IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

Submitted on Briefs November 1, 2016

ROBERTA PIPER, FOR HERSELF AS SPOUSE AND WIDOW OF MERLE PIPER, 

DECEASED v. CUMBERLAND MEDICAL CENTER ET AL.

Appeal from the Circuit Court for Cumberland County

No. CC1-2015-CV-6044 Amy Hollars, Judge

No. E2016-00532-COA-R3-CV-FILED-JANUARY 20, 2017

The plaintiff filed this health care liability action on behalf of herself and her deceased 

husband, alleging that his death was caused by the negligent care he received from the 

defendant hospital and physicians. The defendants moved to dismiss the plaintiff‟s 

claims because she failed to comply with the requirements of Tennessee Code Annotated 

§ 29-26-121(a)(2)(D) and (E). The trial court granted the motions and dismissed the 

plaintiff‟s claims. The plaintiff has appealed. Discerning no reversible error, we affirm 

the trial court‟s judgment of dismissal.

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

Affirmed; Case Remanded

THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which ANDY D.

BENNETT, J., and J. STEVEN STAFFORD, P.J., W.S., joined.

Ronald Aronds, Ooltewah, Tennessee, for the appellant, Roberta Piper.

F. Michael Fitzpatrick and Rachel Park Hurt, Knoxville, Tennessee, for the appellee, 

Cumberland Medical Center.

James G. O‟Kane, Knoxville, Tennessee, for the appellee, Ayca Kabasakal, M.D.

David E. Waite and Richard A. McCall, Knoxville, Tennessee, for the appellee, Merhaf 

K. Zeino, M.D.
2

OPINION

I. Factual and Procedural Background

Roberta Piper, as spouse and widow of Merle Piper (“Decedent”), filed a health 

care liability action on October 13, 2015, in the Circuit Court for Cumberland County. 

Ms. Piper asserted in her complaint that the Decedent was treated by defendants Merhaf 

K. Zeino, M.D., and Ayca Kabasakal, M.D., at the Cumberland Medical Center (“CMC”) 

from October 18, 2014, until his death on October 28, 2014.1 According to the 

complaint, Decedent sought treatment at CMC for fatigue and underwent a urinalysis. 

Decedent was diagnosed with stage four kidney failure. Ms. Piper alleged in the 

complaint that on October 28, 2014, Dr. Kabasakal remarked to Ms. Piper that “it was a 

shame they couldn‟t treat her husband due to his religious beliefs.” Ms. Piper 

subsequently discovered that Decedent‟s chart incorrectly listed his religious affiliation as 

Jehovah‟s Witness. Although Ms. Piper corrected this misinformation and gave 

permission for treatment, Decedent passed away that same night. Ms. Piper also asserted 

in the complaint that the defendant physicians were negligent because they incorrectly 

assumed that Decedent‟s religious beliefs guaranteed that he would reject available lifesaving treatment and because they failed to ask Decedent or Ms. Piper for permission to 

administer such treatment. 

According to the complaint, Ms. Piper purportedly complied with the notice 

provisions contained in Tennessee Code Annotated § 29-26-121 by delivering the 

required notices to Defendants at least sixty days before the filing of the complaint. Ms. 

Piper attached copies of undated postal receipts addressed to each defendant. However, 

the record demonstrates that Ms. Piper did not attach to the complaint a certificate of 

mailing from the United States Postal Service, an affidavit regarding her mailing of the 

notices, or copies of the notices. See Tenn. Code Ann. § 29-26-121(a)(3), (4) (Supp. 

2016).

2

Dr. Kabasakal filed a motion to dismiss on November 30, 2015, asserting that Ms. 

Piper had failed to comply with the mandatory pre-suit notice requirements contained in 

Tennessee Code Annotated § 29-26-121. Dr. Kabasakal asserted that Ms. Piper failed to 

provide the required HIPAA-compliant medical authorization and failed to provide a list 

of other health care providers receiving notice. Dr. Kabasakal also complained that Ms. 

Piper failed to demonstrate that the notice was timely sent because the letter and the 

 

1 Dr. Kabasakal, Dr. Zeino, and CMC are all named defendants in this action and shall hereafter be 

referred to collectively as “Defendants.”

2

Inasmuch as no party has raised an issue with regard to these deficiencies, we decline to further address 

these additional omissions on appeal.
3

postal receipts attached to the complaint were undated. In support of the motion, Dr. 

Kabasakal attached an affidavit, wherein she stated that the only document she received 

from Ms. Piper or her counsel prior to the filing of the complaint was the undated notice 

letter. Dr. Kabasakal attached the undated notice letter she had received to evince that 

plaintiff failed to identify other health care providers.

CMC and Dr. Zeino filed similar motions to dismiss on December 2, 2015, and 

December 3, 2015, respectively. The trial court conducted a hearing regarding the 

pending motions on January 29, 2016. Following the hearing, the court entered an order 

granting the motions to dismiss on February 12, 2016. In this order, the court found that 

Ms. Piper had failed to comply with Tennessee Code Annotated § 29-26-121(a)(2)(D) 

and (E) and that such failure was fatal to her claims. Ms. Piper timely appealed.

II. Issue Presented

Ms. Piper presents the following issue for our review, which we have restated 

slightly:

Whether the trial court erred by dismissing Ms. Piper‟s health care 

liability action for failure to comply with the notice requirements contained 

in Tennessee Code Annotated § 29-26-121. 

III. Standard of Review

Our Supreme Court has elucidated the following regarding the standard of review 

applicable to a motion to dismiss a health care liability action based upon the plaintiff‟s 

noncompliance with Tennessee Code Annotated § 29-26-121:

The proper way for a defendant to challenge a complaint‟s 

compliance with Tennessee Code Annotated section 29-26-121 and 

Tennessee Code Annotated section 29-26-122 is to file a Tennessee Rule of 

Procedure 12.02 motion to dismiss. In the motion, the defendant should 

state how the plaintiff has failed to comply with the statutory requirements 

by referencing specific omissions in the complaint and/or by submitting 

affidavits or other proof. Once the defendant makes a properly supported 

motion under this rule, the burden shifts to the plaintiff to show either that 

it complied with the statutes or that it had extraordinary cause for failing to 

do so. Based on the complaint and any other relevant evidence submitted 

by the parties, the trial court must determine whether the plaintiff has 

complied with the statutes. If the trial court determines that the plaintiff has 

not complied with the statutes, then the trial court may consider whether the 
4

plaintiff has demonstrated extraordinary cause for its noncompliance. If the 

defendant prevails and the complaint is dismissed, the plaintiff is entitled to 

an appeal of right under Tennessee Rule of Appellate Procedure 3 using the 

standards of review in Tennessee Rule of Appellate Procedure 13. If the 

plaintiff prevails, the defendant may pursue an interlocutory appeal under 

either Tennessee Rule of Appellate Procedure 9 or 10 using the same 

standards.

Because the trial court‟s denial of the Defendants‟ motion involves a 

question of law, our review is de novo with no presumption of correctness. 

Graham v. Caples, 325 S.W.3d 578, 581 (Tenn. 2010). The question of 

whether [the plaintiff] has demonstrated extraordinary cause that would 

excuse compliance with the statutes 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. Starr v. Hill, 353 S.W.3d 478, 481-82 (Tenn. 

2011). We review the trial court‟s decision to excuse compliance under an 

abuse of discretion standard. “A court abuses its discretion when it applies 

an incorrect legal standard or its decision is illogical or unreasonable, is 

based on a clearly erroneous assessment of the evidence, or utilizes 

reasoning that results in an injustice to the complaining party.” Wilson v. 

State, 367 S.W.3d 229, 235 (Tenn. 2012) (citing Wright ex rel. Wright v. 

Wright, 337 S.W.3d 166, 176 (Tenn. 2011)). We examine the legal 

sufficiency of the complaint and do not consider the strength of the 

plaintiff‟s evidence; thus, all factual allegations in the complaint are 

accepted as true and construed in flavor of the plaintiff. Lind v. Beaman 

Dodge, Inc., 356 S.W.3d 889, 894 (Tenn. 2011).

* * *

The leading rule governing our construction of any statute is to ascertain 

and give effect to the legislature‟s intent. Walker v. Sunrise Pontiac-GMC 

Truck, Inc., 249 S.W.3d 301, 309 (Tenn. 2008). To that end, we start with 

an examination of the statute‟s language, Curtis v. G.E. Capital Modular 

Space, 155 S.W.3d 877, 881 (Tenn. 2005), presuming that the legislature 

intended that each word be given full effect. Lanier v. Rains, 229 S.W.3d 

656, 661 (Tenn. 2007). When the import of a statute is unambiguous, we 

discern legislative intent “from the natural and ordinary meaning of the 

statutory language within the context of the entire statute without any 

forced or subtle construction that would extend or limit the statute‟s 

meaning.” State v. Flemming, 19 S.W.3d 195, 197 (Tenn. 2000); see also 
5

In re Adoption of A.M.H., 215 S.W.3d 793, 808 (Tenn. 2007) (“Where the 

statutory language is not ambiguous . . . the plain and ordinary meaning of 

the statute must be given effect.”) (citing Calaway ex rel. Calaway v. 

Schucker, 193 S.W.3d 509, 516 (Tenn. 2005)). The construction of a 

statute is also a question of law which we review de novo without any 

presumption of correctness. Lind, 356 S.W.3d at 895.

Myers v. AMISUB (SFH), Inc., 382 S.W.3d 300, 307-08 (Tenn. 2012). 

In Arden v. Kozawa, 466 S.W.3d 758, 763 (Tenn. 2015), our Supreme Court 

clarified:

The content and affidavit requirements of Tennessee Code 

Annotated sections 29-26-121(a)(2), (a)(3), and (a)(4) are not mandatory, 

but directory, and can be achieved through substantial compliance. See

Thurmond v. Mid-Cumberland Infectious Disease Consultants, PLC, 433 

S.W.3d 512, 520 (Tenn. 2014) (allowing substantial compliance with the 

affidavit requirement under Tennessee Code Annotated sections 29-26-

121(a)(3)(B) and (a)(4)); Stevens ex rel. Stevens v. Hickman Comm. Health 

Care Servs., Inc., 418 S.W.3d 547, 555 (Tenn. 2013) (allowing substantial 

compliance with the HIPAA form requirement under Tennessee Code 

Annotated section 29-26-121(a)(2)(E)). “[U]nless strict compliance with a 

notice content requirement „is essential to avoid prejudicing an opposing 

litigant,‟ substantial compliance with a content requirement will suffice.” 

Thurmond, 433 S.W.3d at 520 (quoting Stevens, 418 S.W.3d at 555).

The High Court has also explained that to determine whether a plaintiff has substantially 

complied with a statutory requirement, “a reviewing court should consider the extent and 

significance of the plaintiff‟s errors and omissions and whether the defendant was 

prejudiced by the plaintiff‟s noncompliance.” Stevens ex rel. Stevens v. Hickman Comm. 

Health Care Servs., Inc., 418 S.W.3d 547, 556 (Tenn. 2013).

III. Notice Requirements of Tennessee Code Annotated § 29-26-121

Tennessee Code Annotated § 29-26-121 provides in pertinent part:

(a)(1) 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.
6

(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.

* * *

(b) 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.

In this case, the trial court determined that Ms. Piper had failed to comply with 

Tennessee Code Annotated § 29-26-121(a)(2)(D) and (E) and that such failure was fatal 

to her claims. In her appellate brief, Ms. Piper concedes that she did not list all medical 

providers on her pre-suit notice letters and did not include with the notice letters a 

“HIPAA compliant medical authorization permitting the provider receiving the notice to 

obtain complete medical records from each other provider being sent a notice.” See

Tenn. Code Ann. § 29-26-121(a)(2)(D) and (E). Ms. Piper argues, however, that (1) her 

provision of a medical release to the defendant physicians a few months before the presuit notice letters were sent should constitute substantial compliance and (2) the failure to 

attach the required medical authorization to the pre-suit notice letters or to list the names 

of all medical providers on the notice letters should be considered “excusable neglect.”
7

As our Supreme Court has explained:

[T]the requirements of Tenn. Code Ann. § 29-26-121(a)(2)(D) [list of 

names and addresses of all providers being sent notice] and Tenn. Code 

Ann. § 29-26-121(a)(2)(E) [HIPAA-compliant medical authorization] 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.

Stevens, 418 S.W.3d at 554. Therefore, Ms. Piper‟s failure to provide to Defendants (1) a 

list of other medical providers being sent notice and (2) a HIPAA-compliant medical 

authorization would prohibit Defendants from obtaining medical records from other codefendants and utilizing their own records to mount a defense. Id.; see also Roberts v. 

Prill, No. E2013-02202-COA-R3-CV, 2014 WL 2921930, at *5 (Tenn. Ct. App. June 26, 

2014) (“Defendants were not legally authorized to use the pertinent medical records to 

mount a defense, despite the fact that the records may have already been in their 

possession.”) (emphasis in original). We conclude that Ms. Piper‟s errors and omissions 

in this matter were significant and that the Defendants were prejudiced thereby.

Ms. Piper asserts that she provided Dr. Kabasakal and Dr. Zeino with a HIPAAcompliant medical authorization prior to the transmittal of the pre-suit notice letters.3

 The 

record contains a copy of these disclosure authorizations, bearing a date of March 1, 

2015, demonstrating that they were not included with the pre-suit notices as required by 

the statute. Assuming, arguendo, that mailing a medical authorization to a medical 

defendant some months prior to the actual dispatch of a pre-suit notice letter could 

constitute substantial compliance with Tennessee Code Annotated § 29-26-121(a)(2)(E), 

we determine that the authorizations sent by Ms. Piper were nonetheless noncompliant. 

The disclosure authorizations signed by Ms. Piper allowed disclosure of Decedent‟s 

protected health information only to Ms. Piper‟s counsel. The precedent on this issue is 

clear that such a limited authorization does not satisfy the requirements of the statute 

because it does not allow the health care providers to obtain medical records from one 

another and does not allow the health care providers to use the medical records in their 

own possession to prepare a defense. See Stevens, 418 S.W.3d at 554; Roberts, 2014 WL 

2921930, at *5. Furthermore, Defendants were also provided no means of learning the 

identity of any potential co-defendants. We determine this argument to be unavailing.

Ms. Piper also argues that her noncompliance with the statute should be 

considered “excusable neglect” because the attorney who prepared the notices was 

 

3 The record is devoid of a medical disclosure authorization directed to CMC.
8

inexperienced and because allegedly the actions of the defendants resulted in Decedent‟s 

death. In support of her argument, Ms. Piper relies upon Tennessee Rule of Civil 

Procedure 60. We note, however, that no motion seeking Rule 60 relief was ever filed 

with the trial court. Furthermore, at the hearing conducted on January 29, 2016, 

regarding the Defendants‟ motions to dismiss, there was no discussion by Ms. Piper‟s 

counsel of Rule 60 or any alleged excusable neglect. We also note that Tennessee Code 

Annotated § 29-26-121(b) provides trial courts with discretion to excuse compliance only 

for “extraordinary cause shown” and makes no mention of excusable neglect. Despite 

this provision in the statute, Ms. Piper raised no issue with regard to extraordinary cause 

at the trial court level.

4

 We therefore conclude that this issue has been waived. See 

Simpson v. Frontier Cmty. Credit Union, 810 S.W.2d 147, 153 (Tenn. 1991) (“[T]his 

issue was not raised in the trial court, and issues not raised in the trial court cannot be 

raised for the first time on appeal.”).

IV. Conclusion

For the foregoing reasons, we affirm the trial court‟s dismissal of Ms. Piper‟s 

health care liability claims against all Defendants for failure to substantially comply with 

the requirements of Tennessee Code Annotated § 29-26-121(a)(2)(D) and (E). Costs on 

appeal are taxed to the appellant, Roberta Piper. We remand this case to the trial court 

for collection of costs assessed below. 

_________________________________ 

THOMAS R. FRIERSON, II, JUDGE

 

4 A patient‟s death has specifically been found not to constitute extraordinary cause, see Stevens, 418 

S.W.3d at 559, as has an attorney‟s oversight, see Hawkins v. Martin, No. W2013-02102-COA-R3-CV, 

2014 WL 2854256, at *9 (Tenn. Ct. App. June 23, 2014), even when the attorney was faced with 

somewhat stressful conditions.