Darla Bullock, as next of kin and sole surviving heir of Linda H. Lobertini v. University Health Systems, Inc.

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
October 3, 2012 Session

DARLA BULLOCK, as next of kin and sole surviving heir of Linda H.
Lobertini v. UNIVERSITY HEALTH SYSTEMS, INC.

Appeal from the Circuit Court for Knox County
No. 353411 Hon. Wheeler A. Rosenbalm, Judge

No. E2012-00074-COA-R3-CV-FILED-NOVEMBER 27, 2012

This is an appeal in a medical malpractice case. The original plaintiff, the decedent, filed the
initial malpractice action against the defendant, but the case was dismissed after the decedent
passed away during the pendency of the suit. Her sole surviving heir re-filed the action
without complying with Tennessee Code Annotated sections 29-26-121 and 122, which
require a plaintiff who files a medical malpractice suit (1) to give a health care provider who
is to be named in the suit notice of the claim sixty days before filing the suit, and (2) 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 defendant filed a motion to dismiss, and the
trial court dismissed the case. The plaintiff appeals. We affirm.

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

J OHN W. M CC LARTY, J., delivered the opinion of the Court, in which C HARLES D. S USANO,
J R., and D. M ICHAEL S WINEY, JJ., joined.

Michael G. Hatmaker, Jacksboro, Tennessee, for the appellant, Darla Bullock, as next of kin
and sole surviving heir of Linda H. Lobertini.

Stephen C. Daves, Knoxville, Tennessee, for the appellee, University Health System, Inc.

OPINION

I. BACKGROUND

Linda H. Lobertini (“the Decedent”) was admitted to the University of Tennessee
Medical Center on July 2, 2007. Five days later, while certain nursing personnel were
preparing her for a CT scan, the Decedent incurred lower extremity lesions, including a left
calf laceration. According to the complaint, the Decedent experienced pain, bleeding, and
fluid drainage from the wound. She brought an action for medical malpractice against
University Health System, Inc. (“UHS”), but passed away during the pendency of the suit.
The Decedent’s counsel took a voluntary nonsuit on October 13, 2010, without prejudice.

Darla Bullock, the plaintiff in the instant action, re-filed the malpractice suit on
October 13, 2011. She asserts that she is next of kin and sole surviving heir of the Decedent,
who was her mother. A month later, UHS filed a motion to dismiss the complaint, alleging
that the suit filed in 2011 was subject to the requirements of Tennessee Code Annotated
sections 29-26-121 and 29-26-122, and that Bullock failed to meet these requirements. UHS
also alleged that Bullock lacked the capacity to bring the suit, as she brought the action as
next of kin -- not as personal representative.

In her response to the motion, Bullock admitted that she did not comply with the
referenced statutory provisions. She contended, however, that nothing was filed to dismiss
the previous action prior to October 13, 2010, and that UHS had ample time to investigate
the claims prior to October 13, 2010. She asserted that requiring her to give notice of the
re-filing would be “ludicrous.” Bullock took the position that she is “the next of kin and sole
surviving heir” of the Decedent, whose estate was not offered for probate, and any such
action passed to her by operation of law.

After hearing the arguments of counsel on the motion, the trial court dismissed the
action “with full prejudice based on all grounds set forth” by UHS. Bullock filed this appeal
in a timely fashion.

II. ISSUE

The issue raised by Bullock is whether the trial court committed reversible error in
granting UHS’s motion to dismiss.

III. STANDARD OF REVIEW

A motion pursuant to Rule 12.02(6) of the Tennessee Rules of Civil Procedure
challenges only the legal sufficiency of the complaint itself, and not the strength of the
plaintiff’s proof. Trau-Med of Am., Inc. v. Allstate Ins. Co., 71 S.W.3d 691, 696 (Tenn.
2002). We review the trial court’s award of a Rule 12.02(6) motion to dismiss de novo, with

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no presumption of correctness. Id. at 697. In determining whether the trial court erred in
granting the motion to dismiss, we “must construe the complaint liberally, presuming all
factual allegations to be true and giving the plaintiff the benefit of all reasonable inferences.”
Id. The complaint “should not be dismissed for failure to state a claim unless it appears that
the plaintiff can prove no set of facts in support of [the] claim that would warrant relief.” Id.

IV. DISCUSSION

Medical malpractice claims are controlled by statute. In order to prevail in such an
action, the plaintiff must prove: (1) the recognized standard of professional care; (2) that the
defendant failed to act in accordance with the applicable standard of care; and (3) that as a
proximate result of the defendant’s negligent act or omission, the plaintiff suffered an injury
which otherwise would not have occurred. Tenn. Code Ann. § 29-26-115.

As to notice before the suit, Tennessee Code Annotated section 29-26-121 provides
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.

***

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 (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.

(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).

In regard to expert testimony, Tennessee Code Annotated section 29-26-122 provides
as follows:

(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 upon 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)

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 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 upon 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
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 the 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.

***

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 (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). Bullock failed to comply with either
requirement.

In Myers v. AMISUB (SFH), Inc., ___ S.W.3d ___, No. W2010-00837-SC-R11-CV,
2012 WL 4712152 (Tenn. Oct. 4, 2012), a case similarly involving a re-filed complaint, the
Tennessee Supreme Court ruled 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. Accordingly, Bullock’s re-filed
action commenced pursuant to the saving statute1 was a new action governed by the statutory
provisions in Tennessee Code Annotated sections 29-26-121 and 122. The trial court in the
instant action properly dismissed Bullock’s suit for failing to comply with the statutes and
not demonstrating extraordinary cause for neglecting to do so.

As our ruling regarding the notice and certification matters is dispositive of this
appeal, we pretermit consideration of all other issues.

V. CONCLUSION

We affirm the decision of the trial court. The case is remanded for such further
proceedings as may be necessary. Costs of this appeal are assessed to the appellant, Darla
Bullock, as next of kin and sole surviving heir of Linda H. Lobertini.

_________________________________
JOHN W. McCLARTY, JUDGE

1
See Tennessee Code Annotated section 28-1-105(a) (providing that a party may re-file its suit within
one year of dismissal or reversal of the initial suit that was rendered on any ground not concluding the
action).

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