07/25/2017
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
April 18, 2017 Session
BETTY J. GRIZZLE v. PARKWEST MEDICAL CENTER
Appeal from the Circuit Court for Knox County
No. 3-33-16 Deborah C. Stevens, Judge
No. E2016-01068-COA-R3-CV
The plaintiff initiated this health care liability action on January 25, 2016. The defendant
medical provider filed a motion to dismiss, asserting that the plaintiff had failed to attach
the documentation required by Tennessee Code Annotated § 29-26-121(b) to demonstrate
that proper pre-suit notice had been transmitted. The defendant also asserted that the
plaintiff’s claims should be dismissed for failure to substantially comply with the
requirements of Tennessee Code Annotated § 29-26-121(a)(2)(E) regarding a medical
authorization compliant with the Health Insurance Portability and Accountability Act
(“HIPAA”). While noting that the plaintiff had substantially complied with Tennessee
Code Annotated § 29-26-121(a)(4) and (b), the trial court found that the medical
authorization forwarded by the plaintiff was incomplete and failed to comply with
HIPAA’s release requirements. The trial court therefore dismissed the plaintiff’s claims.
The plaintiff has timely appealed. We affirm the trial court’s determination that the
plaintiff substantially complied with Tennessee Code Annotated § 29-26-121(a)(4) and
(b). We reverse, however, the trial court’s determination that the plaintiff’s claims should
be dismissed for failure to substantially comply with Tennessee Code Annotated § 29-26-
121(a)(2)(E).
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Affirmed in Part, Reversed in Part; Case Remanded
THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which CHARLES D.
SUSANO, JR., J., and J. STEVEN STAFFORD, P.J., W.S., joined.
H. Franklin Chancey, Cleveland, Tennessee, for the appellant, Betty J. Grizzle.
Broderick L. Young and F. Michael Fitzpatrick, Knoxville, Tennessee, for the appellee,
Parkwest Medical Center.
OPINION
I. Factual and Procedural Background
The plaintiff, Betty J. Grizzle, underwent total hip replacement surgery at
Parkwest Medical Center (“Parkwest”) on or about November 4, 2014. Ms. Grizzle
awoke from her surgery experiencing severe chest pain. When Ms. Grizzle complained
to the hospital staff about this pain, hospital staff performed an x-ray. The x-ray
confirmed that Ms. Grizzle was suffering from broken ribs. Ms. Grizzle was apparently
provided no explanation as to how the injury to her ribs had occurred.
On January 25, 2016, Ms. Grizzle filed a health care liability action against
Parkwest in the Knox County Circuit Court (“trial court”). In her complaint, Ms. Grizzle
specifically averred that she had complied with the pre-suit notice requirements found in
Tennessee Code Annotated § 29-26-121. Despite such averment, Ms. Grizzle did not
provide the requisite documentation with her complaint establishing proof of pre-suit
notice. Ms. Grizzle did, however, file the certificate of good faith required by Tennessee
Code Annotated § 29-26-122.
Parkwest subsequently filed a motion to dismiss, asserting that Ms. Grizzle had
failed to attach to her complaint the documentation required by Tennessee Code
Annotated § 29-26-121(a)(4) and (b). Parkwest further asserted that the medical
authorization provided with Ms. Grizzle’s pre-suit notice was not HIPAA compliant.
Parkwest attached a copy of the medical authorization that had accompanied the pre-suit
notice, demonstrating that certain blanks on the form had not been filled, including the
name of the medical provider and the treatment dates. Parkwest did not dispute,
however, that Ms. Grizzle transmitted pre-suit notice.
Ms. Grizzle subsequently provided a “notice of filing” on March 14, 2016,
attaching copies of the pre-suit notice letter and allegedly HIPAA-compliant
authorization sent to Parkwest. Ms. Grizzle did not file the affidavit required by
Tennessee Code Annotated § 29-26-121(a)(4). On April 8, 2016, the trial court
conducted a hearing regarding Parkwest’s motion to dismiss. The court subsequently
entered an order on April 29, 2016, dismissing Ms. Grizzle’s claims. The court first
determined that Ms. Grizzle had substantially complied with Tennessee Code Annotated
§ 29-26-121(a)(4) and (b), despite the lack of an affidavit. However, the court also
determined that Ms. Grizzle had failed to fulfill the requirements of Tennessee Code
Annotated § 29-26-121(a)(2)(E) because the medical authorization provided by Ms.
Grizzle was not HIPAA compliant. The court specifically found that the authorization
contained a number of spaces for information that remained blank, including the spaces
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for the name of the medical provider to whom the authorization was directed and for Ms.
Grizzle’s treatment dates. The court relied upon this Court’s decision in Bray v. Khuri in
determining that Ms. Grizzle’s medical authorization did not comply with HIPAA’s
requirements. See Bray v. Khuri, No. W2015-00397-COA-R3-CV, 2015 WL 7775316,
at *4 (Tenn. Ct. App. Dec. 3, 2015), rev’d by Bray v. Khuri, __ S.W.3d __, No. W2015-
00397-SC-R11-CV, 2017 WL 2856697 (Tenn. July 5, 2017). The trial court thereby
dismissed Ms. Grizzle’s complaint pursuant to Tennessee Code Annotated § 29-26-121.
Ms. Grizzle timely appealed.
II. Issues Presented
Ms. Grizzle presents one issue for our review, which we have restated slightly:
1. Whether the trial court erred by dismissing Ms. Grizzle’s action
based upon her failure to substantially comply with the requirements
of Tennessee Code Annotated § 29-26-121(a)(2)(E) regarding a
HIPAA-compliant medical release.
Parkwest raises the following additional issue, which we have also restated slightly:
2. Whether the trial court erred by determining that Ms. Grizzle
substantially complied with the requirements of Tennessee Code
Annotated § 29-26-121(a)(4) and (b) regarding the filing of
documentation establishing that proper pre-suit notice was provided.
III. Standard of Review
Our Supreme Court has elucidated the following regarding the standard of review
applicable to a motion to dismiss a health care liability action based upon the plaintiff’s
noncompliance with Tennessee Code Annotated § 29-26-121:
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
3
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). . . . 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 favor of the plaintiff. Lind v. Beaman
Dodge, Inc., 356 S.W.3d 889, 894 (Tenn. 2011).
***
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.
Myers v. AMISUB (SFH), Inc., 382 S.W.3d 300, 307-08 (Tenn. 2012).
4
In Arden v. Kozawa, 466 S.W.3d 758, 763 (Tenn. 2015), our Supreme Court
clarified:
The content and affidavit requirements of Tennessee Code
Annotated sections 29-26-121(a)(2), (a)(3), and (a)(4) are not mandatory,
but directory, and can be achieved through substantial compliance. See
Thurmond v. Mid-Cumberland Infectious Disease Consultants, PLC, 433
S.W.3d 512, 520 (Tenn. 2014) (allowing substantial compliance with the
affidavit requirement under Tennessee Code Annotated sections 29-26-
121(a)(3)(B) and (a)(4)); Stevens ex rel. Stevens v. Hickman Comm. Health
Care Servs., Inc., 418 S.W.3d 547, 555 (Tenn. 2013) (allowing substantial
compliance with the HIPAA form requirement under Tennessee Code
Annotated section 29-26-121(a)(2)(E)). “[U]nless strict compliance with a
notice content requirement ‘is essential to avoid prejudicing an opposing
litigant,’ substantial compliance with a content requirement will suffice.”
Thurmond, 433 S.W.3d at 520 (quoting Stevens, 418 S.W.3d at 555).
The High Court has also explained that to determine whether a plaintiff has substantially
complied with a statutory requirement, “a reviewing court should consider the extent and
significance of the plaintiff’s errors and omissions and whether the defendant was
prejudiced by the plaintiff’s noncompliance.” Stevens ex rel. Stevens v. Hickman Comm.
Health Care Servs., Inc., 418 S.W.3d 547, 556 (Tenn. 2013).
IV. Requirements Concerning HIPAA-Compliant Medical Authorization
Ms. Grizzle contends that the trial court improperly dismissed her claim based on
her failure to substantially comply with Tennessee Code Annotated § 29-26-121(a)(2)(E).
Parkwest argues that the trial court correctly dismissed the action because the medical
authorization provided by Ms. Grizzle was insufficient to allow Parkwest to access
relevant medical records to mount a defense. Tennessee Code Annotated § 29-26-121
(Supp. 2016) 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:
5
(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.
In this case, the trial court determined that Ms. Grizzle had failed to comply with
Tennessee Code Annotated § 29-26-121(a)(2)(E) and that such failure was fatal to her
claims. The trial court noted the following regarding Ms. Grizzle’s pre-suit notice:
In this case, on October 15th, 2015, the plaintiff, through counsel,
submitted a pre suit notice letter which stated the claimant’s name, address,
Social Security Number and date of birth. The letter stated Ms. Grizzle was
“asserting a potential claim for medical malpractice concerning the events
that took place at the Parkwest Medical Center on or between November 4,
2014 and November 7, 2014.” The second paragraph of the letter states
that “HIPAA compliant medical authorizations permitting you to obtain a
complete copy of Ms. Grizzle’s medical records from her various providers
are enclosed.”
Enclosed with the letter was a document titled “Patient
Authorization,” in which a number of spaces had been left blank.
Underneath [its] title, the form states, “To Permit Use and Disclosure of
Health Information,” and again provides the name of [Ms.] Grizzle, her
date of birth, and her Social Security Number. It then states, “I am either
the patient or the patient’s representative. By signing this form, I
authorize:” It then provided a space for the name of the medical provider
and for the provider’s phone number, but both spaces were left blank. The
form then provided a space to identify the party to whom disclosure may be
made, and this space is filled in with the name of Parkwest Medical Center.
6
However, the form then provided a space to list treatment dates for which
protected health information may be disclosed, and this space was also left
blank.
The form continues and includes the requisite notification that the
patient can revoke the form, but again spaces are left blank as to whom is to
receive the revocation, and as to whom may rely on the authorization until
they receive written notice that the patient is revoking it.
In her principal brief on appeal, Ms. Grizzle concedes that the release form
“included in Ms. Grizzle’s pre-suit notice packet did not denote on the face of the form
Ms. Grizzle’s treatment dates, who could receive the authorization and who the
authorization should go to.” Ms. Grizzle argues, however, that the pre-suit notice letter
contained this information. Therefore, according to Ms. Grizzle, the omissions on the
medical authorization were not sufficient to deny Parkwest access to Ms. Grizzle’s
medical records.
As our Supreme Court has explained:
Tenn. Code Ann. § 29-26-121(a)(2)(E) serves to equip defendants with the
actual means to evaluate the substantive merits of a plaintiff’s claim by
enabling early access to a plaintiff’s medical records. Because HIPAA
itself prohibits medical providers from using or disclosing a plaintiff’s
medical records without a fully compliant authorization form, it is a
threshold requirement of the statute that the plaintiff’s medical
authorization must be sufficient to enable defendants to obtain and review a
plaintiff’s relevant medical records. See 45 C.F.R. § 164.508(a)(1) (“a
covered entity may not use or disclose protected health information without
an authorization that is valid under this section”). Tenn. Code Ann. § 29-
26-121(d)(1) creates a statutory entitlement to the records governed by §
29-26-121(a)(2)(E). See Tenn. Code Ann. § 29-26-121(d)(1) (“All parties
in an action covered by this section shall be entitled to obtain complete
copies of the claimant’s medical records from any other provider receiving
notice . . . .”) (emphasis added).
Stevens, 418 S.W.3d at 555.
The High Court further elucidated:
Federal regulations state that a HIPAA compliant authorization must
include the following six elements:
7
(i) A description of the information to be used or disclosed
that identifies the information in a specific and meaningful
fashion.
(ii) The name or other specific identification of the person(s),
or class of persons, authorized to make the requested use
or disclosure.
(iii) The name or other specific identification of the person(s),
or class of persons, to whom the covered entity may
make the requested use or disclosure.
(iv) A description of each purpose of the requested use or
disclosure . . . .
(v) An expiration date or an expiration event that relates to
the individual or the purpose of the use or disclosure . . . .
(vi) Signature of the individual and date. If the authorization
is signed by a personal representative of the individual, a
description of such representative’s authority to act for
the individual must also be provided.
45 C.F.R. § 164.508(c)(1).
Stevens, 418 S.W.3d at 555-56. “In determining whether a plaintiff has substantially
complied with a statutory requirement, a reviewing court should consider the extent and
significance of the plaintiff’s errors and omissions and whether the defendant was
prejudiced by the plaintiff’s noncompliance.” Id. at 556.
The trial court placed significant reliance on this Court’s decision in Bray, 2015
WL 7775316, at *4, in dismissing Ms. Grizzle’s complaint. In Bray, the plaintiff filed a
health care liability action and sent the requisite pre-suit notice, but the plaintiff’s
attached medical authorization was deficient. Id. at *1. Specifically, the medical
authorization “did not include a description of the information to be used” and “failed to
specifically identify which health care providers were authorized to make the requested
disclosures.” Id. at *4. The plaintiff first argued that she was not required to provide a
HIPAA-compliant medical authorization when the defendant was the sole medical
provider receiving the notice. Id. at *3. This Court rejected that contention, determining:
8
Without a HIPAA-compliant authorization form, the full purpose of the
statute becomes frustrated. While Appellee [medical provider] may have
physically possessed Decedent’s records, he was unable to review them
with his attorney in order to evaluate the merits of Appellant’s claim.
Because we cannot construe a statute in such a way that would violate “the
obvious intention of the legislature,” we conclude that Appellant was
required to provide a HIPAA-compliant authorization.
Id. (internal citations omitted).
Our Supreme Court, however, recently reversed this Court’s holding in Bray. See
Bray v. Khuri, __ S.W.3d __, No. W2015-00397-SC-R11-CV, 2017 WL 2856697 (Tenn.
July 5, 2017). The Supreme Court elucidated:
We hold that, based on the clear and unambiguous language of
section 29-26-121(a)(2)(E), a plaintiff need not provide a HIPAA-
compliant authorization when a single health care provider is given pre-suit
notice of a health care liability claim. The authorization only allows a
potential defendant to obtain the prospective plaintiff’s medical records
from any other healthcare provider also given notice and identified as a
potential defendant in the pre-suit notice. This authorization requirement is
consistent with section 29-26-121(d)(1), which specifies that all parties to a
healthcare suit “shall be entitled to obtain complete copies of the claimant’s
medical records from any other provider receiving notice” and that the
claimant complies with this requirement by providing a HIPAA-compliant
medical authorization with pre-suit notice. Id. § 29-26-121(d)(1).
Dr. Khuri argues that HIPAA prohibits the disclosure of a patient’s
medical records to counsel for evaluating the merits of a potential claim
absent a valid medical authorization. HIPAA, enacted in 1996, establishes
requirements for protecting confidential medical information by healthcare
providers. As a general rule, HIPAA prohibits a healthcare provider from
using or disclosing protected health information without a valid
authorization. 45 C.F.R. § 164.508(a)(1). However, HIPAA regulations
allow a healthcare provider to “use or disclose protected health information
for treatment, payment, or health care operations,” with some exceptions
for certain uses or disclosure requiring an authorization. 45 C.F.R. §
164.506(a) (emphasis added); see also id. § 164.506(c)(1). “Health care
operations” include “[c]onducting or arranging for medical review, legal
services, and auditing functions.” Id. § 164.501 (emphasis added). The
United States Department of Health and Human Services (“HHS”), in its
9
Frequently Asked Questions (“FAQ”) for Professionals pages of its
website, indicates that a healthcare provider may use or disclose protected
health information for litigation “whether for judicial or administrative
proceedings . . . or as part of the covered entity’s health care operations.”
HHS further recognizes that “[i]n most cases, the covered entity will share
protected health information for litigation purposes with its lawyer, who is
either a workforce member or a business associate.” . . . HIPAA does not
require Dr. Khuri to obtain a medical authorization to use a patient’s
medical records in his possession and consult with counsel to evaluate the
merits of a potential claim.
***
Dr. Khuri relies on Roberts v. Prill, E2013-02202-COA-R3-CV,
2014 WL 2921930, at *6 (Tenn. Ct. App. June 26, 2014), no perm. app.
filed, an unreported decision, to support his argument that a HIPAA-
compliant medical authorization was required to enable him to use Mr.
Bray’s medical records in his possession. Roberts, however, is
distinguishable. In Roberts, the plaintiff filed a healthcare liability suit
against the decedent’s treating oncologist and the specialty healthcare group
that employed the oncologist. Id. at *1. The trial court granted the
defendants’ motions to dismiss based on its finding that the plaintiff failed
to provide a HIPAA-compliant authorization and failed to attach a copy of
the pre-suit notices to her complaint. The Court of Appeals affirmed. Id.
While Roberts and the case at bar are both healthcare liability suits
concerning incomplete medical authorizations, they are factually
distinguishable on a critical point: Roberts involved two defendants,
whereas this case involves a single defendant. Neither the trial court nor
the Court of Appeals in Roberts considered whether section 29-26-
121(a)(2)(E) applies when a single healthcare provider is named as a
potential defendant.
***
Because we conclude that Tennessee Code Annotated section 29-26-
121(a)(2)(E) does not apply here, where only a single healthcare provider
received pre-suit notice as a potential defendant, the issue of whether Mrs.
Bray substantially complied with section 29-26-121(a)(2)(E) is
pretermitted.
***
10
After careful review, we hold that a HIPAA-compliant medical
authorization was not required under section 29-26-121(a)(2)(E) because
Mrs. Bray’s pre-suit notice was sent to a single provider.
Id. at *2-4 (footnotes omitted).
Likewise, in this case, the provision of pre-suit notice was required for only a
single defendant. The Supreme Court in Bray concluded that plaintiffs suing a single
health care liability provider are excused from complying with Tennessee Code
Annotated § 29-26-121(a)(2)(E). Id. Following the Bray decision, we conclude that
Tennessee Code Annotated § 29-26-121(a)(2)(E) is inapplicable to Ms. Grizzle’s pre-suit
notice in this matter because Parkwest was the sole defendant. We accordingly reverse
the trial court’s dismissal of Ms. Grizzle’s claims based on Tennessee Code Annotated §
29-26-121(a)(2)(E).
V. Requirements Concerning Documentation to be Filed with Complaint
Parkwest also asserts that the trial court erred by failing to dismiss Ms. Grizzle’s
complaint due to her failure to concomitantly file the requisite documentation pursuant to
Tennessee Code Annotated § 29-26-121(a)(4) and (b). These provisions state:
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.
***
If a complaint is filed in any court alleging a claim for health care liability,
the pleadings shall state whether each party has complied with subsection
(a) and shall provide the documentation specified in subdivision (a)(2).
The court may require additional evidence of compliance to determine if
the provisions of this section have been met. The court has discretion to
excuse compliance with this section only for extraordinary cause shown.
Tenn. Code Ann. § 29-26-121(a)(4) and (b).
11
Parkwest argues that Ms. Grizzle failed to comply with these statutory provisions
despite her “notice of filing” on March 15, 2016, because the requisite affidavit of the
party mailing the notice was never filed. The trial court determined, however, that Ms.
Grizzle had substantially complied with the documentation requirements “even absent the
filing of the required affidavit.”
Our Supreme Court addressed the subject of substantial compliance in relation to
Tennessee Code Annotated § 29-26-121(a)(4) and (b) in Thurmond v. Mid-Cumberland
Infectious Disease Consultants, PLC, 433 S.W.3d 512 (Tenn. 2014). In Thurmond, the
defendants claimed that the plaintiff’s failure to file with the complaint an affidavit
demonstrating proof of pre-suit notice amounted to non-compliance with Tennessee Code
Annotated § 29-26-121(a)(3), which mandated dismissal of the action. Id. at 518. Five
days after filing his complaint, the plaintiff filed a disc containing documentation
showing compliance with Tennessee Code Annotated § 29-26-121(a), along with a notice
of filing. Id. at 514. As the defendants pointed out: “(1) the complaint did not include
the date pre-suit notice was sent; (2) the disc referred to in the complaint . . . was not
actually filed with the complaint; and (3) the disc filed five days after the complaint did
not contain an affidavit of the person who sent pre-suit notice.” Id. at 515. Three weeks
after the defendants filed a motion for summary judgment, the plaintiff filed an affidavit
“verifying notice to healthcare providers,” in which plaintiff’s counsel stated that he had
“mailed by certified mail, return receipt requested, written notice of [P]laintiff’s claim” to
defendants months prior to filing his complaint. Id.
Regarding compliance with Tennessee Code Annotated § 29-26-121(a)(4) and (b),
the Thurmond Court explained:
We agree with Defendants that the plain statutory language directed
Plaintiff to file “with the complaint,” id. § 29-26-121(a)(3), “an affidavit of
the party mailing the notice establishing that the specified notice was timely
mailed by certified mail, return receipt requested,” id. § 29-26-121(a)(4).
However, as this Court recognized in Myers, the essence and fundamental
purpose of the statute is providing notice of a potential health care liability
claim before a lawsuit is filed. 382 S.W.3d at 309. While the statute states
that the requirement of timely service of pre-suit notice will be deemed
satisfied if a plaintiff files an affidavit and other documents with the
complaint, conspicuously absent from the statute is any language indicating
that the failure to file the affidavit, and other specified documents, with the
complaint renders timely service of pre-suit notice ineffective. Cf. Fair v.
Cochran, 418 S.W.3d 542, 545 (Tenn. 2013) (refusing to hold that the
prompt return of proof of service of process is necessary to render
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commencement of a lawsuit effective to toll the statute of limitations
because Tennessee Rule of Appellate Procedure 3 contained no language to
that effect). Indeed, the affidavit functions as confirmation that pre-suit
notice was timely served on potential defendants in a manner authorized by
statute. Cf. Presley v. Bennett, 860 S.W.2d 857, 860 (Tenn. 1993)
(“Statutory provisions relating to the mode or time of doing an act to which
the statute applies are ordinarily held to be directory rather than
mandatory.”). As this case clearly illustrates, where pre-suit notice was
timely served, insisting upon strict compliance with the statute requiring the
filing of an affidavit “with the complaint,” Tenn. Code Ann. § 29-26-
121(a)(3), is not “essential to avoid prejudicing an opposing litigant.”
Stevens, 418 S.W.3d at 555. As already stated, Defendants have not made
any claim of prejudice resulting from Plaintiff’s failure to file the affidavit
with the complaint. Thus, substantial compliance with the statutory
affidavit requirement will suffice. See Stevens, 418 S.W.3d at 555.
Furthermore, the record in this case sufficiently establishes that
Plaintiff substantially complied with the statutory affidavit requirement.
Here, Plaintiff’s complaint included a paragraph, as required by section 29-
26-121(b), stating that he had complied with the statutory pre-suit notice
requirement, although Plaintiff’s complaint did not include the exact date
notice was sent. Furthermore, while Plaintiff failed to file Exhibit A with
the complaint, he filed it five days later. Exhibit A contained images of:
(1) the pre-suit notice sent to Defendants; (2) “a certificate of mailing from
the United States postal service stamped with the date of mailing,” Tenn.
Code Ann. § 29-26-121(a)(4), which listed counsel for Plaintiff as the
sender; and (3) copies of the certified mail return receipts containing the
signature of the person who accepted service of the pre-suit notice for
Defendants. Additionally, Plaintiff filed an affidavit on April 5, 2012,
“verifying notice to healthcare providers,” in which Plaintiff’s counsel
stated that he had “mailed by certified mail, return receipt requested,
written notice of [P]laintiff’s claim” to Defendants on October 4, 2011, and
that, as required by statute, the written notice included the names and
addresses of all healthcare providers to whom notice was being sent and
“HIPAA compliant medical authorizations permitting the potential
defendants to obtain complete medical records from each other provider
being sent notice.” See Tenn. Code Ann. § 29-26-121(a)(2). The April 5,
2012 affidavit thus functioned to confirm generally the specific information
Defendants received via Exhibit A only five days after the complaint was
filed. In effect, the affidavit merely summarized and duplicated
information already conveyed to Defendants by the contents of Exhibit A.
13
Thus, the undisputed facts in the record, including the filing of the affidavit
on April 5, 2012, establish that Plaintiff substantially complied with the
affidavit filing requirement of Tennessee Code Annotated subsections 29-
26-121(a)(3)(B) and (a)(4).
***
We conclude that substantial compliance is sufficient to satisfy Tennessee
Code Annotated subsections 29-26-121(a)(3)(B) and (a)(4) . . . .
Id. at 520-21 (footnotes omitted).
In the case at bar, although Ms. Grizzle failed to file the documentation required
by Tennessee Code Annotated § 29-26-121(a)(4) and (b) with her complaint, she
subsequently filed a notice of filing, which included a copy of Ms. Grizzle’s pre-suit
notice letter; a signed, certified mail receipt demonstrating delivery of the pre-suit notice;
and the medical authorization form. Furthermore, Ms. Grizzle explicitly stated in her
complaint that pre-suit notice had been provided. Parkwest did not dispute receipt of pre-
suit notice and did not claim that the lack of the affidavit prejudiced its position in any
way. As our Supreme Court has explained, the affidavit would have merely confirmed
the specific information Ms. Grizzle had already provided. Id. at 521. We therefore
affirm the trial court’s determination that Ms. Grizzle substantially complied with
Tennessee Code Annotated § 29-26-121(a)(4) and (b) in this matter.
VI. Conclusion
For the foregoing reasons, we affirm the trial court’s determination that Ms.
Grizzle substantially complied with Tennessee Code Annotated § 29-26-121(a)(4) and
(b). Having concluded that Tennessee Code Annotated § 29-26-121(a)(2)(E) is
inapplicable to this action involving a single defendant, however, we reverse the trial
court’s determination that Ms. Grizzle’s claims should be dismissed for failure to
substantially comply with Tennessee Code Annotated § 29-26-121(a)(2)(E). See Bray,
__ S.W.3d at __, 2017 WL 2856697, at *4. We remand this matter to the trial court for
further proceedings consistent with this opinion. Costs on appeal are taxed to the
appellee, Parkwest Medical Center.
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THOMAS R. FRIERSON, II, JUDGE
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