Foster v. Chiles, E2012-01780-SC-R11-CV

Decision Date27 January 2015
Docket NumberNo. E2012-01780-SC-R11-CV,E2012-01780-SC-R11-CV
Citation467 S.W.3d 911
PartiesSamuel E. Foster et al. v. Walter William Chiles, III, M.D. et al.
CourtTennessee Supreme Court

Stephen C. Daves, Knoxville, Tennessee, for the appellants, Walter William Chiles, III, M.D., and Knoxville Urology Clinic, P.C.

Edward G. White, II, and B. Chase Kibler, Knoxville, Tennessee, for the appellants, Gordon Lee Collins, M.D., and Anesthesia Medical Alliance of East Tennessee, P.C.

F. Michael Fitzpatrick and Rachel Park Hurt, Knoxville, Tennessee, for the appellants, Covenant Health and Parkwest Medical Center.

John D. Agee and Bradley D. Williams, Clinton, Tennessee, for the appellees, Samuel E. Foster and Mary Foster.

Opinion

Sharon G. Lee, C.J., delivered the opinion of the Court, in which Cornelia A. Clark, Jeffrey S. Bivin s, and Holly Kirby, JJ., joined. Gary R. Wade, J., filed a separate dissenting opinion.

OPINION

Sharon G. Lee, C.J.

This appeal presents two issues for review: 1) whether a person asserting a health care liability claim must give written notice of the claim to all potential health care defendants before re-filing a complaint, or whether notice given before filing the first complaint is sufficient notice for a subsequently filed complaint against the same defendants; and 2) if pre-suit notice is required for each complaint, whether the sanction for noncompliance is a dismissal with or without prejudice. The plaintiffs, before filing their health care liability complaint, gave the defendants written notice under Tenn.Code Ann. § 29–26–121(a)(1). Thereafter, the plaintiffs voluntarily dismissed their complaint. The plaintiffs re-filed their complaint but did not provide the defendants with notice before the re-filing. The trial court dismissed the complaint with prejudice for failure to comply with the notice requirement of Tenn.Code Ann. § 29–26–121(a)(1). The Court of Appeals reversed, holding that the plaintiffs had to give pre-suit notice only once and that pre-suit notice for the first complaint was sufficient for any subsequently filed complaints asserting the same claims against the same defendants. We hold that Tenn.Code Ann. § 29–26–121(a)(1) requires that plaintiffs notify prospective defendants of a forthcoming health care liability lawsuit before the filing of each complaint. The sanction for failure to comply with Tenn.Code Ann. § 29–26–121(a)(1) is a dismissal without prejudice.

I.

In November 2009, Samuel Foster received medical treatment from Dr. Walter William Chiles, III, Dr. Gordon Lee Collins, Knoxville Urology Clinic, Anesthesia Medical Alliance of East Tennessee, Covenant Health, and Parkwest Medical Center (Defendants). On November 18, 2010, pursuant to Tenn.Code Ann. § 29–26–121(a)(1), Mr. Foster, through counsel, notified Defendants of his intent to file a health care liability action against them. On March 17, 2011, Mr. Foster and his wife, Mary Foster, filed a health care liability complaint in Knox County Circuit Court against Defendants. On May 6, 2011, the Fosters voluntarily dismissed their case.

On May 4, 2012, the Fosters filed a new complaint in Knox County Circuit Court, raising the same claims against the same defendants.1 The complaint alleged that the notice requirements of Tenn.Code Ann. § 29–26–121(a) had been met, as shown by an affidavit attached to the complaint. However, neither an affidavit nor any proof of service of notice was attached to the complaint. The Fosters did not give Defendants pre-suit notice after dismissing the first complaint and before filing the second action.

Defendants moved to dismiss the complaint under Tenn. R. Civ. P. 12.02(6), based on the Fosters' failure to comply with Tenn.Code Ann. § 29–26–121(a)(1). Defendants asserted that § 29–26–121(a)(1) requires pre-suit notice to be given each time a complaint alleging health care liability is filed. Further, Defendants argued that the Fosters' failure to comply with § 29–26–121(a)(1) warranted a dismissal with prejudice. In response, the Fosters argued that they complied with the notice statute because they provided Defendants pre-suit notice before filing the first complaint and that the original notice was sufficient for any subsequently filed complaints.

The trial court granted Defendants' motions to dismiss, finding that Tenn.Code Ann. § 29–26–121(a)(1) requires plaintiffs who have voluntarily non-suited a health care liability action to provide notice to all defendants before re-filing the action. The trial court dismissed the complaint with prejudice.

The Court of Appeals reversed, holding that the Fosters had complied with Tenn.Code Ann. § 29–26–121(a)(1) by providing Defendants notice at least sixty days before filing their second complaint. The intermediate court reasoned that since the complaints were essentially identical, the plain language of § 29–26–121(a)(1) required only that Defendants be notified once. The Court of Appeals found that the Fosters' failure to attach to their complaint proof of service of notice under § 29–26–121(b) did not require dismissal and would have allowed the Fosters to late-file the required documentation.

We granted Defendants' application for permission to appeal to decide whether a person asserting a health care liability claim must give written notice of the claim to all potential health care defendants before each complaint is filed, or whether notice given before filing the first complaint is sufficient notice for a subsequently filed complaint against the same defendants. Further, if pre-suit notice is required for each complaint, we must determine whether the sanction for noncompliance is a dismissal with or without prejudice.

II.

We review the trial court's dismissal of the complaint in this case de novo with no presumption of correctness. Thurmond v. Mid–Cumberland Infectious Disease Consultants, PLC, 433 S.W.3d 512, 516 (Tenn.2014) (citing Myers v. AMISUB (SFH), Inc., 382 S.W.3d 300, 307 (Tenn.2012) ). In analyzing the legal sufficiency of the complaint, we must presume that all factual allegations in the complaint are true and construe them in favor of the plaintiff. Lind v. Beaman Dodge, Inc., 356 S.W.3d 889, 894 (Tenn.2011) (citing Stein v. Davidson Hotel Co., 945 S.W.2d 714, 716 (Tenn.1997) ). The issue of statutory construction involved in this appeal is also a question we review de novo, affording no presumption of correctness to the decisions of the lower courts. Womack v. Corr. Corp. of Am., 448 S.W.3d 362, 366–67 (Tenn.2014) (citing Baker v. State, 417 S.W.3d 428, 433 (Tenn.2013) ).

It is our duty to ascertain and fully effectuate the intent of the Legislature. Thurmond, 433 S.W.3d at 517 (citing Baker, 417 S.W.3d at 433 ). In doing so, we must take care not to broaden a statute beyond its intended scope or unduly restrict its coverage. Shore v. Maple Lane Farms, LLC, 411 S.W.3d 405, 420 (Tenn.2013) (citing State v. Strode, 232 S.W.3d 1, 9 (Tenn.2007) ). We are to construe statutes reasonably, to “avoid [ ] statutory conflict and provide[ ] for harmonious operation of the laws.” Baker, 417 S.W.3d at 433 (quoting Frye v. Blue Ridge Neuroscience Ctr., P.C., 70 S.W.3d 710, 716 (Tenn.2002) ).

Our construction of a statute must begin with the words the Legislature has chosen. Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 526 (Tenn.2010) (citing Waldschmidt v. Reassure Am. Life Ins. Co., 271 S.W.3d 173, 176 (Tenn.2008) ). We must presume that the General Assembly intended each word in a statute to have a specific purpose and meaning. Cunningham v. Williamson Cnty. Hosp. Dist., 405 S.W.3d 41, 44 (Tenn.2013) (citing State v. Hawk, 170 S.W.3d 547, 551 (Tenn.2005) ). If the statutory language is clear and unambiguous, we apply its plain meaning, understood in its normal and accepted usage, without a forced interpretation. Baker, 417 S.W.3d at 433 (quoting Carter v. Bell, 279 S.W.3d 560, 564 (Tenn.2009) ). Where statutory language is ambiguous, we may decipher legislative intent in other ways, including consideration of the broader statutory scheme, legislative history, and other sources. Thurmond, 433 S.W.3d at 517 (citing Mills v. Fulmarque, Inc., 360 S.W.3d 362, 368 (Tenn.2012) ).

III.
A.

Tenn.Code Ann. § 29–26–121(a)(1) provides for pre-suit notice as follows:

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.

Tenn.Code Ann. § 29–26–121(a)(1) (2012).

In Myers v. AMISUB (SFH), Inc., we held, based on the clear language of Tenn.Code Ann. § 29–26–121(a)(1), that the requirement of pre-suit notice is mandatory and not directory. 382 S.W.3d at 308–09. Strict compliance with the pre-suit notice provision is required; substantial compliance is not sufficient. Id. at 310. Myers involved a plaintiff who filed a health care liability action before Tenn.Code Ann. § 29–26–121(a)(1) became effective, non-suited the action, and then re-filed after the statute was in effect. Id. at 304. Before filing his second action, the plaintiff did not provide pre-suit notice to the health care defendants.2 Id. at 306. We held that the plaintiff was required to strictly comply with the statute and provide written pre-suit notice. Id. at 310. We noted that after the dismissal of the first suit, the filing of the second suit was the institution of a new and independent action, which required its own pre-suit notice to the defendants. Id. at 309.

We address a somewhat similar issue in this case—whether notice given before the filing of the first complaint is sufficient pre-suit notice for a suit that is re-filed after the dismissal of the first complaint. The Fosters argue that § 29–26–121(a)(1) requires that pre-suit notice be given at least sixty days before the filing of a complaint .”...

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