Estate of Vickers v. Diversicare Leasing Corp.

• Decision Date: 13 June 2022
• Docket Number: M2021-00894-COA-R3-CV
• Parties: ESTATE OF JENNIFER DIANE VICKERS v. DIVERSICARE LEASING CORPORATION ET AL.
• Court: Tennessee Court of Appeals

ESTATE OF JENNIFER DIANE VICKERS
v.
DIVERSICARE LEASING CORPORATION ET AL.

No. M2021-00894-COA-R3-CV

Court of Appeals of Tennessee, Nashville

June 13, 2022

Session April 5, 2022

Appeal from the Circuit Court for Rutherford County No. 73909 Bonita Jo Atwood, Judge

A nursing home resident commenced this health care liability action after she had 18 teeth extracted, after which she suffered excessive bleeding. Before suing, the plaintiff's daughter, acting as her mother's attorney in fact, provided each prospective defendant with a form that purported to authorize the release of the plaintiff's health information as required by Tennessee Code Annotated § 29-26-121(a)(1). Four months later, the plaintiff filed her complaint and a certificate of good faith as required by § 29-26-122(a). The defendants responded by moving to dismiss the complaint, arguing that the pre-suit authorizations were invalid because the daughter lacked the authority to make "health care decisions" for the plaintiff. The trial court denied the motions, finding the general power of attorney authorized the daughter to release the plaintiff's medical records. After the plaintiff filed an amended complaint to add a claim for lack of informed consent, the defendants moved to dismiss all claims set forth in the amended complaint based on the plaintiff's failure to file a new certificate of good faith. The plaintiff argued that a new certificate was unnecessary; nevertheless, she moved for an extension of time to comply. Following a hearing, the court found that a new certificate of good faith was required by § 29-26-122(a) because the amended complaint asserted a new claim. The court also denied the plaintiff's motion for an extension of time to comply on the ground that the plaintiff failed to establish "extraordinary cause" to justify an extension. Based on these findings, the court granted the defendants' motions to dismiss all claims. This appeal followed. We agree that a new certificate of good faith was required; however, we find that the trial court applied an incorrect legal standard to deny the motion for an extension of time in which to comply. This is because the standard applicable to a motion for an extension of time to comply is "good cause," not "extraordinary cause," and good cause is a less exacting standard than extraordinary cause. See Stovall v. UHS Lakeside, LLC, No. W2013-01504-COA-R9-CV, 2014 WL 2155345, at *12 (Tenn. Ct. App. Apr. 22, 2014) (citations omitted), overruled on other grounds by Davis ex rel. Davis v. Ibach, 465 S.W.3d 570 (Tenn. 2015). Accordingly, this issue, along with the trial court's decision to dismiss the entire amended complaint, are vacated and remanded for further consideration by the trial

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court. As a result, we affirm in part, vacate in part, and remand for further proceedings consistent with this opinion.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed in Part, Vacated in Part, and Remanded

Luvell L. Glanton, Nashville, Tennessee, for the appellant, Estate of Jennifer Diane Vickers.

Joshua C. Cumby and F. Laurens Brock, Nashville, Tennessee, and Donna L. Boyce, Memphis, Tennessee, for the appellee, Diversicare Leasing Corporation.

David E. Harvey, Nashville, Tennessee, for the appellee, OneCare Dental Solutions, LLC.

Kara G. Bidstrup, Karl M. Braun, and Rod C. Watson, Nashville, Tennessee, for the appellee, Paul H. Straughn.

Frank G. Clement Jr., P.J., M.S., delivered the opinion of the Court, in which Andy D. Bennett and W. Neal McBrayer, JJ., joined.

OPINION

FRANK G. CLEMENT JR., P.J., M.S.

Facts and Procedural Background

In October 2016, Jennifer Diane Vickers ("Plaintiff") received emergency dental services from Dr. Paul Straughn at a nursing home operated by Diversicare Leasing Corp. d/b/a Diversicare of Smyrna. Unbeknownst to Dr. Straughn, Plaintiff was on blood thinners at the time of the procedure. After Dr. Straughn extracted 18 teeth, Plaintiff began to bleed heavily and was taken to a nearby emergency room. She was released the next day.

Eleven months later, Plaintiff sent pre-suit notice letters to Dr. Straughn, Diversicare, and the company that arranged for Dr. Straughn's visit, OneCare Dental Solutions, LLC (collectively, "Defendants"). Each letter included several forms that purported to authorize the release of Plaintiff's medical records to and from the other defendants. The forms were signed by Plaintiff's daughter, Constance Lynn Bennett, as Plaintiff's attorney in fact. Plaintiff also provided each defendant with a copy of Ms. Bennett's general power of attorney.

Four months later, Plaintiff commenced this action by filing a complaint in the Rutherford County Circuit Court.^[1] The complaint asserted negligence claims against all

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three defendants, and it asserted additional claims against Diversicare for breach of contract, breach of fiduciary duty, and violation of the Tennessee Adult Protection Act, Tennessee Code Annotated §§ 71-6-101 to -126. Along with the complaint, Plaintiff's attorney filed a certificate of good faith in which he stated that he consulted one or more experts who provided signed written statements confirming that there was "a good faith basis to maintain the action consistent with the requirements of Tennessee Code Annotated § 29-26-115."

Defendants then moved to dismiss the complaint based on Plaintiff's alleged failure to comply with Tennessee Code Annotated § 29-26-121(a)(1), which requires plaintiffs to provide potential defendants with medical record release forms that comply with the Health Insurance Portability and Accountability Act of 1998 ("HIPAA"). Defendants argued that the forms they received were invalid because they were signed by Plaintiff's daughter, Ms. Bennett, and Ms. Bennett's general power of attorney did not include the authority to make "health care decisions" for Plaintiff unless Plaintiff was incapacitated. The trial court denied the motions, finding that the power of attorney authorized Ms. Bennett to release Plaintiff's medical records.

After the parties conducted discovery, Defendants moved for summary judgment based on Plaintiff's lack of expert proof. In response, Plaintiff produced the affidavit of Dr. Dean DeLuke, DDS, who stated that he was familiar with the applicable standards of care and believed that Dr. Straughn and OneCare's conduct fell below those standards. Dr. DeLuke also believed that Dr. Straughn and OneCare's acts and omissions proximately caused Plaintiff's injuries. In particular, Dr. DeLuke's opinion was that Dr. Straughn deviated from the acceptable standards by failing to inform Plaintiff about the risk of extracting her teeth while she was on blood thinners.

Plaintiff then amended her complaint to add a claim for lack of informed consent and restate all negligence claims against each defendant as well as claims for breach of contract and breach of fiduciary duty against Diversicare.^[2] Plaintiff did not, however, file a new certificate of good faith with the amended complaint. Instead, she incorporated by reference the certificate attached to the original complaint:

8. Pursuant to T.C.A. § 29-26-122, Plaintiff's counsel has previously attached a Certificate of Good Faith to the Complaint. (See attached Exhibit "2").^[3]

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Defendants then moved to dismiss the amended complaint, asserting that § 29-26-122(a) required Plaintiff to file a new certificate. In response, Plaintiff maintained that a new certificate was unnecessary because she had provided Defendants with an assurance that there was a good faith basis for maintaining the action by filing the original certificate of good faith. Plaintiff also argued that she had substantially complied with § 29-26-122(a) because Dr. DeLuke's affidavit provided Defendants with notice that there was a good faith basis for her new informed consent claim. In the alternative, Plaintiff moved for an extension of time to file a new certificate under Tennessee Code Annotated § 29-26-122(c). Plaintiff also argued that there was "good cause" for granting the extension because it was unclear whether § 29-26-122(a) applied to amended complaints, and Defendants knew that there was a good faith basis for every claim asserted in the amended complaint.

At the hearing on Defendants' motions to dismiss, the trial court held that § 29-26-122(a) required Plaintiff to file a new certificate of good faith because her amended complaint added a new "cause of action." The court also held that Plaintiff could not rely on Dr. DeLuke's affidavit because § 29-16-122(a) requires strict compliance. The court then denied Plaintiff's motion for an extension of time, reasoning that Plaintiff failed to show "extraordinary cause" for her failure to comply.

The trial court also asked the parties whether the court had to dismiss the entire complaint or just the new claim for lack of informed consent. Plaintiff contended that dismissal of only the new claim was necessary because the original certificate of good faith supported the other claims. But Defendants argued that dismissal of the entire amended complaint was necessary because the amended complaint superseded and destroyed the original. The trial court agreed with Defendants and announced that it was dismissing the entire amended complaint.

Plaintiff then filed a motion to alter or amend the judgment under Tennessee Rule of Civil Procedure 59.04, which the trial court denied. This appeal followed.

Issues

Plaintiff raises five issues on appeal:

1. Was the trial court correct in ruling that every amended complaint in a health care liability action needs to be accompanied by a new certificate of good faith even when all of the claims in the original complaint have been brought forward into the amended complaint except a claim of lack of informed consent which was added to the amended complaint

2.

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