Melissa Martin v. Rolling Hills Hospital, LLCMelissa Martin v. Rolling Hills Hospital, LLC
We
Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Appeals Vacated; Judgment of the Circuit Court Reinstated
CORNELIA A. CLARK, J., delivered the opinion of the Court, in which JEFFREY S. BIVINS, C.J., and SHARON G. LEE, and ROGER A. PAGE, JJ., joined. HOLLY KIRBY, J., filed an opinion concurring in part and dissenting in part.
Edward A. Hadley, Linda A. Nathanson, and Matthew J. Buchbinder, Nashville, Tennessee, for the appellant, Matthew Karl, M.D.
Ashley D. Cleek and Brandon J. Stout, Jackson, Tennessee, for the appellants, Rolling Hills Hospital, LLC, and Universal Health Services, Inc.
Trudy Bloodworth, Nashville, Tennessee; and Dawn M. Smith, Dallas, Texas (pro hac vice), for the appellees, Melissa Martin, on behalf of herself and minor children C.H., A.H., Jr., wrongful death beneficiaries of Chelsey Elizabeth Kay Helwig, deceased, and James Harrison.
W. Bryan Smith, Memphis, Tennessee; John Vail, Washington, D.C.; and Brian G. Brooks, Greenbriar, Arkansas, for Amicus Curiae Tennessee Trial Lawyers Association.
Christopher A. Vrettos, Nashville, Tennessee, for Amicus Curiae Tennessee Defense Lawyers Association.
OPINION
I. Factual and Procedural Background1
On June 25, 2013, twenty-three-year-old Chelsey Elizabeth Kay Helwig (“Ms. Helwig” or “decedent“) presented to Skyline Medical Center complaining of suicidal ideation and depressive disorder. After an examination, she was transferred to Rolling Hills Hospital, LLC (“Rolling Hills“), a mental health facility. On June 26, 2013, she was admitted to Rolling Hills for specialized in-patient psychiatric care for suicidal ideation and detoxification from opiates, benzodiazepines, alcohol, and cocaine. Dr. Matthew Karl (“Dr. Karl“), who specialized in psychiatric medicine and provided care and treatment to patients at Rolling Hills, evaluated Ms. Helwig and prescribed medications for her. On the morning of June 28, 2013, Rolling Hills’ staff discovered Ms. Helwig unresponsive in her hospital room. They bеgan CPR and called 9-1-1. Emergency personnel arrived a short time later and transferred her to Williamson Medical Center. Subsequently, Ms. Helwig was transferred to Vanderbilt Medical Center, where she died later that day.
On October 17, 2014, the decedent‘s mother, Melissa Martin, and her father, James Harrison, filed a health care liability action. They sued in their individual capacities, and the decedent‘s mother also sued on behalf of the decedent‘s estate and the decedent‘s two minor children (collectively “the Plaintiffs“). The Plaintiffs named as defendants Rolling Hills, Dr. Karl, and Universal Health Services, Inc. (“UHS“), the parent company that owned, managed, controlled, and/or operated Rolling Hills (collectively “the Defendants“). The Plaintiffs alleged that the Defendants were negligent in their evaluation, treatment, monitoring, and care of the decedent and that their negligence caused her death.
As with any health care liability lawsuit, the Plаintiffs were required to provide the Defendants with written pre-suit notice at least sixty days before filing their health care liability action. See
The Plaintiffs first attempted to provide Dr. Karl with pre-suit notice several months later, on June 20, 2014. As with the Hospital Defendants, the Plaintiffs sent Dr. Karl a letter notifying him of their
As already noted, the document the Plaintiffs included with their October 2013 pre-suit notice letters to the Hospital Defendants did not list Dr. Karl as a provider who would be named as a defendant. Additionally, prior to filing the lawsuit, the Plaintiffs never informed the Hospital Defendants that they had sent Dr. Karl a pre-suit notice letter. Nor did the Plaintiffs ever send the Hospital Defendants a medical authorization permitting them to obtain the decedent‘s medical records from Dr. Karl.
After the Plaintiffs filed their lawsuit in October 2014, the Defendants objected that the Plaintiffs had failed to provide pre-suit notice in compliance with Section 121.2 However, before the trial court ruled on the matter, the Plaintiffs voluntarily nonsuited their lawsuit.
Less than a year later, on January 7, 2016, the Plaintiffs filed a second lawsuit alleging the same health care liability claims against the Defendants. To establish the timeliness of this second lawsuit, the Plaintiffs relied on the savings statute, which provides:
If the [original] action is commenced within the time limited by a rule or statute of limitation, but the judgment or decree is rendered against the plaintiff upon any ground not concluding the plaintiff‘s right of action, or where the judgment or decree is rendered in favor of the plaintiff, and is arrested, or reversed on appeal, the plaintiff, or the plaintiff‘s representatives and privies, as the case may be, may, from time to time, commence a new action within one (1) year after the reversal or arrest.
On January 28, 2016, the Hospital Defendants filed a joint motion to dismiss the second lawsuit as time-barred. The Hospital Defendants acknowledged that the Plaintiffs filed the first lawsuit within 120 days of the expiration of the statute of limitations and that the first lawsuit would havе been timely had the Plaintiffs provided
In March 2016, Dr. Karl filed his own motion to dismiss in which he joined the Hospital Defendants’ motion to dismiss and adopted their arguments.5 In addition, Dr. Karl asserted that he had attempted to use the medical authorization the Plaintiffs provided “to obtain [Rolling Hills‘] records pertaining to the decedent[,]” but “[t]he hospital [had] declined to produce the records because of the defective authorization.” Dr. Karl argued that the Plaintiffs’ noncompliance thus deprived him of “the opportunity to evaluate the medical records and the merits of the [Plaintiffs‘] claim prior to suit being filed.”
In separate responses to the motions to dismiss, the Plaintiffs argued that they had substantially complied with the pre-suit notice requirements of Section 121 and that any noncompliance had not prejudiced the Defendants. The Plaintiffs did not rely upon or attempt to establish that extraordinary cause excused their noncompliance. As to prejudice, the Plaintiffs did not submit affidavits but merely argued in their responses to the motions that they had engaged in settlement negotiations with the Hospital Defendants from April to June 2014, and that these negotiations “equipped [the Hospital Defendants] with the means to evaluate the substantive merits of [the Plaintiffs‘] claims by early discovery and early access to [the decedent‘s] medical records.” The Plaintiffs stated that the Hospital Defendants called Dr. Karl‘s conduct into question during the settlement negotiations, so the Hospital Defendants clearly were aware that Dr. Karl wаs a potential defendant. The Plaintiffs also argued without relying upon any affidavit or defense admission that the Hospital Defendants were not prejudiced by any deficiencies in the pre-suit notice relating to Dr. Karl because he was an employee or agent of Rolling Hills and had no relevant medical records aside from those the Hospital Defendants already had in their possession.
The Court of Appeals reversed. Martin v. Rolling Hills Hosp., LLC, No. M2016-02214-COA-R3-CV, 2018 WL 3097231, at *9 (Tenn. Ct. App. June 22, 2018), perm. app. granted (Tenn. Nov. 16, 2018). The intermediate appellate court commented that the trial court “[had] not explain[ed] its conclusion that the authorizations were ‘useless’ or reach[ed] the question of whether Defendants were prejudiced by Plaintiffs’ errors.” Id. at *8. Addressing Dr. Karl‘s “attempt[] to use the authorizations to оbtain records,” id. at *8, the Court of Appeals observed that the letters exchanged between counsel for Dr. Karl and Rolling Hills did not “reflect a good faith attempt on the part of Defendants to secure the records,” but instead showed “an effort by their counsel to establish a record upon which to present this argument[,]” id. at *8 n.7. The Court of Appeals determined that the Defendants had not shown prejudice because Dr. Karl was an “employee and/or ostensible agent” of Rolling Hills, and UHS was “merely a
This Court granted the Defendants’ applications for permission to appeal and directed the parties to address:
- the proper role of prejudice in the substantial compliance analysis and determination; and
- the proper burden of production and/or proof with respect to the presence or absence of prejudice for purposes of the substantial compliance analysis and determination, including whether or not the Court should consider the adoption of a rebuttable presumption of prejudice where the pre-suit notice is not accompanied by a medical authorization which is facially compliant with HIPAA.
Martin v. Rolling Hills Hospital, No. M2016-02214-SC-R11-CV (Tenn. Nov. 16, 2018) (Order) (granting applications for permission to appeal).
II. Standard of Review
The Defendants filed motions to dismiss under Rule 12.02(6) of the Tennessee Rules of Civil Procedure, arguing that the lawsuit is time-barred by the one-year stаtute of limitations because the savings statute does not apply. A Rule 12.02(6) motion is an appropriate means of invoking the statute of limitations as a ground for dismissing a complaint. Redwing v. Catholic Bishop for Diocese of Memphis, 363 S.W.3d 436, 455 n.11 (Tenn. 2012). The Defendants’ statute of limitations argument is also premised on the assertion that the Plaintiffs’ first lawsuit was not timely filed because the Plaintiffs failed to provide pre-suit notice substantially compliant with Section 121. Rule 12.02(6) is the proper vehicle for challenging a plaintiff‘s compliance with the pre-suit notice requirements of Section 121. Myers, 382 S.W.3d at 307. However, because the Defendants submitted matters outside the pleadings in support of their 120.02(6) motions, the motions “shall be treated as [motions] for summary judgment . . . .”
“[W]hether [Plaintiffs] ha[ve] demonstrated extraordinary cause that would excuse compliance with [Section 121] is a mixed question of law and fact, and our review of that determination 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.” Myers, 382 S.W.3d at 307. Additionally, issues of statutory construction are questions of law, to which de novo review applies, with no presumption of correctness
III. Analysis
At least sixty days before filing a complaint alleging a health care liability claim, a plaintiff in Tennessee must give written notice of the claim to each health care provider that will be named as a defendant in the lawsuit.
Section 121(a)(2) defines the information—the content—that a plaintiff must include in the pre-suit notice:
The notice shall include:
(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[s] аnd address[es] 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.
This Court has explained the distinct but interdependent purposes Sectiоn 121 serves, stating that it “ensures that a plaintiff give[s] timely notice to a potential defendant of a health care liability claim so it can investigate the merits of the claim and pursue settlement negotiations before the start of the litigation.” Runions, 549 S.W.3d at 86 (citing Foster v. Chiles, 467 S.W.3d 911, 915 (Tenn. 2015)). “Pre-suit notice benefits the parties by promoting early resolution of claims, which also serves the interest of judicial economy.” Id. (citing Foster, 467 S.W.3d at 915). The first three content requirements of Section 121(a)(2) “facilitate early resolution of healthcare liability claims by requiring
With these principles in mind, we rеturn to the dispositive issue in this appeal: whether the Plaintiffs substantially complied with Section 121(a)(2) before filing their first lawsuit. Stevens ex rel. Stevens v. Hickman Community Health Care Services, Inc., provides the framework for our analysis of this issue. In Stevens, the plaintiff failed to provide 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. at 555 (quoting
(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.
Id. at 555-56 (quoting
Applying that analysis, we noted that the plaintiff in Stevens had conceded that her medical authorization provided “‘very little benefit‘” to the defendants and failed to comply with HIPAA. Id. This Court agreed and pointed out that the plaintiff‘s mеdical authorization failed to satisfy at
lacked a description of the medical information to be disclosed,
45 C.F.R. § 164.508(c)(1)(i) ; failed to state the individuals or organizations authorized to disclose the . . . medical records,45 C.F.R. § 164.508(c)(1)(ii) ; and failed to specify the type of information authorized to be used or disclosed,45 C.F.R. § 164.508(c)(1)(iv) .
Id. We thus concluded that the medical authorization the Stevens plaintiff provided “was woefully deficient,” had “numerous and significant” errors and omissions, and that, because of these deficiencies, the “[d]efendants were not authorized to receive any of the Plaintiff‘s records.” Id. Nevertheless, we cautioned that “[a] plaintiff‘s less-than-perfect compliance with [Section 121(a)(2)(E)]” will not always “derail a healthcare liability claim” because “[n]on-substantive errors and omissions will not always prejudice defendants by preventing them from obtaining a plaintiff‘s relevant medical rеcords.”7 Id. at 555. But we concluded that, “[a]s a result of multiple errors,” the Stevens plaintiff “failed to substantially comply with the requirements of [Section 121(a)(2)(E)].” Id. at 556.
Tennessee courts have now applied Stevens for more than six years, yet “Tennessee law is less than settled concerning the question of substantial compliance[,]” particularly with respect to Section 121(a)(2)(E). Rush v. Jackson Surgical Assocs. PA, No. W2016-01289-COA-R3-CV, 2017 WL 564887, at *4-5 (Tenn. Ct. App. Feb. 13, 2017). For example, in some cases, prejudice has been treated as a separate independent element of analysis, in addition to substantial compliance. See, e.g., Buckman v. Mountain States Health Alliance, 570 S.W.3d 229, 238-39 (Tenn. Ct. App. 2018) (concluding that the plaintiff failed to substantially comply with subsection (a)(2)(E) and also concluding “that the defendants were prejudiced” by the plaintiff‘s noncompliance), perm. app. denied (Tenn. Nov. 15, 2018). In other cases, prejudice has been treated as a consideration relevant to the determination of whether a plaintiff has substantially complied with Section 121(a)(2)(E), and not as a separate and independent analytical element. See, e.g., Lawson v. Knoxville Dermatology Grp., P.C., 544 S.W.3d 704, 713 (Tenn. Ct. App. 2017) (concluding that the plaintiff failed to substantially comply with Section 121(a)(2)(E) where errors in the authorization prejudiced defendants), perm. app. denied (Tenn. Nov. 16, 2017); Hunt v. Nair, No. E2014-01261-COA-R9-CV, 2015 WL 5657083, at *10-12 (Tenn. Ct. App. Sept. 25, 2015) (concluding that plaintiffs substantially complied with Section 121(a)(2)(E) where non-substantive errors in the HIPAA authorizations did not prejudice the defendants), perm. app. denied (Tenn. Jan. 21, 2015).
We take this opportunity to clarify the role of prejudice in a court‘s determination of whether a plaintiff in a health care liability action has substantially complied with Section 121. We reaffirm Stevens and hold that prejudice is not a separate and independent analytical element; rather, as Stevens explained, prejudice is a consideration relevant to determining whether a plaintiff has substantially complied. Stevens, 418 S.W.3d at 556 (stating that whether a plaintiff “has substantially complied with a statutory [content] requirement,
We also take this opportunity to clarify the burdens each party bears when seeking to establish, or to challenge, compliance with Section 121. We adopt and apply the burden-shifting approach articulated in Myers v. AMISUB (SFH), Inc., 382 S.W.3d at 307. By statute, a health care liability plaintiff bears the initial burden of establishing compliance with Section 121 by stating in the pleadings and providing “the documentation specified in subdivision (a)(2),” or of alleging “extraordinary cause” for any noncompliance.
“how the plaintiff has failed to comply with [Section 121] by referencing specific omissions,” id., and by explaining “the extent and significance of the plaintiff‘s errors and omissions and whether the defendant was prejudiced by the plaintiff‘s noncompliance,” Stevens, 418 S.W.3d at 556. A defendant may demonstrate that the noncompliance resulted in prejudice by explaining—for example—how the noncompliance frustrated or interfered with the purposes of Section 121 or deprived the defendant of a benefit Section 121 confers. One means of satisfying this burden is by alleging that the plaintiff‘s Section 121(a)(2)(E) medical authorization lacks one or more of the six core elements required by federal law for HIPAA compliance. Under federal law, a medical authorization is not HIPAA compliant if “[t]he authorization has not been filled out completely, with respect to” a core element.
Once a defendant files a motion that satisfies the foregoing prima facie showing, the plaintiff then bears the burden of establishing substantial compliance with Section 121, which includes the burden of demonstrating that the noncompliance did not prejudice the defense. Rye, 477 S.W.3d at 264-65; see also Moreno v. City of Clarksville, 479 S.W.3d 795, 802 (Tenn. 2015) (citations omitted) (stating that once the City established a prima facie statute of limitations defense, the plaintiff bore the burden of establishing an exception to the defense); Benton v. Snyder, 825 S.W.2d 409, 414 (Tenn. 1992) (citations omitted) (same). The plaintiff “may not rest upon the mere allegations or denials of [its] pleading,” but must respond, and by affidavits or another means provided in Tеnnessee Rule 56, “set forth specific facts” demonstrating that the noncompliance did not prejudice the defense. Rye, 477 S.W.3d at 265. Defendants have no obligation to aid plaintiffs in meeting this burden, and defendants need not notify plaintiffs that a medical authorization lacks one or more of the six core elements federal law requires for HIPAA compliance. See Stevens, 418 S.W.3d at 559 (rejecting the argument that the defendant should have notified the plaintiff of the noncompliance with Section 121 so that the plaintiff could have remedied the problem).9
Applying this analysis to the undisputed facts in the record on appeal, we conclude that the Plaintiffs failed to substantially comply with Section 121(a)(2)(E). Like the medical authorization in Stevens, the Plaintiffs’ medical authorizations lacked three of the core elements required by federal law for HIPAA compliance. The Plaintiffs’ medical authorizations failed to include: (1) “the name or оther specific identification of the person(s), or class of persons authorized to make the requested use or disclosure[s,]” see
The Plaintiffs failed to respond to the Defendants’ prima facie showing and instead rested on the allegations and arguments in their pleadings, specifically, that the Defendants were not prejudiced by the noncompliance because the Plaintiffs and the Hospital Defendants had engaged in settlement negotiations several months before the Plaintiffs filed the lawsuit and that the Hospital Defendants already had all of the decedent‘s relevant medical records. The Hospital Defendants have never conceded that they were not prejudiced by the Plaintiffs’ failure to comply with Section 121(a)(2)(E), as the hospital did in the case on which the Plaintiffs rely to support their argument. See Hughes, 2015 WL 3562733. To the contrary, the Hospital Defendants have consistently argued that they were prejudiced because, without an authorization allowing them to request records from Dr. Karl, they were unable to fully investigate the case during the pre-suit notice period. In any event, settlement negotiations are not a substitute for a HIPAA compliant medical authorization as required by Section 121(a)(2)(E). Cf. Foster, 467 S.W.3d at 916 (holding that plaintiffs must provide pre-suit notice each time a complaint is filed and that thе pre-suit notice filed before the first complaint was not sufficient when the plaintiff filed a second complaint pursuant to the savings statute). As to Dr. Karl, the Plaintiffs have asserted that he had access to all the decedent‘s medical records because he was either an employee or ostensible agent of Rolling Hills. Again, Dr. Karl has not admitted these allegations, and he introduced correspondence showing that he attempted to use the Plaintiffs’ noncompliant medical authorization without success. The Plaintiffs simply have failed to point to specific facts in the record to satisfy their burden of showing that the Defendants were not prejudiced by their noncompliance. The record on appeal instead supports the Defendants’ arguments that the Plaintiffs’ noncompliance precluded them from receiving the benefits Section 121(a)(2)(E) and (d) were intended to confer by preventing thеm from obtaining the decedent‘s medical records from all other providers named as defendants. See Parks v. Walker, 585 S.W.3d 895, 900 (Tenn. Ct. App. 2018) (holding that a medical authorization lacking core elements required by federal law for HIPAA compliance was not substantially compliant with Section 121(a)(2)(E)), perm. app. denied (Tenn. Mar. 27, 2019); Buckman, 570 S.W.3d at 239 (same); J.A.C., 542 S.W.3d at 513 (same).
The trial court here also noted that the Plaintiffs failed to make any showing of extraordinary cause to excuse their noncompliance with Section 121(a)(2)(E). The trial court addressed this issue, even though the Plaintiffs did not assert extraordinary cause at all in their responses to the Defendants’ motions to dismiss. Rather, the Plaintiffs resisted the Defendants’ motions by asserting that they had substantially complied with Section 121. The Plaintiffs have raised extraordinary cause in passing in their briefs in the Court of Appeals and in this Court; but, as a general rule, “issues raised for the first time on appeal are waived.” State v. Rowland, 520 S.W.3d 542, 545 (Tenn. 2017) (citing Fayne v. Vincent, 301 S.W.3d 162, 171 (Tenn. 2009)). This general rule of waiver applies here to the Plaintiffs’ assertion
Accordingly, we conclude that the pre-suit notice the Plaintiffs provided before filing their first lawsuit failed to substantially comply with Section 121(a)(2)(E). Therefore, the Plaintiffs were not entitled to the 120-day extension of the statute of limitations and their first lawsuit was untimely filed. Because their first lawsuit was not timely filed, the Plaintiffs were not entitled to rely on the savings statute to establish the timeliness of this second lawsuit. Accordingly, the trial court correctly held that the Plaintiffs’ lawsuit is time-barred.
IV. Waived Issue and Separate Opinion
In their brief to this Court, the Plaintiffs also assert that, even if they failed to substantially comply with Section 121(a)(2), they were still entitled to the 120-day extension of the statute of limitations provided in Section 121(c) because that extension is contingent upon a plaintiff‘s compliance with Section 121(a)(2)(B) not upon a plaintiff‘s compliance with Section 121(a)(2). The Plaintiffs recognize that this argument is inconsistent with several prior appellate court decisions, citing Stevens, 418 S.W.3d at 560; J.A.C., 542 S.W.3d at 512; Dolman, 2015 WL 9315565, at *3; and Roberts v. Prill, No. E2013-02202-COA-R3-CV, 2014 WL 2921930, at *1 (Tenn. Ct. App. Junе 26, 2014), but the Plaintiffs assert that these decisions failed to analyze properly the language of Section 121(c). The Plaintiffs failed to raise this issue in either the trial court or the Court of Appeals. “Issues not raised in the trial court or in the intermediate appellate courts may be deemed waived when presented to this Court.” Hodge v. Craig, 382 S.W.3d 325, 334 n.3 (Tenn. 2012) (citing Brown v. Roland, 357 S.W.3d 614, 620 (Tenn. 2012); In re Adoption of E.N.R., 42 S.W.3d 26, 32 (Tenn. 2001); Alexander v. Armentrout, 24 S.W.3d 267, 273 (Tenn. 2000)); see also Harmon v. Hickman Cmty. Healthcare Servs., Inc., 594 S.W.3d 297, 300-301 (Tenn. 2020) (deeming waived several issues raised for the first time in this Court). We conclude that the Plaintiffs have waived this issue.
Inexplicably, Justice Kirby refuses to deem the Plaintiffs’ new issue waived in her separate concurring in part and dissenting in part opinion and instead declares that the Defendants waived the defense of waiver. In Justice Kirby‘s circular analysis, the Defendants are at fault for not asserting waiver when the Plaintiffs raised an issue for the first time in their brief to this Court. Of course, the Plaintiffs have not argued that the Defendants waived the waiver defense (which presumably would mean, under Justice Kirby‘s analysis, that the Plaintiffs waived the argument that the Defendants waived the waiver defense). Nevertheless, Justice Kirby makes that declaration—that the Defendants waived the waiver defense—and then proceeds to address the merits of the issue the Plaintiffs have plainly waived. Conspicuous by its absence is any citation to authority supporting Justice Kirby‘s declaration that the Defendants waived the waiver defense. More importantly, Justice Kirby acknowledges that this Court‘s authority and discretion to deem an issue waived exists independent of a litigant‘s assertion of the defense. We exercise that authority without hesitation here, where the record on appeal is a textbook example of waiver. This record leaves no doubt that the Plaintiffs failed to preserve and raise in the courts below the issue Justice Kirby addresses on the merits and shows that the Plaintiffs first raised it in this Court. Moreover, only three months ago Justice Kirby authored an opinion that applied waiver in almost identical circumstances. See Harmon, 594 S.W.3d at 300-301 (“In
In any event, notwithstanding the fundamental principle of waiver, Justice Kirby addresses the issue on the merits, faults the Court of Appeals (and presumably this Court as well as it denied applications seeking review of many of the intermediate appellate court decisions she now deems erroneous), and asserts that the Court of Appeals has frustrated the
First, Justice Kirby‘s statutory analysis renders Section 121(a)(2) meaningless and is inconsistent with the understanding of the statute‘s meaning by persons who were familiar with the 2009 amendments. See, e.g., Day, supra, at 15 (“There is no penalty for giving more information than required by statute in the notice letter. However, those who fail to give the information required by the statute are at risk for an assertion that the notice is defective and does not
Second, Justice Kirby mischaracterizes in footnote 7 this Court‘s decision in Stevens. This Court in Stevens dismissed the lawsuit without prejudice and did not decide whether the dismissal without prejudice would, as a practical matter, mean the plaintiff‘s claim was time-barred because “the trial court did not reach this issue.” Stevens, 418 S.W.3d at 560.
Third, and finally, Justice Kirby‘s assertion that courts have misconstrued Section 121 and frustrated the General Assembly‘s intent is refuted by the fact that in the eleven years since its enactment the General Assembly has not amended the statute to abrogate these allegedly erroneous judicial decisions. Coffee Cnty. Bd. of Ed. v. City of Tullahoma, 574 S.W.3d 832, 847 (Tenn. 2019) (“[L]egislative inaction following a contemporaneous and practical interpretation of a statute is considered persuasive evidence of the Legislature‘s intent to adopt that interpretation.” (Citations omitted)); Freeman Indus. v. Eastman Chem. Co., 172 S.W.3d 512, 519 (Tenn. 2005) (“[T]he legislature‘s failure to express disapproval of a judicial construction of a statute is persuasive evidence of legislative adoption of the judicial construction.” (Internal quotation marks and citations omitted)).
V. Conclusion
For the reasons stated herein, we reverse the judgment of the Court of Appeals and reinstate the judgment of the trial court dismissing this lawsuit as time-barred. Costs on appeal are taxed to the Plaintiffs for which execution may issue if necessary.
CORNELIA A. CLARK, JUSTICE
Notes
(1) Subject to the provisions of Rule 23.05, Rule 23.06, or Rule 66 or of any statute, and except when a motion for summary judgment made by an adverse party is pending, the plaintiff shall have the right to take a voluntary nonsuit to dismiss an action without prejudice by filing a written notice of dismissal at any time before the trial of a cause and serving a copy of the notice upon all parties . . . .
. . . .
(3) A voluntary nonsuit to dismiss an action without prejudice must be followed by an order of voluntary dismissal signed by the court and entered by the clerk. The date of entry of the order will govern the running of pertinent time periods.
There is no penalty for giving more information than required by statute in the notice letter. However, those who fail to give the information required by the statute are at risk for an assertion that the notice is defective and does not operate to extend the statute of limitations. Thus, counsel may wish to use a checklist to ensure that each letter sent to a health care provider complies with the notice statute.
Day, supra, at 15 (emphasis added).