Marvin D. Kinsey v. Jacob P. Schwarz ( 2017 )

08/18/2017
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs July 3, 2017
MARVIN D. KINSEY V. JACOB P. SCHWARZ, ET AL.
Appeal from the Circuit Court for Davidson County
No. 16C839 Joseph P. Binkley, Jr., Judge
No. M2016-02028-COA-R3-CV
A prison inmate filed a health care liability action against two physicians and a medical
center without providing the defendants with pre-suit notice, as required by Tenn. Code
Ann. § 29-26-121(a), and without attaching a certificate of good faith to the complaint, as
required by Tenn. Code Ann. § 29-26-122. The defendants filed motions to dismiss,
which the trial court granted. The inmate appealed, and we affirm the trial court’s
judgment.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
ANDY D. BENNETT, J., delivered the opinion of the Court, in which CHARLES D. SUSANO,
JR., and KENNY W. ARMSTRONG, JJ., joined.
Marvin D. Kinsey, Wartburg, Tennessee, Pro Se.
Dixie W. Cooper and Kim J. Kinsler, Nashville, Tennessee, for the appellees, John C.
Keith and TriStar Centennial Medical Center.
Jonathan Eric Miles and Renee Levay Stewart, Nashville, Tennessee, for the appellee,
Jacob P. Schwarz.
OPINION
I. PROCEDURAL BACKGROUND
Marvin D. Kinsey filed a complaint on March 28, 2016, against John C. Keith,
M.D., Jacob P. Schwarz, M.D., and TriStar Centennial Medical Center (“CMC”),
asserting claims for health care liability as a result of what is alleged to have been a
botched surgical procedure performed on his lower back. Dr. Schwarz filed a motion to
dismiss at the end of June 2016 pursuant to Tenn. R. Civ. P. 12.02(6) based on Mr.
Kinsey’s failure to file a certificate of good faith as required by Tenn. Code Ann. § 29-
26-122, his failure to serve Dr. Schwarz with pre-suit notice as required by Tenn. Code
Ann. § 29-26-121(a)(1), and his failure to file the requisite proof of statutory compliance
with his complaint as required by Tenn. Code Ann. § 29-26-121(a)(4). The trial court
held a hearing in July and entered an order on August 8, 2016, dismissing Mr. Kinsey’s
claims against Dr. Schwarz. Dr. Keith and CMC filed a motion to dismiss in August
2016 based on the same grounds as the motion filed by Dr. Schwarz. The trial court
granted Dr. Keith and CMC’s motion at the end of August 2016, and it made its earlier
order granting Dr. Schwarz’s motion to dismiss final after finding that “the grounds for
the dismissal cannot be cured.”
Mr. Kinsey appeals the trial court’s dismissal of his complaint. He contends that
the trial court erred in concluding that he failed to provide pre-suit notice to the
defendants. Alternatively, he argues that he demonstrated extraordinary cause that the
court should have found excused or waived his compliance with the statute. Mr. Kinsey
also asserts that the trial court erred in concluding that he failed to demonstrate
extraordinary cause to excuse his compliance with the statutory requirement that he file a
good faith certificate with his complaint. Finally, Mr. Kinsey contends the trial court
erred in making the order dismissing his complaint against Dr. Schwarz final on the basis
that the grounds for dismissal could not be cured.
II. ANALYSIS
A. Standard of Review
A party that files a motion pursuant to Rule 12.02(6) asserts that the plaintiff has
failed to state a claim upon which relief can be granted. TENN. R. CIV. P. 12.02(6). The
motion “challenges only the legal sufficiency of the complaint, not the strength of the
plaintiff’s proof or evidence.” Webb v. Nashville Area Habitat for Humanity, Inc., 346
S.W.3d 422, 426 (Tenn. 2011); see also Willis v. Tenn. Dep’t of Corr., 113 S.W.3d 706,
710 (Tenn. 2003). A Rule 12.02(6) motion is resolved by examining the complaint
alone; if the plaintiff can prove any set of facts in support of the claims asserted that
would entitle it to relief, the trial court should deny the motion to dismiss. Webb, 346
S.W.3d at 426 (citing Leggett v. Duke Energy Corp., 308 S.W.3d 843, 851 (Tenn. 2010);
Crews v. Buckman Labs. Int’l, Inc., 78 S.W.3d 852, 857 (Tenn. 2002)). The party filing
the motion ‘“admits the truth of all the relevant and material allegations contained in the
complaint, but . . . asserts that the allegations fail to establish a cause of action.’” Phillips
v. Montgomery Cnty., 442 S.W.3d 233, 237 (Tenn. 2014) (quoting Webb, 346 S.W.3d at
426) (further citations omitted). When ruling on Rule 12.02(6) motions, courts are to
‘“construe the complaint liberally, presuming all factual allegations to be true and giving
the plaintiff the benefit of all reasonable inferences.’” Id. (quoting Webb, 346 S.W.3d at
426) (further citations omitted).
-2-
When a defendant files a motion to dismiss that is properly supported and is based
on the plaintiff’s failure to comply with Tenn. Code Ann. §§ 29-26-121 and -122, the
plaintiff must demonstrate either that he or she complied with the statutory requirements
or that he or she had “extraordinary cause for failing to do so.” Myers v. AMISUB (SFH),
Inc., 382 S.W.3d 300, 307 (Tenn. 2012). The determination of whether a complaint
should be dismissed for failure to state a claim is a question of law that appellate courts
review de novo, with no presumption of correctness afforded to the trial court’s decision.
Foster v. Chiles, 467 S.W.3d 911, 914 (Tenn. 2015); Phillips, 442 S.W.3d at 237; Webb,
346 S.W.3d at 426.
Mr. Kinsey represented himself at trial and is representing himself on appeal as
well. We have stated the following with respect to pro se litigants:
Parties who decide to represent themselves are entitled to fair and equal
treatment by the courts. Whitaker v. Whirlpool Corp., 32 S.W.3d 222, 227
(Tenn. Ct. App. 2000); Paehler v. Union Planters Nat’l Bank, Inc., 971
S.W.2d 393, 396 (Tenn. Ct. App. 1997). The courts should take into
account that many pro se litigants have no legal training and little
familiarity with the judicial system. Irvin v. City of Clarksville, 767 S.W.2d
649, 652 (Tenn. Ct. App. 1988). However, the courts must also be mindful
of the boundary between fairness to a pro se litigant and unfairness to the
pro se litigant’s adversary. Thus, the courts must not excuse pro se litigants
from complying with the same substantive and procedural rules that
represented parties are expected to observe. Edmundson v. Pratt, 945
S.W.2d 754, 755 (Tenn. Ct. App. 1996); Kaylor v. Bradley, 912 S.W.2d
728, 733 n. 4 (Tenn. Ct. App. 1995).
Young v. Barrow, 130 S.W.3d 59, 62-63 (Tenn. Ct. App. 2003). Pro se litigants receive
“a certain amount of leeway in drafting their pleadings and briefs,” but they “should not
be permitted to shift the burden of the litigation to the courts or to their adversaries.” Id.
at 63; see Stewart v. Schofield, 368 S.W.3d 457, 462 (Tenn. 2012) (“Pleadings prepared
by pro se litigants untrained in the law should be measured by less stringent standards
than those applied to pleadings prepared by lawyers.”). Thus, we will look to the
substance rather than the form of Mr. Kinsey’s briefs in considering his arguments on
appeal. See Young, 130 S.W.3d at 63.
B. Tennessee Health Care Liability Act
In his complaint, Mr. Kinsey alleged that the defendants were liable for medical
malpractice in connection with back fusion surgery he underwent in March 2015.
According to Mr. Kinsey’s complaint, Dr. Schwarz performed the surgery on March 11,
2015; Mr. Kinsey was discharged on March 15; and he was rushed back to the emergency
room on March 26 after he experienced sharp pain while taking a shower. Mr. Kinsey
-3-
asserted that Dr. Keith was the emergency care physician who ordered x-rays on March
26 and that Dr. Keith failed to notice that one of the cadaver bones that had been inserted
by Dr. Schwarz was out of place and had punctured the “cerebral tub (the tub that takes
fluid and nerves to the brain),” causing some of Mr. Kinsey’s nerves to be severed. Mr.
Kinsey alleged that as a result of the physicians’ negligence, he is now partially
paralyzed, he is confined to a wheelchair, and he has suffered nerve damage in his right
leg.
Mr. Kinsey stated in paragraph twelve of his complaint that he attempted to give
Drs. Schwarz and Keith pre-suit notice on February 8, 2016, “at their place of
employment (or business address) by certified mail returned receipt as required by T.C.A.
§ 29-26-121(a)(3)(B)(i) and (4),” but that both notices were returned to him as “refused”
by the defendants. Mr. Kinsey attached as Exhibit 1 to his complaint a copy of the
“Notice of Claim for Health Care Liability,” “Certificate of Service,” “Declaration of
Mailing,” and “Authorization to Furnish Medical Information: HIPPA Compliance
Form” that he asserted he sent to both Dr. Schwarz and Dr. Keith. Mr. Kinsey also
included in Exhibit 1 a photocopy of the certified mail forms he used that are postmarked
February 9, 2016. The notices and other documents were returned to Mr. Kinsey on
February 25, 2016, and were marked by the post office as “return to sender; refused;
unable to forward.”
Mr. Kinsey initially filed his complaint on March 28, 2016. He filed an amended
complaint two days later, on March 30. Mr. Kinsey failed to attach a certificate of good
faith to either his initial or amended complaint. The complaint was not served on Dr.
Schwarz until June 10, 2016, and it was not served on CMC until July 26, 2016. Dr.
Keith asserts that he was never served with the complaint but that he filed a waiver of
summons to allow the lawsuit to proceed.
Dr. Schwarz filed a motion to dismiss the complaint on June 30, 2016, based on
Mr. Kinsey’s failure to serve him with pre-suit notice as required by Tenn. Code Ann. §
29-26-121(a)(1), Mr. Kinsey’s failure to file a certificate of good faith as required by
Tenn. Code Ann. § 29-26-122, and Mr. Kinsey’s failure to file the requisite proof of
statutory compliance with his complaint as required by Tenn. Code Ann. § 29-26-
121(a)(4). The hearing on the motion was scheduled for July 22, 2016. Mr. Kinsey filed
a motion on July 21 seeking additional time to respond to Dr. Schwarz’s motion to
dismiss. On July 22, Mr. Kinsey filed a document entitled “Certificate of Good Faith” in
which he asked the trial court to waive the requirement that he file a certificate of good
faith because of his alleged inability to comply due to reasons outside of his control. In
support of this request, Mr. Kinsey stated:
First, Kinsey contends that he is incarcerated and is under the care of
TDOC’s health care provider which after consulting with M.C.C.X.’s
physician, he refuses to get involved in this case.
-4-
Second, because Kinsey is incarcerated he is unable to freely consult
with other physicians in the area that would be willing to review his
medical records to verify that Kinsey is bringing suit in good faith.
Finally, the fact that Kinsey is incarcerated, it places a significant
impossibility to comply with T.C.A. § 29-26-122.
For these reasons, Kinsey has demonstrate[d] extraordinary good cause
exception and respectfully request[s] that this Honorable Court WAIVE
compliance of the certificate of good faith.
The trial court denied Mr. Kinsey’s motions, finding they were “futile,” and it
granted Dr. Schwarz’s motion to dismiss by order filed on August 8, 2016. The court
wrote:
Tenn. Code Ann. § 29-26-121 requires any person asserting a
potential claim for health care liability to 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 the complaint based upon health care
liability. The pleadings must state whether the plaintiff complied with this
requirement and the plaintiff must demonstrate compliance of providing
such notice. Plaintiff, in the instant case, failed to comply with the
requirements set forth in Tenn. Code Ann. § 29-26-121. Thus, pursuant to
Tenn. Code Ann. § 29-26-121, Rule 12.02(6) of the Tennessee Rules of
Civil Procedure and Rule 26.04(g) of the Davidson County Local Rules of
Practice, the Defendant’s Motion to Dismiss is well taken and is
GRANTED.
Tenn. Code Ann. § 29-26-122 provides that the plaintiff in any
health care liability action shall file a certificate of good faith with the
complaint. Plaintiff, in the instant case, has not filed a certificate of good
faith with his Complaint or at any time and, thus, failed to comply with the
requirements set forth in Tenn. Code Ann. § 29-26-122. Tenn. Code Ann.
§ 29-26-122(a) provides that a plaintiff’s Complaint shall be dismissed,
absent a showing that the failure to file the certificate of good faith was due
to the failure of the medical provider to timely provide copies of the
plaintiff’s records requested or demonstrated extraordinary cause. Plaintiff
did not properly make any such showing. Thus, pursuant to Tenn. Code
Ann. § 29-26-122, Rule 12.02(6) of the Tennessee Rules of Civil Procedure
and Rule 26.04(g) of the Davidson County Local Rules of Practice, the
Defendant’s Motion to Dismiss is well taken and is GRANTED.
-5-
Dr. Keith and CMC filed a motion to dismiss based on the same grounds.1 Dr.
Schwarz filed an additional motion asking the court to make final its earlier order
dismissing the case against him because the grounds supporting the dismissal could not
be cured. The trial court filed an order on August 30, 2016, granting Dr. Keith and
CMC’s motion as well as Dr. Schwarz’s motion. The court wrote:
Regarding Defendant CMC and Defendant Dr. Keith’s Motion to
Dismiss, they collectively asserted that Plaintiff did not comply with the
requirements set forth in T.C.A. §§ 29-26-121 and 122. Pursuant to T.C.A.
§ 29-26-121, any person asserting a potential claim for health care liability
must give written notice of the potential claims to each health care provider
that will be a named defendant at least sixty (60) days before the filing of
the complaint based upon health care liability. In this case, Plaintiff did not
attempt to provide pre-suit notice to Defendant CMC, failed to provide pre-
suit notice to Defendant Dr. Keith, filed his complaint prematurely, and
failed to file the requisite proof of statutory compliance with his complaint.
Pursuant to T.C.A. § 29-26-122, a plaintiff in a health care liability
action shall file a certificate of good faith with the complaint. In this case,
Plaintiff did not file a certificate of good faith with his complaint as
required by T.C.A. § 29-26-122.
Regarding Defendant Dr. Schwarz’s Motion to Make the August 8,
2016 Order of Dismissal Final, he asserts that there is no just reason to
delay making the order final because the grounds for the dismissal cannot
be cured.
After considering the motions, materials submitted in support
thereof, the relevant statutes and supporting case law, it is therefore
ORDERED as follows:
1. Defendant CMC and Defendant Dr. Keith’s Motion to Dismiss is
GRANTED because Plaintiff failed to comply with the mandatory
requirements set forth in T.C.A. §§ 29-26-121, and 122.
2. Defendant Dr. Schwarz’s Motion to Make the August 8, 2016, Order of
Dismissal Final is GRANTED because the grounds for dismissal cannot be
Cured.2
1
In addition, CMC pointed out that Mr. Kinsey did not even attempt to provide it with pre-suit notice. Mr.
Kinsey concedes in his appellate court brief that he overlooked serving pre-suit notice on CMC and that
CMC should, therefore, be dropped from the lawsuit.
2
Although the trial court did not specifically address Tenn. Code Ann. § 29-26-121(a)(4) in either order
granting the defendants’ motions to dismiss, the court noted that Mr. Kinsey failed to file the requisite
-6-
In Tennessee, plaintiffs who allege health care liability actions “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 . . . .” Tenn. Code Ann. § 29-26-
121(a)(1). The notice may be served via personal delivery, Tenn. Code Ann. § 29-26-
121(a)(3)(A), or by mail, Tenn. Code Ann. § 29-26-121(a)(3)(B). If the notice is to be
served by mail, the statute requires the notice to be sent as follows:
(i) To an individual health care provider at both the address listed for the
provider on the Tennessee department of health web site and the provider’s
current business address, if different from the address maintained by the
Tennessee department of health; provided, that, if the mailings are returned
undelivered from both addresses, then, within five (5) business days after
receipt of the second undelivered letter, the notice shall be mailed in the
specified manner to the provider’s office or business address at the location
where the provider last provided a medical service to the patient; or
(ii) To a health care provider that is a corporation or other business entity at
both the address for the agent for service of process, and the provider’s
current business address, if different from that of the agent for service of
process; provided, that, if the mailings are returned undelivered from both
addresses, then, within five (5) business days after receipt of the second
undelivered letter, the notice shall be mailed in the specified manner to the
provider’s office or business address at the location where the provider last
provided a medical service to the patient.
Tenn. Code Ann. § 29-26-121(a)(3)(B).
proof of statutory compliance with his complaint. Section 29-26-121(a)(4) requires the following:
Compliance with subdivision (a)(3)(B) shall be demonstrated by filing a certificate of
mailing from the United States postal service stamped with the date of mailing and an
affidavit of the party mailing the notice establishing that the specified notice was timely
mailed by certified mail, return receipt requested. A copy of the notice sent shall be
attached to the affidavit. It is not necessary that the addressee of the notice sign or return
the return receipt card that accompanies a letter sent by certified mail for service to be
effective.
Mr. Kinsey included an affidavit of his own stating that he “placed the foregoing with the appropriate
mailroom officials at the Morgan County Correctional Complex with sufficient First Class Postage to
reach its destination,” but he neglected to file a certificate of mailing from the United States postal service
stamped with the date of mailing,” as required by the statute. As our Supreme Court explained in
Thurmond v. Mid-Cumberland Infectious Disease Consultants, PLC, 433 S.W.3d 512, 520 (Tenn. 2014),
“the affidavit functions as confirmation that pre-suit notice was timely served on potential defendants in a
manner authorized by statute.”
-7-
Mr. Kinsey acknowledges that he sent his pre-suit notice to Dr. Schwarz and Dr.
Keith at the location where the defendants provided medical services to him. Mr. Kinsey
concedes that he did not send the notices to the defendants’ addresses listed on the
Tennessee Department of Health web site or at the defendants’ current business addresses
as required by Tenn. Code Ann. § 29-26-121(a)(3)(B). Even if he had sent the pre-suit
notices to Drs. Schwarz and Keith at the addresses required by the statute, however, Mr.
Kinsey would have fallen short of providing the requisite sixty days’ notice before he
filed his complaint on March 28. Only forty-eight days elapsed between the date the
notices were sent and the date Mr. Kinsey filed his complaint.
The Health Care Liability Act also requires a plaintiff alleging medical
malpractice to file a certificate of good faith with the complaint. This requirement is set
forth in Tenn. Code Ann. § 29-26-122, which provides, in pertinent part:
(a) In any health care liability action in which expert testimony is required
by § 29-26-115, the plaintiff or plaintiff’s counsel shall file a certificate of
good faith with the complaint. If the certificate is not filed with the
complaint, the complaint shall be dismissed, as provided in subsection (c),
absent a showing that the failure was due to the failure of the provider to
timely provide copies of the claimant’s records requested as provided in
§ 29-26-121 or demonstrated extraordinary cause. The certificate of good
faith shall state that:
(1) The plaintiff or plaintiff’s counsel has consulted with one (1) or more
experts who have provided a signed written statement confirming that upon
information and belief they:
(A) Are competent under § 29-26-115 to express an opinion or opinions in
the case; and
(B) Believe, based on the information available from the medical records
concerning the care and treatment of the plaintiff for the incident or
incidents at issue, that there is a good faith basis to maintain the action
consistent with the requirements of § 29-26-115; or
(2) The plaintiff or plaintiff’s counsel has consulted with one (1) or more
experts who have provided a signed written statement confirming that upon
information and belief they:
(A) Are competent under § 29-26-115 to express an opinion or opinions in
the case; and
-8-
(B) Believe, based on the information available from the medical records
reviewed concerning the care and treatment of the plaintiff for the incident
or incidents at issue and, as appropriate, information from the plaintiff or
others with knowledge of the incident or incidents at issue, that there are
facts material to the resolution of the case that cannot be reasonably
ascertained from the medical records or information reasonably available to
the plaintiff or plaintiff’s counsel; and that, despite the absence of this
information, there is a good faith basis for maintaining the action as to each
defendant consistent with the requirements of § 29-26-115. Refusal of the
defendant to release the medical records in a timely fashion or where it is
impossible for the plaintiff to obtain the medical records shall waive the
requirement that the expert review the medical record prior to expert
certification.
Tenn. Code Ann. § 29-26-122.3
The Tennessee Supreme Court has addressed both statutes at issue in this case and
has determined that the legislature’s use of the word “shall” in Tenn. Code Ann. § 29-26-
121(a)(1) (a plaintiff “asserting a potential claim for health care liability shall give
written notice . . .”) and § 29-26-122(a) (“the plaintiff . . . shall file a certificate of good
faith with the complaint”) indicates that the requirements are mandatory rather than
directory. Myers, 382 S.W.3d at 308 (citing Bellamy v. Cracker Barrel Old Country
Store, Inc., 302 S.W.3d 278, 281 (Tenn. 2009)). The Myers Court explained:
3
Tennessee Code Annotated section 29-26-115 provides, in relevant part, as follows:
(a) In a health care liability action, the claimant shall have the burden of proving by
evidence as provided by subsection (b):
(1) The recognized standard of acceptable professional practice in the profession and the
specialty thereof, if any, that the defendant practices in the community in which the
defendant practices or in a similar community at the time the alleged injury or wrongful
action occurred;
(2) That the defendant acted with less than or failed to act with ordinary and reasonable
care in accordance with such standard; and
(3) As a proximate result of the defendant’s negligent act or omission, the plaintiff
suffered injuries which would not otherwise have occurred.
(b) No person in a health care profession requiring licensure under the laws of this state
shall be competent to testify in any court of law to establish the facts required to be
established by subsection (a), unless the person was licensed to practice in the state or a
contiguous bordering state a profession or specialty which would make the person’s
expert testimony relevant to the issues in the case and had practiced this profession or
specialty in one (1) of these states during the year preceding the date that the alleged
injury or wrongful act occurred. This rule shall apply to expert witnesses testifying for
the defendant as rebuttal witnesses. The court may waive this subsection (b) when it
determines that the appropriate witnesses otherwise would not be available.
-9-
The essence of Tennessee Code Annotated section 29-26-121 is that a
defendant be given notice of a medical malpractice claim before suit is
filed. The essence of Tennessee Code Annotated section 29-26-122 is that a
defendant receive assurance that there are good faith grounds for
commencing such action. The requirements of pre-suit notice of a potential
claim under Tennessee Code Annotated section 29-26-121 and the filing of
a certificate of good faith under Tennessee Code Annotated section 29-26-
122 are fundamental to the validity of the respective statutes and dictate
that we construe such requirements as mandatory.
Id. at 309 (footnote omitted); see Stevens ex rel. Stevens v. Hickman Cmty. Health Care
Servs., 418 S.W.3d 547, 555 (Tenn. 2013) (“[I]f strict compliance with a particular
statutory provision is essential to avoid prejudicing an opposing litigant, the prescribed
mode of action will be mandatory.” (citing Jones v. Prof’l Motorcycle Escort Serv.,
L.L.C., 193 S.W.3d 564, 571 (Tenn. 2006))). The Myers Court reviewed the legislative
history of the statutes and determined that the purpose of the pre-suit notice provision is
to alert prospective defendants that a lawsuit alleging medical malpractice is soon to be
filed. Myers, 382 S.W.3d at 309-10. The Myers Court noted that both the pre-suit notice
requirement and the certificate of good faith requirement are “precisely stated” and
“provide clear guidance and detailed instruction for meeting those requirements.” Id. at
310. Neither requirement can be satisfied by substantial compliance because both
requirements are “mandatory” rather than “directory.” Id. With respect to the certificate
of good faith, the Myers Court held that prior statements by a plaintiff’s experts did not
satisfy the statutory requirement that a certificate of good faith be filed with the
complaint, even if the statements were shared with the defendants in a prior lawsuit. Id.
The Myers Court discussed the meaning of “extraordinary cause” as that term is
used in Tenn. Code Ann. §§ 29-26-121(b)4 and -122(a). Id. at 310-11. Recognizing that
the statute does not define “extraordinary” and that the legislative history sheds no light
on the meaning to be assigned to the phrase, the Court determined that the “plain and
ordinary meaning” should be applied. Id. at 310. “Extraordinary,” wrote the Court, “is
commonly defined as ‘“going far beyond the ordinary degree, measure, limit, etc.; very
unusual; exceptional; remarkable.’” Id. at 310-11 (quoting WEBSTER’S NEW WORLD
DICTIONARY OF THE AMERICAN LANGUAGE, 516 (1966)). The Court continued that
examples of “extraordinary cause” might include ‘“illness of the plaintiff’s lawyer, a
4
Tennessee Code Annotated section 29-26-121(b) provides:
If a complaint is filed in any court alleging a claim for health care liability, the 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.
- 10 -
death in that lawyer’s immediate family, [or] illness or death of the plaintiff’s expert in
the days before the filing became necessary.”’ Id. at 311 (quoting John A. Day, Med Mal
Makeover 2009 Act Improves on ‘08; The New New Medical Malpractice Notice and
Certificate of Good Faith Statutes, 45 TENN. B.J. 14, 17 (2009)).
1. Pre-Suit Notice
Mr. Kinsey acknowledges that he filed his complaint before sixty days passed
from the date he attempted to serve his pre-suit notice on Dr. Schwarz and Dr. Keith. He
also acknowledges that he did not comply with the statutory requirement that he mail the
notice to Dr. Schwarz and Dr. Keith at both the address listed for them on the Tennessee
Department of Health web site and their current business address before mailing it to
them at the location where they last provided a medical service to him. See Tenn. Code
Ann. § 29-26-121(a)(3)(B). Mr. Kinsey was incarcerated when he sent the pre-suit
notices and when he filed his complaints, and he claims he was unable to obtain the
physicians’ addresses on the Tennessee Department of Health’s web site or their current
business addresses because he did not have access to a computer. However, the record
does not reflect that Mr. Kinsey raised this argument before the trial court and that he is
making this argument for the first time on appeal. “Issues raised for the first time on
appeal are waived.” Dick Broad. Co., Inc. of Tenn. v. Oak Ridge FM, Inc., 395 S.W.3d
653, 670 (Tenn. 2013); Brandon v. Williamson Med. Ctr., 343 S.W.3d 784, 791 (Tenn.
Ct. App. 2010); Johnston v. Houston, 170 S.W.3d 573, 578 (Tenn. Ct. App. 2004).
Mr. Kinsey relies on the case Arden v. Kozawa, 466 S.W.3d 758 (Tenn. 2015), to
argue he substantially complied with the pre-suit notice requirement by mailing the notice
to the address where the defendants provided him with services. The plaintiff in Arden
deviated from the statutory mandate by serving his pre-suit notice by Federal Express
rather than by certified mail, return receipt requested. Arden, 466 S.W.3d at 761. Mr.
Kinsey is correct in pointing out that the Supreme Court in Arden held that the manner
and proof of service requirements set forth in Tenn. Code Ann. § 29-26-121(a)(3)(B) “are
not mandatory, but directory, and can be achieved through substantial compliance.” Id.
at 764. The Court considered “the extent and significance of the plaintiff’s deviation
from the statute and whether the defendant was prejudiced by the plaintiff's
noncompliance” to determine whether the plaintiff substantially complied with the pre-
suit notice requirement. Id. at 763. The Arden Court explained that “[t]he overarching
purpose of the pre-suit notice statute is to ensure that health care defendants receive
timely notice of a forthcoming lawsuit.” Id. at 764; see also Foster, 467 S.W.3d at 915
(“Pre-suit notice affords defendants the opportunity to investigate the merits of a claim
and to pursue settlement negotiations before suit is filed.” (citing Stevens, 418 S.W.3d at
564)). In concluding that the plaintiff substantially complied with the pre-suit notice
requirement by serving the notice by way of Federal Express rather than certified mail,
return receipt requested, the Court noted that the defendants suffered no prejudice
because the purpose of the statute was satisfied — the defendants were notified of the
- 11 -
forthcoming complaint at least sixty days before the complaint was filed, and the plaintiff
was able to provide proof of the delivery of the notices to the defendants. Arden, 466
S.W.3d at 764-65.
In contrast to the facts of Arden, the record here shows that the notices Mr. Kinsey
mailed to Dr. Schwarz and Dr. Keith were returned to him as undeliverable, and there is
no evidence that either physician actually received pre-suit notice at all. Thus, the
Supreme Court’s decision in Arden does not further Mr. Kinsey’s cause. Although the
Supreme Court held that the manner of service could vary from the method set forth in
the statute, the Court also held that failure to provide pre-suit notice as required by the
statute should result in the dismissal of the complaint. Id. at 763.
We conclude that Mr. Kinsey has not demonstrated extraordinary cause to justify
the waiver or excuse of his obligation to comply with the pre-suit notice as required by
Tenn. Code Ann. § 29-26-121(a).
2. Certificate of Good Faith
Mr. Kinsey next argues that the trial court erred in failing to waive the requirement
that he file a certificate of good faith with his complaint because he was incarcerated and
was unable to find a physician who would be willing to review his medical records and
verify that he was filing the lawsuit in good faith. A similar argument was made by the
plaintiff in Mathes v. Lane, No. E2013-01457-COA-R3-CV, 2014 WL 346676 (Tenn. Ct.
App. Jan. 30, 2014). Mr. Mathes was the plaintiff in that case, and, like Mr. Kinsey, Mr.
Mathes failed both to provide the defendant physician with pre-suit notice and to file a
certificate of good faith with the complaint. Mathes, 2014 WL 346676, at *6-7. Mr.
Mathes was incarcerated when he was treated by the defendant, and he was representing
himself. Id. at *1. He argued that “due to his status as a pro se litigant and incarcerated
inmate, this Court should determine that he ‘met the minimum standard in filing his
suit.’” Id. at *4. The Court of Appeals found Mr. Mathes’s argument “unavailing,”
explaining that “[t]he leniency we may afford to pleadings drafted by pro se litigants does
not extend to excusing such litigants ‘from complying with the same substantive and
procedural rules that represented parties are expected to observe.’” Id. at *7 (quoting
Hessmer v. Hessmer, 138 S.W.3d 901, 903 (Tenn. Ct. App. 2003)). The Mathes court
concluded that the trial court did not abuse its discretion in finding no extraordinary cause
existed to excuse either Mr. Mathes’s failure to provide pre-suit notice to the defendants
or Mr. Mathes’s failure to file a certificate of good faith along with his complaint. Id. at
*7-8.
According to Tenn. Code Ann. § 29-26-122(c), a health care liability lawsuit is
subject to dismissal if a certificate of good faith is not filed as required by the statute:
- 12 -
The failure of a plaintiff to file a certificate of good faith in compliance
with this section shall, upon motion, make the action subject to dismissal
with prejudice. . . . The court may, upon motion, grant an extension within
which to file a certificate of good faith if the court determines that a health
care provider who has medical records relevant to the issues in the case has
failed to timely produce medical records upon timely request, or for other
good cause shown.
Mr. Kinsey filed a motion on July 29, 2016, entitled “Amended Motion for Enlargement
of Time in Which to Reply to Defendant’s Motion to Dismiss and File a Certificate of
Good Faith.” However, the trial court held a hearing on Dr. Schwarz’s motion to dismiss
on July 22, seven days before Mr. Kinsey filed his motion seeking an extension, and the
record does not indicate whether this late-filed motion was ever considered or ruled
upon.5
‘“The filing of a certificate of good faith indicating that an expert has reviewed the
claims and has certified that they are taken in good faith ‘satisfies the goal of attempting
to ensure that suits proceeding through litigation have some merit.’’” Caldwell v.
Vanderbilt Univ., No. M2012-00328-COA-R3-CV, 2013 WL 655239, at *5 (Tenn. Ct.
App. Feb. 20, 2013) (quoting Kerby v. Haws, M2011-01943-COA-R3-CV, 2012 WL
6675097, at *4 (Tenn. Ct. App. Dec. 20, 2012) (itself quoting Jenkins v. Marvel, 683 F.
Supp. 2d 626, 639 (E.D. Tenn. 2010)); see also Myers, 382 S.W.3d at 309. Citing Tenn.
Code Ann. § 29-26-122(c), the Caldwell court reaffirmed that a plaintiff’s failure to file
the certificate of good faith “in compliance with this section” subjects the complaint to
dismissal upon motion by the defendant(s). Caldwell, 2013 WL 655239, at *5. Because
the plaintiff in Caldwell failed to file a certificate that contained all the information
required by the statute, the court dismissed the plaintiff’s complaint upon the defendant’s
motion. Id. at *6; see also Dunlap v. Laurel Manor Health Care, Inc., 422 S.W.3d 577,
578 (Tenn. Ct. App. 2013); West v. AMISUB(SFH), Inc., No. W2012-00069-COA-R3-
CV, 2013 WL 1183074, at *6 (Tenn. Ct. App. Mar. 21, 2013). The plaintiff’s pro se
status was not enough to cause the court in Brandon v. Williamson Medical Center to
excuse the filing of a certificate of good faith. Brandon, 343 S.W.3d at 790-92. Mr.
Kinsey does not cite any case in which a court has waived altogether the filing of the
certificate of good faith, and we are not aware of any such case.6
5
In the text of the motion, Mr. Kinsey sought an extension of time “to file a reply [to Dr. Schwarz’s
motion to dismiss], discovery and leave to amend the Complaint.” In an accompanying affidavit, Mr.
Kinsey stated that he was requesting the court to extend from July 22 to August 22 the time within which
he could respond to Dr. Schwarz’s motion to dismiss and to file a certificate of good faith. However, Mr.
Kinsey had earlier asked the court to waive the requirement that he file a certificate of good faith because
he was unable to find a physician from his position in prison who would be willing to sign such a
certificate.
6
Mr. Kinsey contends the defendants failed to produce his medical records. However, there is no
evidence that any of the defendants received the statutory pre-suit notice containing the authorized
- 13 -
We conclude that the trial court did not err in denying Mr. Kinsey’s request to
waive the statutory requirement that he file a certificate of good faith with his complaint,
pursuant to Tenn. Code Ann. § 29-26-122. Mr. Kinsey does not demonstrate how he
could have cured his non-compliance with the statutory requirements of pre-suit notice
and certificate of good faith with regard to Dr. Schwarz. Accordingly, we hold the trial
court did not err in making final its earlier order dismissing Mr. Kinsey’s complaint
against Dr. Schwarz at the same time that it dismissed the complaint against CMC and
Dr. Keith.
III. CONCLUSION
The judgment of the trial court is affirmed. The costs of this appeal shall be taxed
against the appellant, Marvin D. Kinsey, for which execution shall issue, if necessary.
________________________________
ANDY D. BENNETT, JUDGE
HIPAA compliant medical authorization that triggers the defendants’ obligation to produce the claimant’s
medical records within the next thirty days. See Tenn. Code Ann. § 29-26-121(d)(1). Mr. Kinsey filed a
document request asking Dr. Schwarz to produce his medical records on July 22, 2016, but this request
was made too late to allow Mr. Kinsey to utilize the records for purposes of filing a certificate of good
faith with his complaint, as required by the statute.
- 14 -