IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
March 11, 2014 Session
CLAYTON ARDEN, SURVIVING SPOUSE OF DEBORAH ARDEN,
DECEASED v. KENYA I. KOZAWA, M.D. ET AL.
Appeal from the Circuit Court for Monroe County
No. V12284S J. Michael Sharp, Judge
No. E2013-01598-COA-R3-CV - Filed June 18, 2014
The plaintiff, as surviving spouse, appeals the trial court’s dismissal of his health care
liability action against the defendant doctor who treated the plaintiff’s wife prior to her death
and the hospital wherein the treatment occurred. The trial court granted the defendants’
motions for summary judgment based upon the plaintiff’s failure to strictly comply with the
pre-suit notice requirements of Tennessee Code Annotated § 29-26-121 (Supp. 2013). We
reverse the trial court’s ruling that the plaintiff had to strictly comply with the provisions of
the notice requirement and conclude that the plaintiff substantially complied with said
requirement. We affirm, however, the trial court’s ruling that the plaintiff could not rely
upon the statutory 120-day extension of the statute of limitations due to his failure to properly
serve the notice. We therefore affirm the trial court’s dismissal of the plaintiff’s claims as
barred by the statute of limitations.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Affirmed in Part, Reversed in Part; Case Remanded
T HOMAS R. F RIERSON, II, J., delivered the opinion of the Court, in which D. M ICHAEL
S WINEY and J OHN W. M CC LARTY, JJ., joined.
Donna Keene Holt and G. Turner Howard, III, Knoxville, Tennessee, for the appellant,
Clayton Arden.
Heidi A. Barcus, Knoxville, Tennessee, for the appellees, Kenya I. Kozawa, M.D., and Ken
Kozawa, M.D., P.C.
Gary G. Spangler and Carrie S. O’Rear, Knoxville, Tennessee, for the appellee, Sweetwater
Hospital Association.
OPINION
I. Factual and Procedural Background
The plaintiff, Clayton Arden, filed the instant health care liability action, alleging that
his wife, Deborah Arden, received negligent medical treatment immediately prior to her
death. Defendant, Dr. Kenya Kozawa, treated Ms. Arden at Sweetwater Hospital Association
(“the Hospital”) beginning on August 24, 2011, due to her complaints of abdominal pain.
Ms. Arden subsequently developed pancreatitis and other complications, which Dr. Kozawa
also treated. Ms. Arden’s condition worsened, however, and she died on September 15,
2011.
On August 1, 2012, Mr. Arden’s attorney sent pre-suit notice letters, as required by
Tennessee Code Annotated § 29-26-121, to Dr. Kozawa and the Hospital’s administrator via
Federal Express Priority service. These letters informed the defendants that they would be
named in a health care liability action regarding the care provided to Deborah Arden, wife
of Clayton Arden. The letters failed to list Mr. Arden’s address. Dr. Kozawa’s letter was
sent to the Hospital at 304 Church Street, Sweetwater, Tennessee, 37874, even though the
address listed on the Tennessee Department of Health website for Dr. Kozawa is 304 Wright
Street, Sweetwater, Tennessee, 37874.
Mr. Arden filed the instant action against Dr. Kozawa and the Hospital on October
19, 2012. The complaint alleges various instances of medical negligence by the defendants,
including (1) failure to perform complete and accurate physical examinations of the patient
in light of ongoing abdominal complaints; (2) failure to give appropriate attention to nursing
notes and concerns regarding the patient’s symptoms; (3) failure to transfer the patient to
another facility upon request; and (4) failure to obtain a surgical consult for the patient, who
exhibited signs and symptoms of abdominal compartment syndrome, which resulted in
abdominal compartment syndrome induced by pancreatitis, multi-system organ failure, and
ultimately, death.
A Certificate of Good Faith was filed with the complaint, along with a copy of the
notice letters and documentation from Federal Express tracking delivery of the notice letters.
Mr. Arden also attached an affidavit from the person who sent the letters. The attached
provider list, however, did not contain the address for the Hospital, and there was no
certificate of mailing from the U.S. Postal Service because the letters had been sent via
Federal Express.
The defendants subsequently filed motions for summary judgment, asserting that Mr.
Arden failed to comply with the requirements of Tennessee Code Annotated § 29-26-121.
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Specifically, defendants alleged that (1) the letters failed to include the address of Clayton
Arden, pursuant to Tennessee Code Annotated § 29-26-121(a)(2)(B); (2) the notice sent to
Dr. Kozawa was invalid because it was not sent to the address listed on the Tennessee
Department of Health website, pursuant to Tennessee Code Annotated § 29-26-
121(a)(3)(B)(i); (3) the health care provider list did not include the address for the Hospital,
pursuant to Tennessee Code Annotated § 29-26-121(a)(2)(D); and (4) the letters were not
sent via U.S. certified mail, return receipt requested, resulting in no certificate of mailing
from the United States Postal Service, as required by Tennessee Code Annotated § 29-26-
121(a)(4).
Following a hearing on the motions for summary judgment, the trial court granted the
motions, ruling that Mr. Arden’s failure to strictly adhere to the requirements of the statute
was fatal to his health care liability action. The court found that there was no demonstration
of extraordinary cause to excuse Mr. Arden’s noncompliance with the statute. The trial court
also found that Mr. Arden’s complaint was filed outside the one-year statute of limitations
and that Mr. Arden was not entitled to take advantage of the 120-day extension granted by
Tennessee Code Annotated § 29-26-121(c) because of his failure to strictly comply with the
statutory notice requirements. Accordingly, Mr. Arden’s complaint was dismissed. Mr.
Arden timely appealed that ruling to this Court.
II. Issues Presented
The parties present the following issues for our review, which we have restated
slightly:
1. Whether the trial court erred by dismissing Mr. Arden’s claims for
failure to strictly comply with the requirements of pre-suit notice set
forth in Tennessee Code Annotated § 29-26-121 when actual notice
was given to the defendants more than sixty days before the complaint
was filed and a Certificate of Good Faith was filed with the complaint.
2. Whether Mr. Arden substantially complied with Tennessee Code
Annotated § 29-26-121.
3. Whether the trial court erred by ruling that Mr. Arden’s claims were
barred by the applicable statute of limitations.
4. Whether any subsequent claims raised by Mr. Arden would be barred
under the doctrine of res judicata.
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III. Standard of Review
The issues presented on appeal are questions of law. We review questions of law,
including those of statutory construction, de novo with no presumption of correctness. Tenn.
R. App. P. 13(d); Estate of French v. Stratford House, 333 S.W.3d 546, 554 (Tenn. 2011).
As our Supreme Court has explained:
The leading rule governing our construction of any statute is to ascertain and
give effect to the legislature’s intent. To that end, we start with an
examination of the statute’s language, presuming that the legislature intended
that each word be given full effect. 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 v. AMISUB (SFH), Inc., 382 S.W.3d 300, 308 (Tenn. 2012) (other internal citations
omitted).
IV. Pre-Suit Notice Requirements
Tennessee Code Annotated § 29-26-121 provides, in pertinent part:
(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
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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.
(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, as established by the specified
proof of service, which shall be filed with the complaint:
(A) Personal delivery of the notice to the health care provider or
an identified individual whose job function includes receptionist
for deliveries to the provider or for arrival of the provider’s
patients at the provider’s current practice location. Delivery
must be established by an affidavit stating that the notice was
personally delivered and the identity of the individual to whom
the notice was delivered; or
(B) Mailing of the notice:
(i) To an individual health care provider at both
the address listed for the provider on the
Tennessee department of health web site and the
provider’s current business address, if different
from the address maintained by the Tennessee
department of health; provided, that, if the
mailings are returned undelivered from both
addresses, then, within five (5) business days after
receipt of the second undelivered letter, the notice
shall be mailed in the specified manner to the
provider’s office or business address at the
location where the provider last provided a
medical service to the patient; or
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(ii) To a health care provider that is a corporation
or other business entity at both the address for the
agent for service of process, and the provider’s
current business address, if different from that of
the agent for service of process; provided, that, if
the mailings are returned undelivered from both
addresses, then, within five (5) business days after
receipt of the second undelivered letter, the notice
shall be mailed in the specified manner to the
provider’s office or business address at the
location where the provider last provided a
medical service to the patient.
(4) Compliance with subdivision (a)(3)(B) shall be demonstrated by filing a
certificate of mailing from the United States postal service stamped with the
date of mailing and an affidavit of the party mailing the notice establishing that
the specified notice was timely mailed by certified mail, return receipt
requested. A copy of the notice sent shall be attached to the affidavit. It is not
necessary that the addressee of the notice sign or return the return receipt card
that accompanies a letter sent by certified mail for service to be effective.
(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.
(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. Personal service
is effective on the date of that service. Service by mail is effective on the first
day that service by mail is made in compliance with subdivision (a)(2)(B). In
no event shall this section operate to shorten or otherwise extend the statutes
of limitations or repose applicable to any action asserting a claim for health
care liability, nor shall more than one (1) extension be applicable to any
provider. Once a complaint is filed alleging a claim for health care liability,
the notice provisions of this section shall not apply to any person or entity that
is made a party to the action thereafter by amendment to the pleadings as a
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result of a defendant’s alleging comparative fault.
A. Content of Pre-Suit Notice
The trial court found that strict compliance was required with regard to the pre-suit
notice requirements of Tennessee Code Annotated § 29-26-121. Mr. Arden asserts that the
trial court erred in dismissing his claims due to minor technical failings in the content of the
pre-suit notice. Mr. Arden contends that he must only show substantial compliance with the
requirements regarding the content of the notice and that he has done so in this case. The
defendants concede that substantial compliance is the proper standard for measuring Mr.
Arden’s conformation with the content requirements. They assert, however, that Mr. Arden
failed to demonstrate substantial compliance.
Our Supreme Court has recently explained that substantial compliance is the proper
standard with regard to the requirements for the contents of the pre-suit notice. See
Thurmond v. Mid-Cumberland Infectious Disease Consultants, PLC, __ S.W.3d __, No.
M2012-02270-SC-R11-CV, 2014 WL 1632183 at *6-7 (Tenn. Apr. 24, 2014). As explained
in Thurmond:
In Myers, we declared that the “essence” of the pre-suit notice statute is to
notify potential defendants “of a [health care liability] claim before suit is
filed.” 382 S.W.3d at 309 (stating that section 29-26-121(a) is “to give
prospective defendants notice of a forthcoming lawsuit”). Thus, we concluded
that the section 29-26-121(a) requirement of pre-suit notice is “fundamental,”
“mandatory,” and “not subject to satisfaction by substantial compliance.” Id.
at 309, 310. Because no pre-suit notice of any kind had been given or even
attempted in Myers, we did not decide whether the statutory “requirements as
to the content of the notice . . . may be satisfied by substantial compliance.”
Id. at 311.
We answered that question in Stevens, where the plaintiff attempted to comply
with the pre-suit notice requirement but failed to provide a “HIPAA compliant
medical authorization permitting the provider receiving the notice to obtain
complete medical records from each other provider being sent a notice.” 418
S.W.3d at 552 (quoting Tenn. Code Ann. § 29–26–121(a)(2)(E)). We
explained that the pre-suit notice content requirements of Tennessee Code
Annotated section 29-26-121(a)(2)(A)-(E) serve distinct but related purposes.
Id. at 554. We held that where strict compliance with “a particular statutory
provision is essential to avoid prejudicing an opposing litigant,” then the
statutory provision will be deemed mandatory and strict compliance required.
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Id. at 555. After considering the purposes served by the HIPAA-compliant
medical authorization, we concluded that a plaintiff cannot satisfy this content
requirement merely by providing potential defendants with actual notice of a
potential claim. Id. However, we stopped short of interpreting the statute as
demanding strict compliance. Id. Rather, we held that “[n]on-substantive
errors and omissions” and “[a] plaintiff's less-than-perfect compliance” with
[subsection] 29-26-121(a)(2)(E) will “not derail a healthcare liability claim”
so long as the medical authorization provided is “sufficient to enable
defendants to obtain and review a plaintiff's relevant medical records.” Id.
Thus, we held that “a plaintiff must substantially comply, rather than strictly
comply, with the requirement[ ] of [subsection] 29-26-121(a)(2)(E).” Id.
Myers and Stevens thus instruct that: (1) providing potential defendants
pre-suit notice of health care liability claims is the “essence” and
“fundamental” purpose of the pre-suit notice requirement, Myers, 382 S.W.3d
at 309; and (2) unless strict compliance with a notice content requirement “is
essential to avoid prejudicing an opposing litigant,” substantial compliance
with a content requirement will suffice, Stevens, 418 S.W.3d at 555.
Thurmond, __ S.W.3d at __, 2014 WL 1632183 at *6-7 (Tenn. Apr. 24, 2014).
In this case, the only failings by Mr. Arden with regard to the content of the notices
sent were (1) the omission of his own address in the notice letter and (2) the omission of the
Hospital’s address on the provider list. We conclude that the omission of these addresses did
not prejudice the defendants. The Hospital was obviously aware of the Hospital’s address,
as was Dr. Kozawa, who admits that he practiced at the Hospital. Further, if Mr. Arden’s
address was necessary in order to gather information about the decedent or the claims, it
could have easily been obtained from his attorney, whose contact information was listed in
the notices sent. The notices properly listed Mr. Arden’s name and relationship to the
decedent, as well as the decedent’s name and date of birth. The defendants did not
demonstrate any prejudice to their ability to investigate the claim by the omission of these
addresses. As such, we conclude that Mr. Arden substantially complied with the content
requirements for pre-suit notice. The trial court erred in requiring strict compliance
regarding the content of the pre-suit notice.1
1
We note that while substantial compliance with the statute is sufficient, a plaintiff who does not
strictly comply with the statutory pre-suit notice requirements will bear the risk of being deemed to have not
substantially complied.
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B. Service of Pre-Suit Notice
Defendants also contend that regardless of whether Mr. Arden substantially complied
with the content of the notice sent, he still failed to properly serve the pre-suit notice in the
manner required by the statute. Tennessee Code Annotated § 29-26-121(a)(3) specifically
provides that 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, as established by the specified proof of service, which shall be filed
with the complaint.” The statute then states that the notice may either be personally delivered
or mailed. See Tenn. Code Ann. § 29-26-121 (a)(3). If the notice is mailed, Tennessee Code
Annotated § 29-26-121 (a)(4) provides that compliance “shall be demonstrated by filing a
certificate of mailing from the United States postal service stamped with the date of mailing
and an affidavit of the party mailing the notice establishing that the specified notice was
timely mailed by certified mail, return receipt requested.”
As our Supreme Court has explained regarding statutory construction in general:
When courts are called upon to construe a statute, their goal is to give full
effect to the General Assembly’s purpose, stopping just short of exceeding its
intended scope. Because the legislative purpose is reflected in a statute’s
language, the courts must always begin with the words that the General
Assembly has chosen. Courts must give these words their natural and ordinary
meaning. And because these words are known by the company they keep,
courts must also construe these words in the context in which they appear in
the statute and in light of the statute’s general purpose.
...
The rules of statutory construction permit the courts to employ a number of
presumptions with regard to the legislative process. The courts may, for
example, presume that the General Assembly used every word deliberately and
that each word has a specific meaning and purpose. The courts may also
presume that the General Assembly did not intend to enact a useless statute,
and that the General Assembly “did not intend an absurdity.”
With specific regard to the legislators’ knowledge of the existing law affecting
the subject matter of the legislation, the courts may presume that the General
Assembly knows the “state of the law.” In addition, the courts may presume
that the General Assembly is aware of its own prior enactments. The courts
may likewise presume that the General Assembly is aware of the manner in
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which the courts have construed the statutes it has enacted.
Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 526-27 (Tenn. 2010)(internal citations omitted).
The statutory provisions at issue in this case are clear and unambiguous. The plain
language of the statute provides that pre-suit notice may effectively be served in one of two
ways: personal delivery or by mail. If the notice is mailed, the statute provides that
compliance “shall be demonstrated by filing a certificate of mailing from the United States
postal service stamped with the date of mailing and an affidavit of the party mailing the
notice establishing that the specified notice was timely mailed by certified mail, return receipt
requested.” Tenn. Code Ann. § 29-26-121 (a)(4) (emphasis added). Reading these
provisions together and “constru[ing] these words in the context in which they appear,” see
Lee Med., Inc., 312 S.W.3d at 526, it is clear that the legislature intended for service of pre-
suit notice by mail to be effectuated only through the United States Postal Service via
certified mail, return receipt requested. The legislature provided for no other method of
service by mail in the statute.
Further, even if the language of Tennessee Code Annotated § 29-26-121(a)(3) and (4)
were somehow deemed ambiguous, this Court can also take notice of the fact that the statute
was amended from its original version to delete any reference to mailing or delivery utilizing
other carriers. The initial version of the statute requiring pre-suit notice, enacted in 2008,
provided that the notice could either be “actual written notice provided to the health care
provider or such provider’s authorized agent; or notice by registered mail, return receipt
requested, to the health care provider or such provider’s authorized agent; or notice by
overnight delivery using a nationally recognized carrier.” Health Care Providers - Medical
Malpractice - Actions and Proceedings, Pub. Ch. 919, S.B. 2001 (2008) (emphasis added).
The current version of Tennessee Code Annotated § 29-26-121(a)(3) and (4) was enacted the
following year. Clearly, the present version of the statute omits the above language regarding
overnight delivery by a nationally recognized carrier.
As a rule of statutory construction, “a change in the language of the statute indicates
that a departure from the old language was intended.” Lavin v. Jordon, 16 S.W.3d 362, 369
(Tenn. 2000). As this Court has elucidated, “[w]hen the legislature makes a change in the
language of a statute, the general rule is that such change raises a presumption that the
legislature intended a departure from the old law.” Dunn v. Hackett, 833 S.W.2d 78, 81
(Tenn. Ct. App. 1992). See also State v. Turner, 193 S.W.3d 522, 527 (Tenn. 2006) (“When
the legislature makes a change in the language of a statute, we must assume that it was
deliberate.”); State v. Odom, 928 S.W.2d 18, 30 (Tenn. 1996) (“When the legislature amends
a statute, it presumably does so either to change the law or to clarify it.”). Therefore, based
upon the legislature’s omission of other carriers as a means of mailing or delivery of the pre-
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suit notice in the current version of the statute, we must presume that the legislature
deliberately intended that the U.S. Postal Service would be the only acceptable means of
service of the notice other than personal delivery. See also John A. Day, Med Mal Makeover
2009 Act Improves on ‘08, 45 T ENN. B.J. 14, 16 (July 2009) (noting that the 2009 amendment
to Tennessee Code Annotated § 29-26-121 provides for mailing only through the U.S. Postal
Service, with a certificate of mailing from the post office to definitively show the date of the
actual mailing).
Mr. Arden contends that only the receipt of actual notice is essential, relying primarily
upon this Court’s opinion in Hinkle v. Kindred Hosp., No. M2010-02499-COA-R3-CV,
2012 WL 3799215 (Tenn. Ct. App. Aug. 31, 2012), perm. app. denied (Tenn. Dec. 10, 2013).
In Hinkle, pre-suit notice was sent to the defendant doctor at the address of the hospital
where he had practiced at the time of the plaintiff’s injury, via registered letter. Id. at *7.
The defendant doctor was no longer working at the hospital, however, and the hospital faxed
a copy of the letter to the doctor’s current place of employment. Id. It was undisputed that
the doctor received actual notice more than sixty days before the filing of the complaint and
that his liability insurer began communicating and exchanging documents with the plaintiff’s
counsel. Id. This Court ruled that such notice was sufficient, stating that the statute “does
not preclude proof of delivery of the notice by other means.” Id. This Court did not,
however, address the above-noted change in the statutory requirements that omitted mailing
or delivery by other carriers as an acceptable means of service. Id.
We decline to extend the holding in Hinkle to the case at bar. While it is also
undisputed in this case that the defendants received actual notice, the notice was not sent or
even attempted to be sent utilizing either of the methods specifically set forth in the statute.
Based upon the legislature’s intentional omission of mailing or delivery by other carriers as
a means for service of the pre-suit notice, we cannot conclude that Mr. Arden’s mailing via
Federal Express constitutes substantial compliance with the requirements of Tennessee Code
Annotated § 29-26-121(a)(3) and (4).
Having found that the sole acceptable method of mailing pre-suit notice would be
through the U.S. Postal Service, we conclude that Mr. Arden’s mailing through Federal
Express Priority service was improper and ineffective. Mr. Arden was therefore precluded
from relying upon the 120-day extension of the statute of limitations provided by Tennessee
Code Annotated § 29-26-121(c). As such, his complaint filed more than one year after Ms.
Arden’s death was untimely. See, e.g., Byrge v. Parkwest Med. Ctr., No.
E2013-00927-COA-R3-CV, 2014 WL 346675 at *5 (Tenn. Ct. App. Jan. 30, 2014). We
affirm the trial court’s dismissal of Mr. Arden’s lawsuit. The question regarding lack of
service to Dr. Kozawa’s address as listed on the Tennessee Department of Health website is
pretermitted as moot.
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V. Res Judicata
We also need not address the defendants’ issue regarding whether res judicata would
prohibit Mr. Arden from re-filing his claims. As stated above, because Mr. Arden did not
file his claims within the statute of limitations and could not rely upon the 120-day extension
of the statute of limitations, Mr. Arden’s claims are clearly time-barred.
VI. Conclusion
We reverse the trial court’s ruling requiring strict compliance with the content
requirements of pre-suit notice pursuant to Tennessee Code Annotated § 29-26-121. We
affirm the judgment of the trial court dismissing Mr. Arden’s claims, however, finding them
to be time-barred due to his failure to properly serve pre-suit notice via personal delivery or
United States Postal Service certified mail, return receipt requested. Costs on appeal are
taxed to the appellant, Clayton Arden. This case is remanded to the trial court, pursuant to
applicable law, for enforcement of the trial court’s judgment and collection of costs assessed
below.
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THOMAS R. FRIERSON, II, JUDGE
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