Guthrie v. Ball et al

Filing 37

ORDER granting 6 Motion for Summary Judgment. Signed by Magistrate Judge Susan K Lee on 7/5/12. (GRE, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT CHATTANOOGA
KAREN GUTHRIE, Individually and on
behalf of the estate of DONALD GUTHRIE,
Plaintiff,
v.
GREGORY BALL, M.D., et al.,
Defendants.

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Case No. 1:11-cv-333

MEMORANDUM AND ORDER
Before the Court is a motion for summary judgment [Doc. 6] filed by Defendant Melissa
Rodgers, P.A. (“Rodgers” or “Defendant Rodgers”). Defendant Rodgers claims that Plaintiff failed
to comply with the notice requirement of the Tennessee Medical Malpractice Act (“TMMA”) prior
to filing the instant case and, therefore, the claims against her must be dismissed.
For the reasons explained below, Defendant Rodgers’ motion for summary judgment [Doc.
6] will be GRANTED and the claims against Defendant Rodgers will be DISMISSED WITHOUT
PREJUDICE.
I.

FACTS AND PROCEDURAL BACKGROUND
Plaintiff alleges in the complaint that she is the surviving spouse of Donald Guthrie

(“Decedent”), who was a patient of Defendant Rodgers and Defendant Gregory Ball, M.D.
(“Defendant Ball”) [Doc. 1 at PageID#: 1-2]. Plaintiff alleges that Decedent was given a
prescription for a 75 mcg Watson fentanyl patch while under the care of Defendant Rodgers and
Defendant Ball and was wearing the patch at the time of his death on March 25, 2010 [id. at
PageID#: 2]. A toxicology report showed that Decedent had a fatal concentration of fentanyl in his
blood at the time of his death and the cause of death was fentanyl toxicity [id. at PageID#: 2-3].

Plaintiff asserts negligence claims against both Defendants and alleges that Defendants were
negligent in prescribing a 50 mcg fentanyl patch when Decedent did not have the tolerance for the
50 mcg patch, and were further negligent in increasing the dose to 75 mcg when Decedent was
experiencing shortness of breath and fatigue on the 50 mcg patch [id. at PageID#: 3-4]. Plaintiff also
asserts a loss of consortium claim [id. at PageID#: 4-5].
Included in the complaint is a certification that Plaintiff has complied with the requirements
of the TMMA by sending Defendants notice of the impending lawsuit at least 60 days before filing
and attaching those documents and a Certificate of Good Faith to the complaint [Doc. 1 at PageID#:
5; Doc. 1-1; Doc. 1-2]. Plaintiff further notes in the complaint that she is invoking the Tennessee
Savings Statute because she previously filed suit against these Defendants, along with the
manufacturer of the fentanyl patch at issue, Watson Pharmaceuticals, Inc. and other Watson entities,
in Civil Case No. 1:11-cv-109 (“the Watson case”) and voluntarily dismissed them from that action
on October 5, 2011 and October 13, 2011 [Doc. 1 at PageID#: 5-6].1 This action was filed on
November 14, 2011, and Defendant Rodgers filed her motion for summary judgment on December
27, 2011 [Doc. 6].

1

Plaintiff originally filed suit in the Watson case only against the Watson Defendants and
later filed an amended complaint adding Defendant Rodgers and Defendant Ball [Civil Case No.
1:11-cv-109, Doc. 38]. After dismissing these two Defendants from the Watson case and initiating
the instant case against Defendants Rodgers and Ball, Plaintiff filed a motion to consolidate this case
with the Watson case [Doc. 23]. The same day the motion was filed, the parties consented to the
undersigned [Doc. 24]. Because the two cases were assigned to different judges and the Watson
case was the earlier-filed of the two, Plaintiff was advised of the need to file an appropriate motion
in the Watson case. Plaintiff never filed such a motion, and the Watson case was stayed pending
Plaintiff’s motion to transfer the Watson case to the Northern District of Illinois to join in a
Multidistrict Litigation proceeding as to the Watson fentanyl patches [Civil Case No. 1:11-cv-109,
Doc. 57]. Because Plaintiff failed to file a motion for consolidation in the Watson case and failed
to file a supplemental brief on consolidation as ordered by the Court, the motion for consolidation
was denied [Doc. 31].
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II.

STANDARD OF REVIEW
Summary judgment is mandatory where “there is no genuine dispute as to any material fact”

and the moving party “is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A
“material” fact is one that matters—i.e., a fact that, if found to be true, might “affect the outcome”
of the litigation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The applicable
substantive law provides the frame of reference to determine which facts are material. Anderson,
477 U.S. at 248. A “genuine” dispute exists with respect to a material fact when the evidence would
enable a reasonable jury to find for the non-moving party. Id.; National Satellite Sports, Inc. v.
Eliadis Inc., 253 F.3d 900, 907 (6th Cir. 2001). In determining whether a dispute is “genuine,” the
court cannot weigh the evidence or determine the truth of any matter in dispute. Id. at 249. Instead,
the court must view the facts and all inferences that can be drawn from those facts in the light most
favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986); National Satellite Sports, 253 F.3d at 907. A mere scintilla of evidence is not
enough to survive a motion for summary judgment. Anderson, 477 U.S. at 252; McLean v. 988011
Ontario, Ltd., 224 F.3d 797, 800 (6th Cir. 2000).
The moving party bears the initial burden of demonstrating no genuine issue of material fact
exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Moore v. James, No. 7:09-CV-98 (HL),
2011 WL 837179, at *1 (M.D. Ga. Feb. 2, 2011). The movant must support its assertion that a fact
is not in dispute by “citing to particular parts of materials in the record.” Fed. R. Civ. P. 56(c). If
the moving party carries this burden, the opposing party must show that there is a genuine dispute
by either “citing to [other] particular parts of materials in the record” or “showing that the materials
cited do not establish the absence . . . of a genuine dispute.” Id. In reply, the movant may then

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attempt to show that the materials cited by the nonmovant “do not establish the . . . presence of a
genuine dispute.” Id. Either party may also attempt to challenge the admissibility of its opponent’s
evidence. Id.
The court is not required to consider materials other than those specifically cited by the
parties, but may do so in its discretion. Id. If a party fails to support its assertion of fact or to
respond to the other party’s assertion of fact, the court may “(1) give an opportunity to properly
support or address the fact; (2) consider the fact undisputed for purposes of the motion; (3) grant
summary judgment if the motion and supporting materials . . . show that the movant is entitled to
it; or (4) issue any other appropriate order.” Fed. R. Civ. P. 56(e).
III.

ANALYSIS
Defendant Rodgers argues that Plaintiff’s claims against her fail as a matter of law because

Plaintiff failed to properly provide Defendant Rodgers with notice pursuant to the applicable section
of the TMMA, Tennessee Code Annotated § 29-26-121 [Doc. 10 at PageID#: 80]. Rodgers asserts
that noncompliance with the statute is only excused for extraordinary cause and, without a showing
of extraordinary cause, noncompliance with the notice requirement results in dismissal [id. at
PageID#: 82-83]. Rodgers claims that Plaintiff did not comply with the notice requirement because
she did not personally serve Rodgers with notice, did not personally serve any individual at Rodgers’
current practice location with notice, and did not mail a notice to any address located in the city
identified on the Tennessee Department of Health website [id. at PageID#: 83-84]. Specifically,
Rodgers notes that Plaintiff mailed notice to her former Tennessee employer on March 24, 2011, but
she did not receive personal service because she was no longer employed in Tennessee and had
instead moved to San Antonio, Texas [id. at PageID#: 84]. Rodgers contends that no other notices

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were mailed to her attention and she never received notice of Plaintiff’s intent to file a medical
malpractice action against her [id.]. Instead, Rodgers only learned of this case when she was served
with the Complaint on December 5, 2011 [id.]. Rodgers argues there is no extraordinary cause for
Plaintiff’s noncompliance with the notice requirement because Plaintiff was never served with notice
of either case in which she was named as a Defendant and Plaintiff could have called Rodgers’
former employer or consulted the Department of Health website to verify Rodgers’ location before
sending notice [id. at PageID#: 85]. Rodgers’ affidavit in support of her motion states that she
moved to San Antonio, Texas on December 27, 2010, never received notice of the Watson case until
she was served with the amended complaint on October 6, 2011, and never received notice of the
instant case until she was served with the complaint on December 5, 2011 [Doc. 9 at PageID#: 7374].
Plaintiff makes three arguments in response, first asserting that Defendant Rodgers had
actual notice of the claim more than 60 days before this case was filed and the pre-suit notice
requirement has therefore been satisfied, in reliance on this Court’s decision in Jenkins v. Marvel,
683 F. Supp. 2d 626 (E.D. Tenn. 2010) [Doc. 18 at PageID#: 128]. Plaintiff alleges Rodgers had
actual notice of the claims as of August 4, 2011, when Plaintiff sent her a courtesy copy of the
amended complaint in the Watson case [id. at PageID#: 130]. Second, Plaintiff argues she complied
with the notice requirement because Defendant Rodgers failed to maintain a business address with
the Tennessee Department of Health website, and the only address available for notice was the
address where Defendant Rodgers had treated Decedent [id. at PageID#: 128]. Plaintiff asserts that
Defendant Rodgers only has the city, state and zip code currently listed on the website, and the zip
code is actually incorrect [id. at PageID#: 131-32]. Plaintiff further argues that the statute is silent

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as to where notice should be mailed when the provider does not maintain an address on the website
and submits that under those circumstances, notice is properly sent to the location where the
provider last provided a medical service to the patient [id. at PageID#: 134-35]. Finally, Plaintiff
argues that even if the Court finds she has not complied with the notice requirement, the Court
should excuse noncompliance on the basis of extraordinary cause because of the unique
circumstances present in this case [id. at PageID#: 136].
The applicable TMMA statute provides in relevant part as follows:2
(a)(1) Any person, or that person’s authorized agent, 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.
...
(3) The requirement of service of written notice prior to suit is
deemed satisfied if, within the statutes of limitation and statutes of
repose applicable to the provider, one of the following occurs, as
established by the specified proof of service, which shall be filed with
the complaint:
...
(B) Mailing of the notice:
(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

2

Subsection (a)(3)(A) does not apply in this case because it requires personal service
established by an affidavit and Plaintiff has provided no such proof of personal service. Likewise,
subsection (a)(3)(B)(ii) does not apply because it pertains to health care providers that are
corporations or other business entities.
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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. . .
(4) Compliance with the provisions of 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.
(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.
Tenn. Code Ann. § 29-26-121.
The time line of events relevant to notice provided to Defendant Rodgers is as follows:
March 25, 2010:
Decedent Donald Guthrie died
December 27, 2010: Defendant Rodgers moved to Texas
March 24, 2011:
Plaintiff attempted to mail notice to Rodgers’
old employer in Tennessee (where she treated
Decedent), Consultants in Pain Management
April 25, 2011:
Plaintiff filed the Watson case
July 6, 2011:
Plaintiff filed first amended complaint adding
Defendants Rodgers and Ball to the Watson
case
August 4, 2011:
Defendant Rodgers allegedly had actual
notice of the claims asserted against her3

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Defendant has filed an affidavit contesting that Rodgers had actual notice of the claims as
of this date, as she was not sent the complaint at that time [Doc. 20].
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October 6, 2011:

Defendant Rodgers was served in Texas with
the amended complaint in the Watson case
October 13, 2011:
Plaintiff voluntarily dismissed Defendant
Rodgers from the Watson case
November 14, 2011: Plaintiff filed this case
December 5, 2011: Defendant Rodgers was served with the
complaint in this case
Notice was only sent, therefore, on March 24, 2011 (in preparation for the filing of the amended
complaint in the Watson case), pursuant to the provision that requires notice before the statute of
limitations expires as to the provider. See Tenn. Code Ann. §§ 29-26-121(a)(3); 29-26-116(a)(1).4
Because an individual at Consultants at Pain Management signed for the notice, the notice was not
returned to Plaintiff as undelivered.
Plaintiff’s first argument, relying on Jenkins, is without merit. The situation in this case is
not analogous to the situation in Jenkins, in which the first lawsuit had been filed prior to the
enactment of the notice requirement, i.e., at a time when notice was not required, nonsuited, and the
second lawsuit was refiled within a year and only days after the enactment of the new requirements.
The unique situation in Jenkins is simply not duplicated here, where the first and second lawsuits
were both filed well after the TMMA amendments went into effect. As the Tennessee Court of
Appeals observed in Myers v. AMISUB (SFH), Inc., No. W2010-00837-COA-R9CV, 2011 WL
664753 (Tenn. Ct. App. Feb. 24, 2011), Jenkins is distinguishable from a case where the voluntary

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Defendant argues Plaintiff had knowledge that Defendant Rodgers was not employed by
Consultants in Pain Management as of August 9, 2011 and could have sent notice to her in Texas
at any time after that date [Doc. 21 at PageID#: 174]. As noted here, however, the statute of
limitations--and the available time frame within which to send notice–apparently expired as of
March 25, 2011, one year after Decedent’s death. Although the applicable statute also provides that
“[i]n the event the alleged injury is not discovered within such one (1) year period, the period of
limitation shall be one (1) year from the date of such discovery,” Plaintiff does not appear to be
asserting that the statute of limitations began to run from any date other than Decedent’s death on
March 25, 2010.
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dismissal in the original lawsuit came after the enactment of the amendments, and noncompliance
with the notice requirement in that circumstance would not be excused. Id. at *8-9. The fact that
Defendant Rodgers may have had actual notice of the claims as early as August 4, 2011 does not
mean any noncompliance with the notice requirements on Plaintiff’s part is irrelevant, as the
statutory requirements are clear, were in effect for years before Plaintiff filed the Watson case, and
cannot be excused by reliance on Jenkins.
Turning to Plaintiff’s other arguments, the statute requires notice to be sent to the address
on the Department of Health website as well as the current business address, if different. Although
there is no Tennessee case law specifically addressing the issue here, where it appears Defendant
Rodgers may not have always maintained a complete address on the Tennessee Department of
Health website, Tennessee courts have taken a hard line with the TMMA notice requirement,
finding, for example, no cause to excuse noncompliance with the notice requirement when the
complaint was filed 53 days after notice was provided instead of 60 days. See DePue v. Schroeder,
No. E2010-00504-COA-R9-CV, 2011 WL 538865 (Tenn. Ct. App. Feb. 15, 2011). In this case,
Defendant Rodgers has raised an issue with respect to Plaintiff’s compliance with the statute and
Plaintiff bears the burden of establishing that she did indeed comply with the statute.5 It is
undisputed that Plaintiff sent notice only to the address for Consultants in Pain Management, where
Defendant Rodgers treated the Decedent, and did not send notice to Defendant Rodgers at any other
address.

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Tenn. Code Ann. § 29-26-121(b) states that “[i]f 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.”
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Defendant claims “[t]he address listed on the Rodgers Notice is neither the ‘address listed
for [Rodgers] on the Tennessee department of health web site’ nor ‘[Rodgers’] current business
address’” [Doc. 8 at PageID#: 71]. Plaintiff asserts she sent notice to the only address available for
Defendant Rodgers [Doc. 18 at PageID#: 129] and the affidavit Plaintiff submits in support of her
response states the address on the notice, where Defendant Rodgers treated Decedent, “was the only
available address for Defendant because Defendant did not (and still does not) maintain an address
on the website of the Tennessee Board of Medical Examiners” [Doc. 18-1 at PageID#: 139]. This
information focuses on what the Department of Health website says now, and what Defendant
Rodgers’ addresses are now, but Plaintiff has not affirmatively established that she reviewed the
Department of Health website in March 2011 prior to sending notice, or that she conducted any other
investigation in March 2011 to determine Defendant Rodgers’ current business address prior to
sending notice to Consultants in Pain Management.
Indeed, neither party has provided the Court with information regarding what address, if any,
was on the Department of Health website as of March 24, 2011, and it may not be possible to obtain
that information at this time. The Court only knows for certain that Plaintiff mailed notice to
Consultants in Pain Management, which was not Defendant Rodgers’ current business address as
of March 24, 2011. Plaintiff has not created any genuine issue of material fact with respect to the
notice requirement because she has not stated affirmatively that she reviewed the Department of
Health website in March 2011 and sent notice to the address listed on the website or, alternatively,
that only Chattanooga, Tennessee was listed on the website and Plaintiff assumed Defendant
Rodgers’ business address was Consultants in Pain Management.

Plaintiff also does not

affirmatively verify that she performed any investigation to determine Defendant Rodgers’ location

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or current business address, in the event that a different city and state were listed on the website.
Instead, Plaintiff equivocally and vaguely states that the address for Consultants in Pain
Management was the only address “available” for Defendant Rodgers at the time. As such, Plaintiff
has not met her burden of establishing compliance with the statute and has not met her burden of
establishing an issue of material fact to preclude summary judgment.
Although the notice requirement statute itself is silent as to the effect of noncompliance,
Tennessee courts have stated that “the legislature intended for compliance to be mandatory” and,
therefore, “failure to comply with the notice requirements . . . will result in dismissal.” DePue, 2011
WL 538865, at *8. The Court can only excuse noncompliance with the notice requirements for
extraordinary cause.

See Tenn. Code Ann. § 29-26-121(b).

Plaintiff argues the unique

circumstances of the case are sufficient to establish extraordinary cause, but there is nothing
particularly extraordinary about the circumstances presented here, as review of the website and a
simple investigation could have provided Plaintiff with the proper address or addresses for notice.
Plaintiff’s apparent failure to take this action does not excuse noncompliance, as the DePue court
held that simple attorney oversight does not constitute extraordinary cause. DePue, 2011 WL
538865, at *8.
As such, the Court concludes that Plaintiff has not established compliance with the
applicable notice requirement statute and has not established an issue of material fact with respect
to compliance. The Court further concludes that Plaintiff’s noncompliance with the statute is not
excusable because there is no extraordinary cause under the circumstances present in this case.
Accordingly, Defendant Rodgers’ motion for summary judgment will be GRANTED.

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IV.

CONCLUSION
For the reasons outlined above, Defendant Rodgers’ motion for summary judgment [Doc.

6] is GRANTED and the claims against Defendant Rodgers are DISMISSED WITHOUT
PREJUDICE. The case will proceed as to the claims against Defendant Ball.
SO ORDERED.
ENTER:
s/ fâátÇ ^A _xx
SUSAN K. LEE
UNITED STATES MAGISTRATE JUDGE

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