Sandra Kay Clary v. Deidra A. Miller

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
November 1, 2016 Session

SANDRA KAY CLARY v. DEIDRA A. MILLER, ET AL.

Appeal from the Circuit Court for Putnam County
No. 2016-CV-17 Jonathan L. Young, Judge
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No. M2016-00794-COA-R3-CV – Filed August 8, 2017
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This appeal concerns the dismissal of a health care liability action for noncompliance
with the Health Care Liability Act, specifically Tennessee Code Annotated § 29-26-121
(Supp. 2016). Before filing this action, the plaintiff gave timely written pre-suit notice of
her health care liability claim, including the required medical authorizations, to all
potential defendants. But when she filed her complaint, the plaintiff failed to provide
copies of the medical authorizations as required by statute. Both defendants filed
motions to dismiss based on the missing documents. The trial court determined that the
plaintiff had substantially complied with the statute and that the defendants were not
prejudiced by the omission. Even so, the court dismissed the complaint with prejudice
after concluding that strict compliance with the statute was required when the defendant
was a governmental entity. Upon review, we conclude that substantial compliance with
the documentation requirement in Tennessee Code Annotated § 29-26-121(b) is sufficient
even when the defendant is a governmental entity. Thus, we reverse the dismissal of the
complaint.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed

W. NEAL MCBRAYER, J., delivered the opinion of the court, in which ANDY J. BENNETT
and RICHARD H. DINKINS, JJ., joined.

Brandon J. Cox and Sarah J. Cripps, Smithville, Tennessee, for the appellant, Sandra Kay
Clary.

Cynthia A. Wilson, Cookeville, Tennessee, for the appellees, Deidra A. Miller, and
Cookeville Regional Medical Center Authority.
 OPINION

I.

On January 15, 2015, Sandra Kay Clary was admitted to the intensive care unit at
Cookeville Regional Medical Center (“CRMC”) with a diagnosis of “sepsis related to
community acquired pneumonia, acute renal failure, and hyponatremia.” According to
Ms. Clary, a nurse at CRMC, Deidra Miller, negligently administered a Lovenox
injection, causing complications that necessitated extensive medical treatment and
resulted in pain and suffering and permanent disfigurement.

On September 4, 2015, Ms. Clary provided written notice of her health care
liability claim to both CRMC and Ms. Miller, along with a HIPAA-compliant medical
authorization.1 See Tenn. Code Ann. § 29-26-121(a)(1) (2012). On January 20, 2016,
Ms. Clary filed this health care liability action against CRMC and Ms. Miller
(collectively, “Defendants”) in the Circuit Court for Putnam County, Tennessee. Ms.
Clary also submitted a certificate of good faith and an affidavit certifying that pre-suit
notice, including HIPAA-compliant medical authorizations, was served on Defendants as
required by statute. Id. §§ 29-26-121(a)(4), -122 (2012). Copies of the pre-suit notice
and proof of service were attached to the affidavit. Although HIPAA-compliant medical
authorizations were provided to Defendants with the pre-suit notice, copies of the
authorizations were not filed with the complaint.

Defendants challenged Ms. Clary’s compliance with the pre-suit notice statute by
filing Rule 12.02 motions to dismiss based on the omitted medical authorizations. Tenn.
R. Civ. P. 12.02(1). Ms. Clary filed the missing authorizations on March 23, 2016.

On April 7, 2016, the court dismissed the complaint with prejudice. The court
determined that Ms. Clary only substantially complied with the statute and that she failed
to demonstrate extraordinary cause for her noncompliance. The court found that
Defendants were not prejudiced by Ms. Clary’s substantial compliance, but held that
strict compliance was required because CRMC was a governmental entity.

II.

Ms. Clary contends that the trial court erred in dismissing her complaint with
prejudice in light of her substantial compliance with Tennessee Code Annotated § 29-26-

1
“HIPAA” refers to the Health Insurance Portability and Accountability Act of 1996, Pub. L. No.
104-191, 110 Stat. 1936 (codified as amended in scattered sections of 18, 26, 29, and 42 U.S.C.). HIPAA
prohibits the disclosure of protected health information without a written medical authorization that meets
specific requirements. 45 C.F.R. § 164.508(a)(1), (c)(1).
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121. “Every application of a text to particular circumstances entails interpretation.”
Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 53
(2012) (citing Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803)). Statutory
interpretation is a question of law, which we review de novo, with no presumption of
correctness. Davis ex rel. Davis v. Ibach, 465 S.W.3d 570, 573 (Tenn. 2015).

Our goal in statutory interpretation is to “ascertain and effectuate the legislature’s
intent.” Kite v. Kite, 22 S.W.3d 803, 805 (Tenn. 1997). When a statute’s language is
unambiguous, we derive legislative intent from the statute’s plain language. Carson
Creek Vacation Resorts, Inc. v. Dep’t of Revenue, 865 S.W.2d 1, 2 (Tenn. 1993). The
words used in the statute should be given their natural, ordinary meaning “in the context
in which they appear in the statute and in light of the statute’s general purpose.” Lee
Med., Inc. v. Beecher, 312 S.W.3d 515, 526 (Tenn. 2010). But, when a statute’s language
is subject to several interpretations, we also consider the broader statutory scheme, the
statute’s general purpose, and other sources to ascertain legislative intent. Wachovia
Bank of N.C., N.A. v. Johnson, 26 S.W.3d 621, 624 (Tenn. Ct. App. 2000).

A. HEALTH CARE LIABILITY ACT

The trial court dismissed Ms. Clary’s complaint based on her noncompliance with
the pre-suit notice statute, a requirement of the Health Care Liability Act (the “Act”). See
Tenn. Code Ann. §§ 29-26-101 to -122 (2012 & Supp. 2016). Tennessee Code
Annotated § 29-26-121(a)(1) requires any person with a potential health care liability
claim to provide pre-suit notice of the claim to all health care providers who could be
named as defendants. Id. § 29-26-121(a)(1).2 The notice shall include a “HIPAA
compliant medical authorization permitting the provider receiving the notice to obtain
complete medical records from each other provider being sent a notice.” Id. § 29-26-
121(a)(2)(E).3 The Act specifies that compliance with the pre-suit notice requirement can
be established by filing an affidavit with the complaint. Id. § 29-26-121(a)(3)(A). If the

2
Tennessee Code Annotated § 29-26-121(a)(1) provides: “[a]ny 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.”
3
In addition to the HIPPA compliant medical authorization, the pre-suit notice must include the
following:

(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; [and]
(D) A list of the name and address of all providers being sent a notice . . . .

Tenn. Code Ann. § 29-26-121(a)(2).
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pre-suit notice was sent by mail, the affidavit must be accompanied by a copy of the pre-
suit notice and a stamped certificate of mailing from the United States Postal Service. Id.
§ 29-26-121(a)(4).

In this case, we are solely concerned with the documentation requirement in
subsection (b), which specifies that a complaint asserting a claim for health care liability
must include the pre-suit notice required by subsection (a). Specifically, subsection (b)
provides as follows:

[T]he 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.

Id. § 29-26-121(b).4

CRMC argues that the requirement to provide copies of the medical authorizations
is mandatory because the Legislature used the commanding word “shall.” “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.’” Myers v. AMISUB (SFH), Inc., 382 S.W.3d 300, 309 (Tenn. 2012)
(quoting 3 Norman J. Singer & J.D. Singer, Statutes and Statutory Construction § 57:2
(7th ed. 2008)). In other words, if strict compliance with the provision at issue is
“essential to avoid prejudicing an opposing litigant,” we construe “shall” as mandatory.
Stevens ex rel. Stevens v. Hickman Cmty. Health Care Servs., Inc., 418 S.W.3d 547, 555
(Tenn. 2013); see also Presley v. Bennett, 860 S.W.2d 857, 860 (Tenn. 1993) (“In
general, when determining whether a procedural requirement of a statute is directory or
mandatory, the object is to ascertain the legislative intent by consideration of the entire
statute, including its nature and purpose, and the consequences that would result from a
construction one way or the other.”).

Our supreme court has concluded that providing pre-suit notice to potential
defendants is the “essence” of the statute and, thus, compliance with the pre-suit notice
requirement of subsection (a)(1) is mandatory. Myers, 382 S.W.3d at 309. Nothing short

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CRMC contends that Ms. Clary had to demonstrate extraordinary cause before the court could
consider her substantial compliance argument. We disagree. Once Defendants filed their motions to
dismiss, the burden shifted to Ms. Clary to show “either that [she] complied with the statute[] or that
[she] had extraordinary cause for failing to do so.” Myers v. AMISUB (SFH), Inc., 382 S.W.3d 300, 307
(Tenn. 2012) (emphasis added). Only if the trial court determines, based on the complaint and any other
evidence submitted by the parties, that the plaintiff did not comply with the statute does extraordinary
cause become relevant. Id. As we have concluded that Ms. Clary substantially complied with the statute,
the question of extraordinary cause is irrelevant.
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of strict compliance is acceptable. Id. But, in the absence of prejudice to the opposing
party, substantial compliance with other requirements in the statute is enough to avoid
dismissal of the complaint. See Arden v. Kozawa, 466 S.W.3d 758, 764 (Tenn. 2015)
(allowing substantial compliance with the statutorily prescribed method of service);
Thurmond v. Mid-Cumberland Infectious Disease Consultants, PLC, 433 S.W.3d 512,
520-21 (Tenn. 2014) (holding substantial compliance with the affidavit requirement was
sufficient); Stevens, 418 S.W.3d at 554-55 (holding that substantial compliance with
HIPAA content regulations for medical authorization could suffice).

The pre-suit notice statute has multiple requirements that “serve related yet
ultimately distinct goals.” Stevens, 418 S.W.3d at 554. The requirement to provide a
copy of the medical authorization with the complaint serves to confirm the content of the
document that was given to the potential defendants. See Travis v. Cookeville Reg’l Med.
Ctr., No. M2015-01989-COA-R3-CV, 2016 WL 5266554, at *7 (Tenn. Ct. App. Sept.
21, 2016) (observing that counsel’s inability to provide a copy of the medical
authorization sent to the potential defendants left the court unable to resolve the issue of
whether the authorization complied with the statute). Here, the content of the medical
authorizations is undisputed.

Consistent with our supreme court precedent, we conclude that the documentation
requirement of Tennessee Code Annotated § 29-26-121(b) is not mandatory, and
substantial compliance is sufficient. See Hunt v. Nair, No. E2014-01261-COA-R9-CV,
2015 WL 5657083, at *8 (Tenn. Ct. App. Sept. 25, 2015), perm. app. denied, (Tenn. Jan.
21, 2016) (holding substantial compliance with the documentation requirement was
sufficient when defendants were not prejudiced by plaintiff’s failure to attach copies of
the pre-suit notice and medical authorization to the complaint). Ms. Clary timely
provided HIPAA-compliant medical authorizations to Defendants with her pre-suit
notice, her notice was served in accordance with the statute, and the late-filed exhibits
were true and correct copies of the authorizations. Thus, strict compliance with the
documentation requirement is not essential to avoid prejudice to Defendants. See
Stevens, 418 S.W.3d at 554.

The record in this case supports the trial court’s finding that Ms. Clary
substantially complied with the documentation requirement. See id. at 556 (“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.”).
Ms. Clary satisfied all the statutory requirements except for filing copies of the medical
authorizations, and she rectified her mistake at an early stage. Defendants suffered no
prejudice from the filing delay because they received the authorizations with the pre-suit
notice. Allowing Ms. Clary to proceed under these circumstances promotes the judicial
goal of disposing of a case on its merits. See Childress v. Bennett, 816 S.W.2d 314, 316
(Tenn. 1991) (cautioning courts to be “reluctant to give effect to rules of procedure which
5
seem harsh and unfair, and which prevent a litigant from having a claim adjudicated upon
its merits”).

Our conclusion, however, does not resolve this appeal. We next address whether
strict compliance with Tennessee Code Annotated § 29-26-121 is required because
CRMC is a governmental entity.5

B. SOVEREIGN IMMUNITY

At common law, the doctrine of sovereign immunity protected governmental
entities from being sued without consent. Lucius v. City of Memphis, 925 S.W.2d 522,
525 (Tenn. 1996). This protection is preserved in our state constitution, which provides
that “[s]uits may be brought against the State in such manner and in such courts as the
Legislature may by law direct.” Tenn. Const. art. I, § 17. County and local governments,
as arms of the state, also enjoy sovereign immunity. Sneed v. City of Red Bank, 459
S.W.3d 17, 23-24 (Tenn. 2014).

With the passage of the Tennessee Governmental Tort Liability Act (“the
GTLA”), the Legislature reaffirmed and extended the doctrine of sovereign immunity for
counties, municipalities, and other local governmental agencies and then waived
immunity for injuries arising from specified circumstances. Tenn. Code Ann. §§ 29-20-
201 to -205 (2012); Sneed, 459 S.W.3d at 24-25; Hawks v. City of Westmoreland, 960
S.W.2d 10, 14 (Tenn. 1997). The GTLA specifically waives governmental immunity for
“injury proximately caused by a negligent act or omission of any employee within the
scope of his employment” except if the injury arises out of nine enumerated exceptions.
Tenn. Code Ann. § 29-20-205. A health care liability action against a governmental
entity falls within the waiver of governmental immunity in the GTLA. Cunningham v.
Williamson Cnty. Hosp. Dist., 405 S.W.3d 41, 42-43 (Tenn. 2013).

We construe statutes waiving governmental immunity strictly because they are in
derogation of the common law, and this “rule of construction has been expressly
incorporated” into the GTLA. Ezell v. Cockrell, 902 S.W.2d 394, 399 (Tenn. 1995);
Tenn. Code Ann. § 29-20-201(c) (“[A]ny claim for damages must be brought in strict
compliance with the terms of this chapter.”). Under this rule of construction, we will not
apply other statutes to vary or extend the GTLA in the absence of clear evidence that the
Legislature intended such a result. See Cunningham, 405 S.W.3d at 45-46 (holding that
the tolling provision of the Medical Malpractice Act, the precursor to the Health Care
Liability Act, could not be applied in actions against governmental entities); Lynn v. City
5
CRMC is a private act hospital operated by the City of Cookeville through the Cookeville
Regional Medical Center Authority and established under the authority of the Private Act Hospital
Authority Act of 1996. See Tenn. Code Ann. §§ 7-57-601 to -604 (2015). Ms. Miller is a governmental
employee. See Tenn. Code Ann. § 29-20-102(2) (Supp. 2016).

6
of Jackson, 63 S.W.3d 332, 337 (Tenn. 2001) (holding that the general savings statute
was inapplicable to GTLA claims).

But allowing substantial compliance with the documentation requirement under
the circumstances presented here does not conflict with our duty to strictly construe the
GTLA. “[G]overnmental entities may prescribe the terms and conditions under which
they consent to be sued, including when, in what forum, and in what manner suit may be
brought.” Cruse v. City of Columbia, 922 S.W.2d 492, 495 (Tenn. 1996) (citations
omitted). Even though we strictly construe the immunity waiver in the GTLA, when
faced with express legislative intent to apply the procedural requirements of another
statute to governmental entities, we must give effect to the legislative intent. Harper v.
Bradley Cty., 464 S.W.3d 615, 622-23 (Tenn. Ct. App. 2014). Strict construction should
never be used to “defeat the obvious intention of the legislature.” State v. Netto, 486
S.W.2d 725, 728 (Tenn. 1972).

Our courts have uniformly held that by including governmental entities within the
definitions of “health care liability action” and “health care provider,” the Legislature
clearly expressed its intent for the “procedural requirements and the corresponding
benefits” of the Act to apply to claims against governmental entities. 6 Wade v. Jackson-
Madison Cty. Gen. Hosp. Dist., 469 S.W.3d 54, 62 (Tenn. Ct. App. 2015), perm. app.
denied, (Tenn. May 19, 2015); see also Banks v. Bordeaux Long Term Care, 465 S.W.3d
141, 146 (Tenn. Ct. App. 2014); Harper, 464 S.W.3d at 620-21. Contrary to CRMC’s
position, we find no indication in the Act that the Legislature intended for courts to apply
its provisions differently based on whether the health care provider was a governmental
entity or not. The inclusion of governmental entities in the Act’s definitions supports the
proposition that governmental health care providers are to be treated the same as non-
governmental ones. Wade, 469 S.W.3d at 62; see also Doyle v. Frost, 49 S.W.3d 853,
859-60 (Tenn. 2001) (indicating that an amendment to the comparative fault joinder
statute to provide that it applied to suits involving governmental entities was sufficient
evidence of legislative intent to treat governmental entities just like other parties for
purposes of joinder). Thus, we conclude that the Act should be applied uniformly to all
health care providers even when the defendant is a governmental entity.7

6
“Health care liability action” is defined to include claims “against the state or a political
subdivision thereof, alleging that a health care provider or providers have caused an injury related to the
provision of, or failure to provide, health care services to a person, regardless of the theory of liability on
which the action is based.” Tenn. Code Ann. § 29-26-101(a)(1). The Act also defines “health care
provider” to include “those physicians and nurses employed by a governmental health facility.” Id. § 29-
26-101(a)(2)(D).
7
Although inapplicable here, we note that “no provision of [the Act] shall apply to claims against
the state to the extent that such provision is inconsistent with or conflicts with the Tennessee Claims
Commission Act[.]” Tenn. Code Ann. § 29-26-101(c).
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 III.

For the foregoing reasons, we reverse the decision of the circuit court dismissing
the complaint with prejudice and remand for further proceedings consistent with this
opinion.

_________________________________
W. NEAL MCBRAYER, JUDGE

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