
Annotated section 29-26-121 and the filing of a certificate of good faith under Tennessee
Code Annotated section 29-26-122 are fundamental to the validity of the respective statutes
and dictate that we construe such requirements as mandatory.8

Mr. Myers argues that he substantially complied with the statutes based on the filing
of his previous suit and the subsequent litigation. We disagree. When Mr. Myers dismissed
his first suit and filed his second complaint, he instituted a new and independent action,
bearing a separate docket number. See Old Hickory Eng’g & Mach. Co. v. Henry, 937
S.W.2d 782, 784-85 (Tenn. 1996) (holding that, in accordance with Rule 3 of the Tennessee
Rules of Civil Procedure, a “new action,” as contemplated by the saving statute, is
commenced when a complaint is filed); see also Frye v. Blue Ridge Neurosci. Ctr., P.C., 70
S.W.3d 710, 713 (Tenn. 2002) (finding second complaint to be a new action as evidenced
by its new docket number). Mr. Myers’s original cause of action ceased to exist when the
trial court granted his voluntary nonsuit on October 21, 2008. Oliver v. Hydro-Vac Servs.,
873 S.W.2d 694, 696 (Tenn. Ct. App. 1993) (“No present controversy exists after the
plaintiff takes a nonsuit. The lawsuit is concluded . . . .”) (citation omitted); 1 Lawrence A.
Pivnick, Tennessee Circuit Court Practice §23.1 (2011 ed.) (“When a voluntary nonsuit has
been taken, the action is terminated.”). Although the dismissal of the original complaint
demarcated the beginning of the one-year period during which Mr. Myers could commence
a new action under the savings statute, the original action did not survive, nor did the
dismissal in any way indicate whether Mr. Myers would assert a claim in the future. See
Oliver, 873 S.W.2d at 696 (“The plaintiff’s refiling the suit [after taking a nonsuit] is a
contingent event that may not occur.”).

By passing this statute, the legislature intended to give prospective defendants notice
of a forthcoming lawsuit. In Senate committee discussion of the bill9 that introduced
Tennessee Code Annotated sections 29-26-121 and 122, the bill’s co-sponsor, Senator Mark

8
Legislative discussion of the statutes prior to their enactment also indicates that the legislature
viewed the statutes as mandatory, demanding strict compliance. For example, in committee discussion of
the periods of time allowed for compliance with the statutes’ filing requirements, Senator Jim Kyle observed
“the whole bill is date driven . . . we don’t need the judiciary to interpret our desire there as to what the date
is.” Senator Mark Norris confirmed that “the dates mean what they say. Trigger dates are meant to be
deadlines.” S.B. 2001, 102nd Gen. Assemb., Mar. 27, 2007.
9
S.B. 2001, 102nd Gen. Assemb., Mar. 27, 2007.

-9-
Norris, stated that the new law was “designed to give people notice that there’s about to be
a claim and to put everyone who might be involved on notice that a suit will shortly be
filed.” Without the notice required by Tennessee Code Annotated section 29-26-121,
Defendants were not apprised that Mr. Myers continued to assert a claim against them and
that a suit would be filed and were therefore deprived of the notice required by Tennessee
Code Annotated section 29-26-121.10 With respect to Tennessee Code Annotated section 29-
26-122, after Mr. Myers’s original action terminated, he could not rely on statements made
by experts relative to that action as a substitute for a certificate of good faith filed with his
new action because the statute provides that “[i]f the certificate is not filed with the
complaint, the complaint shall be dismissed.” Tenn. Code Ann. § 29-26-122(a). The
statements upon which Mr. Myers seeks to rely were not filed with his new complaint.

As a new action, the September 30, 2009 complaint was subject to the law in effect
at the time of its filing, including the requirements of Tennessee Code Annotated sections
29-26-121 and 122. Sections 29-26-121 and 122 respectively mandate that pre-suit notice
be given and that a certificate of good faith be filed. Because these requirements are
mandatory, they are not subject to satisfaction by substantial compliance. Substantial
compliance is sufficient only when the statute’s requirements are directory, not
mandatory. Cf. Scheele v. Hartford Underwriters Ins. Co., 218 S.W.3d 636, 641 (Tenn.
2007) (“We find the thirty-day requirement . . . directory, not mandatory. . . . [S]ubstantial
compliance with the statute’s thirty-day notice requirement is legally sufficient.”); Perkins
v. Enter. Truck Lines, Inc., 896 S.W.2d 123, 126 (Tenn. 1995) (“[t]his Court held that the
procedural requirements were directory, not mandatory. Thus, substantial compliance was
sufficient.”). Because no pre-suit notice was given and no certificate of good faith was filed,
we need not decide whether the statutes’ requirements as to the content of the notice and the
certificate of good faith may be satisfied by substantial compliance.

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. See Gleaves v. Checker Cab Transit Corp., 15 S.W.3d
799, 803 (Tenn. 2000) (“[I]t is not for the courts to alter or amend a statute.”) 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

10
We acknowledge Howell v. Claiborne & Hughes Health Ctr., No. M2009-01683-COA-R3-CV,
2010 WL 2539651 (Tenn. Ct. App. June 24, 2010), perm. app. granted (2010), perm. app. dismisssed (2011),
cited by Mr. Myers. In Howell, the plaintiff filed a medical malpractice complaint, nonsuited it, and refiled
it without giving the required pre-suit notice. The trial court dismissed the case. The Court of Appeals
reversed the trial court holding that the plaintiff’s nonsuited complaint was sufficient to satisfy the notice
requirement of Tennessee Code Annotated section 29-26-121. Id. at *17. To the extent that Howell is
inconsistent with our decision herein, Howell is overruled.

-10-
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, 356
S.E.2d 802, 804 (N.C. Ct. App. 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.” 11 Mr. Myers
failed to give any reason for his failure to comply with the statutory requirements, much less
demonstrate extraordinary cause.

Tennessee Code Annotated section 29-26-122 provides that “[i]f the certificate [of
good faith] 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.” Mr. Myers does not contend that his failure to file the
certificate of good faith was due to the failure of a health care provider to provide copies of
his records, but rather argues that he should be excused from the requirements of both
sections because the information provided in his original suit served to substantially comply
with both sections. This reason is not contemplated by the statute.

We conclude that the trial court’s denial of Defendants’ motion to dismiss on its
finding of substantial compliance and extraordinary cause was error. We now address the
consequences of Mr. Myers’s failure to comply with the statutes.

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, 217 S.W. 826, 828 (Tenn. 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

11
John A. Day, Med Mal Makeover 2009 Act Improves on ’08; The New New Medical Malpractice
Notice and Certificate of Good Faith Statutes, Tenn. B.J. July 2009, at 17.

-11-
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). Although the statutory scheme provides the trial court with discretion to, “upon
motion, grant an extension within which to file a certificate of good faith if the court
determines that a health care provider who has medical records relevant to the issues in the
case has failed to timely produce medical records upon timely request, or for other good
cause shown,” id., Mr. Myers did not file a motion seeking such relief. Consequently, his
complaint must be dismissed with prejudice.

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.

For the reasons stated, we affirm the holding of the Court of Appeals reversing the
judgment of the trial court, and the cause is dismissed. Costs of this appeal are assessed to
the appellant, Curtis Myers, and his surety, for which execution may issue if necessary.

_________________________________
SHARON G. LEE, JUSTICE

-12-