Gilmore v. Roane County et al

Filing 66

ORDER as follows: 1) Defendants' Motions to Dismiss 8 and 24 and Motion for Summary Judgment 48 as it pertains to Plaintiff's medical malpractice claim against the Roane County government and the medic defendants is hereby GRANTED; 2) Defendants' Motion to Strike 41 is hereby DENIED; and Plaintiffs' Rule 41 Motion to allow her to file a limited nonsuit 54 is DENIED. Signed by District Judge David L Bunning on October 25, 2013. (AYB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
at KNOXVILLE
CIVIL ACTION NO. 13-124-DLB-HBG
SHASTA LASHAY GILMORE, et al.

vs.

PLAINTIFFS

MEMORANDUM ORDER

ROANE COUNTY, TENNESSEE
GOV’T, et al.

DEFENDANTS

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This matter is before the Court on several related motions filed by Defendants
Roane County, David Randle, Robert Cooker, Mike Carter, and Mike Myers (the “medic
defendants”). These motions include two motions to dismiss (Docs. # 8 and 24), a motion
to strike (Doc. # 41), and a motion for summary judgment (Doc. # 48). In the motions to
dismiss, Defendants argued that Plaintiff’s medical malpractice claim against the Roane
County, Tennessee government and the Emergency Medical Technician (EMT) Defendants
should be dismissed with prejudice because Plaintiff failed to include a good faith certificate
with her Complaint, as required by Tenn. Code Ann. § 29-26-122. (Docs. # 8 and 24).
Defendants’ subsequently filed motion for summary judgment asserts that they are entitled
to summary judgment on that same claim because Plaintiff also failed to comply with the
notice requirements imposed by Tenn. Code Ann. § 29-26-121. (Doc. # 48).
On September 26, 2013, the Court held a telephonic conference to take up these
motions.

John M. Wolfe, Jr. represented the Plaintiffs and Jeffrey R. Thompson

represented the Defendants. At the conclusion of the conference the Court determined that
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it required more information from Plaintiff’s counsel in order to adjudicate the motions and
ordered Plaintiff’s counsel to file an affidavit demonstrating extraordinary cause for his
failure to comply with the applicable Tennessee statutes. Plaintiff’s counsel having now
filed his affidavit (Doc. # 63), and the Defendants having filed their response (Doc. # 65),
the motions are ripe for review.
The statutes cited in Defendants’ Motions are part of the Tennessee Health Care
Liability Act (THCLA), which imposes certain procedural requirements on plaintiffs bringing
medical malpractice actions such as the instant case. See Tenn. Code Ann. § 29-26-115
et seq. Section 29-26-122, which forms the basis of Defendants’ Motions to Dismiss,
requires plaintiffs to file a certificate of good faith along with a complaint. Tenn. Code Ann.
§ 29-26-122. This certificate must state that the plaintiff conferred with an expert, who in
turn signed a written statement confirming that they are competent to express an opinion
and that they believe there is a good faith basis to maintain the action. Id. Defendants’
Motion for Summary Judgment relies on Section 29-26-121, which requires a plaintiff
asserting a potential claim for health care liability to provide “written notice of the potential
claim to each health care provider who will be a named defendant at least sixty days before
the filing of a complaint.” Tenn. Code Ann. § 29-26-121. Both statutes require strict
compliance with the listed procedural steps. Myers v. AMISUB (SFH), Inc., 382 S.W.3d
300, 310-12 (Tenn. 2012); see also Moses v. Dirghangi, No. W2011-02403-COA-R3-CV,
2013 WL 5519506 at *9 (Tenn. App. Oct. 3, 2013). Failure to comply with these steps must
result in dismissal, unless the court exercises its discretion and excuses compliance “for
extraordinary cause shown.” Myers, 382 S.W. at 310-12; Moses, 2013 WL 5519506 at *9.

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Having reviewed Plaintiff’s Affidavit (Doc. # 63), the Court concludes that Plaintiff
has not demonstrated extraordinary cause to excuse her failure to comply with the
THCLA’s procedural requirements. Instead of providing new information for the Court’s
consideration, Plaintiff’s affidavit merely restates facts and allegations that are already
contained in the record. Because Plaintiff did not comply with THCLA requirements and
has not shown extraordinary cause for her non-compliance, the Court must grant
Defendant’s Motion for Summary Judgment (Doc. # 48) as it pertains to Plaintiff’s medical
malpractice claim against the Roane County government and the EMT Defendants.1 While
the Court recognizes that granting Defendants’ Motions leads to a harsh result, it is bound
to follow the directives of the THCLA.2 Plaintiff has had ample opportunity to persuade the
Court that her situation qualifies as an exception to the rule, and has repeatedly failed to
do so.
Accordingly, IT IS ORDERED as follows:
1.

Defendants’ Motions to Dismiss (Docs. # 8 and 24) and Motion for Summary

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Since Defendants had multiple motions pending on overlapping grounds, it is important
to note that the Court reaches the same result by entertaining either the Defendants’ Motions to
Dismiss or the Defendants’ Motion for Summary Judgment because Plaintiff failed to comply
with the THCLA sections raised in both Motions.
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Although this question of statutory interpretation has not yet been litigated, Tennessee
case law indicates that Section 29-26-121 requires dismissal for non-compliance but does not
bar re-filing. See Hinkle v. Kindred Hosp., No. M2010-02499-COA-R3-CV, 2012 WL 3799215 at
* 4 (Tenn. App. Aug. 31, 2012) (noting but not reviewing the trial court’s decision that, because
Section 29-26-121 contains no dismissal with prejudice language, it had the implied power
under Tenn. R. Civ. P. 41.02(3) to dismiss a medical malpractice claim without prejudice). The
language of Section 29-26-122, by contrast, specifically mandates dismissal with prejudice. In
this case, non-compliance with either provision leads to the same result. If Plaintiff’s claim was
dismissed due to non-compliance with Section 29-26-121, she would be barred from re-filing
because the applicable Tennessee statute of limitations has passed. See Tenn. Code Ann. §
29-26-116(a)(1) (setting a one year statute of limitations). Thus, dismissal of the medical
malpractice claim pursuant to either Section will operate as a dismissal with prejudice.

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Judgment (Doc. # 48) as it pertains to Plaintiff’s medical malpractice claim against the
Roane County government and the medic defendants is hereby GRANTED;
2.

Defendants’ Motion to Strike (Doc. # 41) is hereby DENIED;

3.

Plaintiffs’ Rule 41 Motion to allow her to file a limited nonsuit (Doc. # 54) is

DENIED.
This 25th day of October, 2013.

G:\DATA\ORDERS\Knoxville\13-124 Order Granting MSJ.wpd

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