Stevens ex rel. Stevens v. Hickman Cmty. Health Care Servs., Inc.

• Decision Date: 25 November 2013
• Docket Number: No. M2012–00582–SC–S09–CV.,M2012–00582–SC–S09–CV.
• Citation: 418 S.W.3d 547
• Parties: Christine STEVENS ex rel. Mark STEVENS v. HICKMAN COMMUNITY HEALTH CARE SERVICES, INC. et al.
• Court: Tennessee Supreme Court

418 S.W.3d 547

Christine STEVENS ex rel. Mark STEVENS
v.
HICKMAN COMMUNITY HEALTH CARE SERVICES, INC. et al.

No. M2012–00582–SC–S09–CV.

Supreme Court of Tennessee,
at Nashville.

May 30, 2013 Session.
Nov. 25, 2013.

[418 S.W.3d 551]

Joshua L. Hunter and Kara Beth Hunter, Nashville, Tennessee, for the appellant, Estate of Halford Whitaker, M.D.

C. Bennett Harrison, Jr. and Brian W. Holmes, Nashville, Tennessee, for the appellee, Hickman Community Health Care Services, Inc. d/b/a Hickman Community Hospital.

Richard D. Piliponis and Michael Reed Griffin, Nashville, Tennessee, for the appellee, Christine Stevens, Next of Kin of Mark Stevens, deceased, and on behalf of the wrongful death beneficiaries of Mark Stevens.

OPINION SHARON G. LEE, J., delivered the opinion of the Court, in which CORNELIA A. CLARK and WILLIAM C. KOCH, JR., JJ., joined. GARY R. WADE, C.J., and JANICE M. HOLDER, J., filed a separate concurring and dissenting opinion.

SHARON G. LEE, J.

More than sixty days before filing suit, the plaintiff gave written notice to the potential defendants of her healthcare liability claim against them. Tenn.Code Ann. § 29–26–121(a)(2)(E) (2012) requires that a plaintiff's pre-suit notice include a HIPAA compliant medical authorization that permits the healthcare provider receiving the notice to obtain complete medical records from every other provider that is being sent a notice. Contrary to the statute, the plaintiff provided a non-HIPAA compliant medical authorization that only permitted the release of medical records to plaintiff's counsel. After the plaintiff filed suit, the defendants moved to dismiss the complaint based on noncompliance with Tenn.Code Ann. § 29–26–121(a)(2)(E). The trial court denied the motion, ruling that plaintiff's noncompliance was excused by extraordinary cause. We hold that the plaintiff was required to substantially comply with Tenn.Code Ann. § 29–26–121(a)(2)(E) and failed to do so, and that her failure to

[418 S.W.3d 552]

comply is not excused by extraordinary cause. We dismiss the plaintiff's case without prejudice.

I.

On May 27, 2010, Mark Stevens went to the Hickman Community Hospital emergency room complaining of fever, weakness, increased respiratory effort, rapid breathing, wheezing, sore throat, and a toothache. He was diagnosed with a peritonsillar abscess and fever, prescribed medication, and sent home. Two days later, Mr. Stevens returned to the emergency room and was treated by Dr. Halford Whitaker, who ordered a computed tomography scan of Mr. Stevens' head. The scan was normal, and Dr. Whitaker prescribed oxycodone and discharged Mr. Stevens. On June 1, 2010, Mr. Stevens went to the emergency room at Horizon Medical Center. He was admitted to the hospital and diagnosed with septic shock, respiratory failure, pneumonia, renal failure, and multi-system organ failure. His condition worsened, and he was transferred to Centennial Medical Center in Nashville, where he died on August 20, 2010. ¹

On April 11, 2011, pursuant to Tenn.Code Ann. § 29–26–121(a), counsel for Mr. Stevens' widow and next of kin (“Plaintiff”) sent letters to Dr. Whitaker, Hickman Community Health Care Services, Inc., Hickman Community Hospital, and Elite Emergency Services, LLC, notifying them of a potential healthcare liability claim arising out of their care and treatment of Mr. Stevens. The notice letters requested Mr. Stevens' medical records from each provider, and included a medical authorization that permitted the release of Mr. Stevens' medical records to Plaintiff's counsel. The medical authorization failed to authorize each medical provider receiving the notice to obtain Mr. Stevens' records from each other. The medical authorization also failed to provide Mr. Stevens' name, date of birth, the individuals or organizations authorized to disclose medical records, and the type of information to be used or disclosed.

On September 13, 2011, Plaintiff filed a healthcare liability suit against Hickman Community Health Care Services, Inc., doing business as Hickman Community Hospital; Elite Emergency Services, LLC; and Halford Whitaker, M.D. ² (“Defendants”) in the Circuit Court for Hickman County.³ In her complaint, Plaintiff averred that she had complied with the pre-suit notice requirement of Tenn.Code Ann. § 29–26–121(a). Plaintiff also filed a certificate of good faith with her complaint pursuant to Tenn.Code Ann. § 29–26–122 (Supp.2011).

In November of 2011, Defendants each moved to dismiss, arguing that they did not receive proper pre-suit notice as required by Tenn.Code Ann. § 29–26–121(a), specifically § 29–26–121(a)(2)(E), and that

[418 S.W.3d 553]

Plaintiff's noncompliance was not excused by extraordinary cause.

Following a hearing, the trial court denied Defendants' motions to dismiss, ruling that the requirements of Tenn.Code Ann. § 29–26–121(a)(2)(E) were neither preempted by HIPAA ⁴ nor in conflict with Tennessee law. The trial court also found that Plaintiff's failure to comply with the requirements of Tenn.Code Ann. § 29–26–121(a)(2)(E) was excused by extraordinary cause. In reaching this finding, the trial court explained that it could not order Plaintiff's compliance with Tenn.Code Ann. § 29–26–121(a)(2)(E) because Mr. Stevens was deceased, and noted further that Plaintiff had given Defendants notice of the suit and filed a certificate of good faith.

The trial court granted the Defendants' request for an interlocutory appeal, but the Court of Appeals denied the request. Dr. Whitaker filed an application for permission to appeal. We granted the application and review the following issues: whether Plaintiff is required to strictly or substantially comply with the requirements of Tenn.Code Ann. § 29–26–121(a)(2)(E); whether Plaintiff complied with Tenn.Code Ann. § 29–26–121(a)(2)(E); if Plaintiff failed to comply, whether Plaintiff's failure is excused by extraordinary cause; and the consequences of Plaintiff's failure to comply if not excused.

To resolve these issues, we must interpret the meaning of various provisions of Tenn.Code Ann. § 29–26–121. Statutory interpretation is a question of law, which we review de novo. Pratcher v. Methodist Healthcare Memphis Hospitals, 407 S.W.3d 727, 734 (Tenn.2013). When interpreting a statute, our role is to ascertain and effectuate the legislature's intent. Sullivan ex rel. Hightower v. Edwards Oil Co., 141 S.W.3d 544, 547 (Tenn.2004). We must not broaden or restrict a statute's intended meaning. Garrison v. Bickford, 377 S.W.3d 659, 663 (Tenn.2012) (quoting U.S. Bank, N A. v. Tenn. Farmers Mut. Ins. Co., 277 S.W.3d 381, 386 (Tenn.2009)). We also presume that the legislature intended to give each word of the statute its full effect. In re Estate of Trigg, 368 S.W.3d 483, 490 (Tenn.2012). When statutory language is unambiguous, we accord the language its plain meaning and ordinary usage. Glassman, Edwards, Wyatt, Tuttle & Cox, P.C. v. Wade, 404 S.W.3d 464, 467 (Tenn.2013). Where the statutory language is ambiguous, however, we consider the overall statutory scheme, the legislative history, and other sources. Mills v. Fulmarque, Inc., 360 S.W.3d 362, 368 (Tenn.2012); Colonial Pipeline Co. v. Morgan, 263 S.W.3d 827, 836 (Tenn.2008). The trial court's denial of Defendants' motions to dismiss involves a question of law, and, therefore, our review is de novo with no presumption of correctness. Graham v. Caples, 325 S.W.3d 578, 581 (Tenn.2010). Whether Plaintiff demonstrated extraordinary cause that would excuse compliance with the notice statute is a mixed question of law and fact, and our review is de novo with a presumption of correctness applying only to the trial court's findings of fact and not to the legal effect of those findings. Starr v. Hill, 353 S.W.3d 478, 481–82 (Tenn.2011) (quoting Abdur'Rahman v. Bredesen, 181 S.W.3d 292, 305 (Tenn.2005)). The trial court's decision to excuse compliance is reviewed under an abuse of discretion standard. Myers v. AMISUB (SFH), Inc., 382 S.W.3d 300, 308 (Tenn.2012). A court abuses its discretion when it applies an incorrect legal standard, its

[418 S.W.3d 554]

decision is illogical or unreasonable, its decision is based on a clearly erroneous assessment of the evidence, or the decision uses reasoning that works an injustice on the complaining party. Wright ex rel. Wright v. Wright, 337 S.W.3d 166, 176 (Tenn.2011) (quoting Konvalinka v. Chattanooga–Hamilton Cnty. Hosp. Auth., 249 S.W.3d 346, 358 (Tenn.2008)).

II. A.

To decide whether Plaintiff complied with the requirements of Tenn.Code Ann. § 29–26–121(a)(2)(E), we must first determine whether Plaintiff was required to strictly or substantially comply with this subsection of the statute.⁵

Tenn.Code Ann. § 29–26–121(a) establishes six separate requirements that serve related yet ultimately distinct goals. First, Tenn.Code Ann. § 29–26–121(a)(1) contains an express notice requirement that requires plaintiffs to give defendants written notice that a potential healthcare liability claim may be forthcoming. In contrast, Tenn.Code Ann. §§ 29–26–121(a)(2)(A)–(C) facilitate early resolution of healthcare liability claims by requiring plaintiffs to advise defendants who the plaintiff is, how to reach him or her, and how to contact his or her attorney. Lastly, the requirements of Tenn.Code Ann. § 29–26–121(a)(2)(D) and Tenn.Code Ann. § 29–26–121(a)(2)(E) serve an investigatory function, equipping defendants with the actual means to evaluate the substantive merits of a plaintiff's claim by enabling early discovery of potential co-defendants and early access to a plaintiff's medical records.

The plain language of Tenn.Code Ann. § 29–26–121(a)(2) provides that each of the aforementioned requirements “shall” be included in a plaintiff's written notice to potential defendants. In Myers, we held that “[t]o 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...