IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

October 3, 2012 Session

DARLA BULLOCK, as next of kin and sole surviving heir of Linda H.

Lobertini v. UNIVERSITY HEALTH SYSTEMS, INC.

Appeal from the Circuit Court for Knox County

No. 353411 Hon. Wheeler A. Rosenbalm, Judge

No. E2012-00074-COA-R3-CV-FILED-NOVEMBER 27, 2012

This is an appeal in a medical malpractice case. The original plaintiff, the decedent, filed the

initial malpractice action against the defendant, but the case was dismissed after the decedent

passed away during the pendency of the suit. Her sole surviving heir re-filed the action

without complying with Tennessee Code Annotated sections 29-26-121 and 122, which

require a plaintiff who files a medical malpractice suit (1) to give a health care provider who

is to be named in the suit notice of the claim sixty days before filing the suit, and (2) to file

with the medical malpractice complaint a certificate of good faith confirming that the

plaintiff has consulted with an expert who has provided a signed written statement that there

is a good-faith basis to maintain the action. The defendant filed a motion to dismiss, and the

trial court dismissed the case. The plaintiff appeals. We affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court

Affirmed; Case Remanded

JOHN W. MCCLARTY, J., delivered the opinion of the Court, in which CHARLES D. SUSANO,

JR., and D. MICHAEL SWINEY, JJ., joined.

Michael G. Hatmaker, Jacksboro, Tennessee, for the appellant, Darla Bullock, as next of kin

and sole surviving heir of Linda H. Lobertini.

Stephen C. Daves, Knoxville, Tennessee, for the appellee, University Health System, Inc.

OPINION

I. BACKGROUND

Linda H. Lobertini (“the Decedent”) was admitted to the University of Tennessee
Medical Center on July 2, 2007. Five days later, while certain nursing personnel were

preparing her for a CT scan, the Decedent incurred lower extremity lesions, including a left

calf laceration. According to the complaint, the Decedent experienced pain, bleeding, and

fluid drainage from the wound. She brought an action for medical malpractice against

University Health System, Inc. (“UHS”), but passed away during the pendency of the suit.

The Decedent’s counsel took a voluntary nonsuit on October 13, 2010, without prejudice. 

Darla Bullock, the plaintiff in the instant action, re-filed the malpractice suit on

October 13, 2011. She asserts that she is next of kin and sole surviving heir of the Decedent,

who was her mother. A month later, UHS filed a motion to dismiss the complaint, alleging

that the suit filed in 2011 was subject to the requirements of Tennessee Code Annotated

sections 29-26-121 and 29-26-122, and that Bullock failed to meet these requirements. UHS

also alleged that Bullock lacked the capacity to bring the suit, as she brought the action as

next of kin -- not as personal representative.

In her response to the motion, Bullock admitted that she did not comply with the

referenced statutory provisions. She contended, however, that nothing was filed to dismiss

the previous action prior to October 13, 2010, and that UHS had ample time to investigate

the claims prior to October 13, 2010. She asserted that requiring her to give notice of the

re-filing would be “ludicrous.” Bullock took the position that she is “the next of kin and sole

surviving heir” of the Decedent, whose estate was not offered for probate, and any such

action passed to her by operation of law.

After hearing the arguments of counsel on the motion, the trial court dismissed the

action “with full prejudice based on all grounds set forth” by UHS. Bullock filed this appeal

in a timely fashion.

II. ISSUE

The issue raised by Bullock is whether the trial court committed reversible error in

granting UHS’s motion to dismiss.

III. STANDARD OF REVIEW

A motion pursuant to Rule 12.02(6) of the Tennessee Rules of Civil Procedure

challenges only the legal sufficiency of the complaint itself, and not the strength of the

plaintiff’s proof. Trau-Med of Am., Inc. v. Allstate Ins. Co., 71 S.W.3d 691, 696 (Tenn.

2002). We review the trial court’s award of a Rule 12.02(6) motion to dismiss de novo, with

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no presumption of correctness. Id. at 697. In determining whether the trial court erred in

granting the motion to dismiss, we “must construe the complaint liberally, presuming all

factual allegations to be true and giving the plaintiff the benefit of all reasonable inferences.”

Id. The complaint “should not be dismissed for failure to state a claim unless it appears that

the plaintiff can prove no set of facts in support of [the] claim that would warrant relief.” Id.

IV. DISCUSSION

Medical malpractice claims are controlled by statute. In order to prevail in such an

action, the plaintiff must prove: (1) the recognized standard of professional care; (2) that the

defendant failed to act in accordance with the applicable standard of care; and (3) that as a

proximate result of the defendant’s negligent act or omission, the plaintiff suffered an injury

which otherwise would not have occurred. Tenn. Code Ann. § 29-26-115.

As to notice before the suit, Tennessee Code Annotated section 29-26-121 provides

in pertinent part as follows:

(a)(1) Any person . . . asserting a potential claim for medical malpractice 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 medical malpractice in any court of this state.

(2) 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 and address 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.

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(b) If a complaint is filed in any court alleging a claim for medical

malpractice, 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.

(c) When notice is given to a provider as provided in this section, the

applicable statutes of limitations and repose shall be extended for a period of

one hundred twenty (120) days from the date of expiration of the statute of

limitations and statute of repose applicable to that provider.

Tenn. Code Ann. § 29-26-121 (Supp. 2011).

In regard to expert testimony, Tennessee Code Annotated section 29-26-122 provides

as follows:

(a) In any medical malpractice 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 shallstate 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 upon 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)

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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 upon the information available

from the medical recordsreviewed 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 the expert certification.

* * *

(c) 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. . . . If the allegations are stricken, no defendant, except for a

defendant who complied with this section, can assert, and neither shall the

judge nor jury consider, the fault, if any, of those identified by the allegations.

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.

* * *

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(4) A certificate of good faith shall disclose the number of prior

violations of this section by the executing party.

Tenn. Code Ann. § 29-26-122 (Supp. 2011). Bullock failed to comply with either

requirement.

In Myers v. AMISUB (SFH), Inc., ___ S.W.3d ___, No. W2010-00837-SC-R11-CV,

2012 WL 4712152 (Tenn. Oct. 4, 2012), a case similarly involving a re-filed complaint, the

Tennessee Supreme Court ruled that the statutory requirements that a plaintiff give sixty days

pre-suit notice and file a certificate of good faith with the complaint are mandatory

requirements and not subject to substantial compliance. Accordingly, Bullock’s re-filed

action commenced pursuant to the saving statute was a new action governed by the statutory

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provisions in Tennessee Code Annotated sections 29-26-121 and 122. The trial court in the

instant action properly dismissed Bullock’s suit for failing to comply with the statutes and

not demonstrating extraordinary cause for neglecting to do so.

As our ruling regarding the notice and certification matters is dispositive of this

appeal, we pretermit consideration of all other issues.

V. CONCLUSION

We affirm the decision of the trial court. The case is remanded for such further

proceedings as may be necessary. Costs of this appeal are assessed to the appellant, Darla

Bullock, as next of kin and sole surviving heir of Linda H. Lobertini.

_________________________________

JOHN W. McCLARTY, JUDGE

See Tennessee Code Annotated section 28-1-105(a)(providing that a party may re-file its suit within 1

one year of dismissal or reversal of the initial suit that was rendered on any ground not concluding the

action).

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