Moses v. State, No. W2025-00386-COA-R3-CV (Feb. 25, 2026)

Case details
Full caption
Pamela MOSES v. STATE of Tennessee
Country
United States
Jurisdiction
Tennessee (TN)
Court
Tennessee Supreme Court
Decided
Feb. 25, 2026
Disposition
Motion Denied
Moses V. State, Slip Copy (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works.12026 WL 518478Only the Westlaw citation is currently available.SEE COURT OF APPEALS RULES 11 AND 12Court of Appeals of Tennessee.Pamela MOSESV.STATE of TennesseeNo. W2025-00386-COA-R3-CV|Assigned on Briefs January 5, 2026|FILED 02/25/2026Appeal from the Claims Commission for the Stateof Tennessee, No. 0546-GL-24-0310908-001, James A.Hamilton, III, CommissionerAttorneys and Law FirmsPamela Moses, Memphis, Tennessee, Pro Se appellant.Heather C. Colturi, Associate General Counsel, theUniversity of Tennessee, Office of the General Counsel, forthe appellee, the State of Tennessee.D. Kelly Thomas, Jr., Sp. J., delivered the opinion of the court,in which J. Steven Stafford, P.J., W.S., and Jeffrey Usman, J.,joined.OPINIOND. KELLY THOMAS, JR., SPECIAL JUDGEBackground*1 This appeal concerns a health care liability lawsuit.Pamela Moses (“Moses”) sued the State of Tennessee (“theState”) in the Claims Commission after receiving dentaltreatment from the University of Tennessee Health ScienceCenter (“UTHSC”). Moses alleged that her root canal wasbotched, leaving her injured. The State filed a motion todismiss. The Claims Commission granted the State's motionto dismiss on multiple independent grounds including thatMoses failed to file a certificate of good faith with hercomplaint in accordance with Tenn. Code Ann. § 29-26-122.Moses appeals. We affirm.On November 30, 2023, Moses underwent a root canalperformed by Dr. Bryan Drew Benbow, an endodonticsresident and UTHSC employee, under the supervision ofDr. Harry T. Cosby. According to Moses’ account of theevents, complications arose after the root canal. Moses wasdiagnosed with an infection and cellulitis, which requiredadditional treatment. In February 2024, Moses sent letters tothe University of Tennessee administration, as well as Drs.Benbow and Cosby, informing them of her intent to file anegligence claim. Moses set out how the root canal causedher pain and injury. Moses stated that she was “prepared toprovide the required physicians’ affidavit/certificate of goodfaith as mandated by T.C.A. § 29-26-122.”Under Tenn. Code Ann. § 29-26-122, plaintiffs in health careliability actions must file certificates of good faith with theircomplaint. The statute provides, as relevant:(a) In any health care liability action in which experttestimony is required by § 29-26-115, the plaintiff orplaintiff's counsel shall file a certificate of good faithwith the complaint. If the certificate is not filed with thecomplaint, the complaint shall be dismissed, as provided insubsection (c), absent a showing that the failure was due tothe failure of the provider to timely provide copies of theclaimant's records requested as provided in § 29-26-121 ordemonstrated extraordinary cause.***(c) The failure of a plaintiff to file a certificate of goodfaith in compliance with this section shall, upon motion,make the action subject to dismissal with prejudice. Thefailure of a defendant to file a certificate of good faith incompliance with this section alleging the fault of a non-party shall, upon motion, make such allegations subject tobeing stricken with prejudice unless the plaintiff consentsto waive compliance with this section. If the allegationsare stricken, no defendant, except for a defendant whocomplied with this section, can assert, and neither shall thejudge nor jury consider, the fault, if any, of those identifiedby the allegations. The court may, upon motion, grant anextension within which to file a certificate of good faith ifthe court determines that a health care provider who hasmedical records relevant to the issues in the case has failedto timely produce medical records upon timely request, orfor other good cause shown.
Moses V. State, Slip Copy (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works.2Tenn. Code Ann. § 29-26-122 (West eff. April 23, 2012).On May 1, 2024, Moses filed her Notice of Claim againstthe State with the Division of Claims and Risk Management.Moses did not file a certificate of good faith with this Notice.The case was then transferred to the Claims Commission. OnAugust 1, 2024, Moses filed her pro se complaint alleginghealth care liability, naming as defendant “University ofTennessee Health Science Center (UTHSC) (EndodonticsDepartment)/State of Tennessee.” Moses did not file acertificate of good faith with her complaint.In October 2024, the State filed a motion to dismiss pursuantto Tennessee Rule of Civil Procedure 12.02(6). The Stateargued, among other things, that dismissal was requiredbecause Moses failed to file a certificate of good faith with hercomplaint in accordance with Tenn. Code Ann. § 29-26-122.The State also contended that the pre-suit notice wasinsufficient. On October 24, 2024, the Commissioner of theClaims Commission granted Moses until November 25, 2024,to respond to the State's motion to dismiss. On November25, 2024, Moses filed a “Certificate of Consultation andGood Faith,” an amended complaint, and a response to theState's motion to dismiss. It was Moses’ position that heramended complaint cured any issue related to her originalfailure to file a certificate of good faith. In her amendedcomplaint, Moses identified individual doctors, including Dr.Benbow, as defendants in addition to UTHSC. Moses alsofiled a “motion to strike irrelevant collective exhibits.” In turn,the State filed a motion to strike Moses’ certificate of goodfaith and amended complaint. The State also filed a “reply insupport of its motion to dismiss and response in oppositionto claimant's motion to strike exhibits” in which the Stateargued that Moses could not cure her failure to file a certificateof good faith with her original complaint by way of filingone with an amended complaint and that, even if she could,the certificate she filed with the amended complaint wasdefective. On January 16, 2025, Moses filed a motion seekingadditional time to file an amended complaint in the eventthe Claims Commission found she needed leave to do so.Moses asked the Claims Commission to deem her amendedcomplaint as having been properly filed on November 25,2024, or at least by January 16, 2025, when she filed hermotion to amend. Additional procedural history unfolded, andneither party requested oral argument.*2 In February 2025, the Commissioner entered his finalorder in which he granted the State's motion to dismiss andto strike. The Commissioner ruled that Moses’ pre-suit noticewas sufficient. Nevertheless, the Commissioner dismissedMoses’ case on grounds that she failed to file a certificateof good faith with her original complaint in accordance withTenn. Code Ann. § 29-26-122 or file a properly supportedmotion for an extension of time. The Commissioner foundfurther that the certificate of good faith filed by Moseswith her amended complaint was inadequate as it merelystated that Moses had consultations with experts, and thatshe failed to identify individual defendants in the certificate.The Commissioner also ruled that the Claims Commissionlacked jurisdiction to consider Moses’ claim for intentionalinfliction of emotional distress, as well as Moses’ request forpunitive damages. The Commissioner denied Moses’ motionfor additional time and to strike certain exhibits. Moses timelyappealed to this Court.1DiscussionMoses raises several issues on appeal, and the State raisesseparate issues concerning whether Moses’ appeal shouldbe dismissed for various briefing failures. We restate andconsolidate the issues raised by the parties on appeal asfollows: 1) whether Moses’ appeal should be dismissedfor noncompliance with the rules of briefing; 2) whetherMoses was denied a meaningful opportunity to be heard; and3) whether the Commissioner erred in granting the State'smotion to dismiss.This is an appeal of a grant of a motion to dismiss. Wereview the Commissioner's granting of the State's motion todismiss de novo with no presumption of correctness. Cothranv. Durham Sch. Servs., L.P., 666 S.W.3d 369, 375 (Tenn. Ct.App. 2022).We first address whether Moses’ appeal should be dismissedfor noncompliance with the rules of briefing. The Stateargues that Moses failed to properly cite the record or tolegal authority as required by Tennessee Rule of AppellateProcedure 27(a)(7). Moses’ brief contains several errors inlegal citation and at least one fictitious case. In addition,Moses fails to cite to the appellate record. We disregardany legal authorities cited by Moses that we cannot verifyas authentic. However, in view of Moses’ pro se status,the straightforwardness of the issues on appeal, the relativebrevity of the record, and our general preference to resolvecases on their merits, we decline to dismiss Moses’ appeal fornoncompliance with the rules of briefing.
Moses V. State, Slip Copy (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works.3*3 We next address whether Moses was denied a meaningfulopportunity to be heard. Moses asserts that the ClaimsCommission wrongly held her to the same standard as alicensed attorney; that her due process rights were violatedbecause her case was dismissed without a hearing; and thatthe legislative intent of Tenn. Code Ann. § 29-26-122 wasmisapplied to yield an unduly harsh result. The State arguesthat Moses failed to raise these purported issues below;therefore they are waived. However, the issues Moses raisesregarding the alleged violations of her rights and unfairtreatment as a pro se litigant do not stem from anything shecould have raised before the Claims Commission at the time.Therefore, she has not waived these issues for failure to raisethem below.With respect to Moses’ assertion that she was denied ahearing, we note that no hearing was requested.2 Moses wasable to, and did, file papers setting out her arguments inwriting. Therefore, Moses was able to make her case; shesimply did not prevail. As for Moses’ contention that she wastreated unfairly as a pro se litigant, we have observed that“courts must not excuse pro se litigants from complying withthe same substantive and procedural rules that representedparties are expected to observe.” Young v. Barrow, 130 S.W.3d59, 63 (Tenn. Ct. App. 2003). We find no evidence in thisrecord that Moses was ever treated unfairly by the ClaimsCommission, which specifically considered pro se status infinding the pre-suit notice sufficient. Finally, Moses arguesthat Tennessee's health care liability jurisprudence is undulyharsh and places procedural exactitude over substantive merit.Moses also cites Tenn. Code Ann. § 9-8-307(a)(3) and itsprovision that the jurisdiction of the Claims Commission isto be liberally construed. However, the jurisdiction of theClaims Commission is not at issue. Respectfully, we discernMoses’ argument to be of a policy nature. Such views arebetter addressed to the Tennessee General Assembly than tothis Court. In sum, Moses has failed to demonstrate that shewas denied a meaningful opportunity to be heard.The final issue we address is whether the Commissioner erredin granting the State's motion to dismiss. In this case, theClaims Commission concluded that Moses was required tofile a certificate of good faith with her original complaintand that her failure to file either the certificate or a motionfor extension of time under Tenn. Code Ann. § 29-26-122required dismissal of her complaint. The Commissioner wenton to find that, “[e]ven if it is assumed Claimant couldcorrect her deficiency by filing an Amended Complaint,”the certificate accompanying the proposed amendment wasdeficient in two separate ways. One, the Commissionerfound that under Tenn. Code Ann. § 29-26-122(a)(2)(B), thecertificate must be based on the medical records reviewed oranother good faith basis, whereas Moses simply said that shehad consultations with experts. Two, the Commissioner statedthat the certificate was non-compliant for failure to identifyspecific defendants.Moses argues on appeal that filing a certificate of good faithwith an amended complaint cures any error. However, sheoffers no argument on the Claims Commission's alternativeholding that the certificate of good faith filed with theamended complaint in this instance is defective. “The failureto challenge [an] independent alternative ground requires thiscourt to affirm the trial court's ruling without consideringthe issue that was raised on appeal.” Ramos v. Caldwell, No.M2022-00222-COA-R3-CV, 2023 WL 1776243, at *4 (Tenn.Ct. App. Feb. 6, 2023). “[W]here a trial court provides morethan one separate and independent ground for its judgmentand a party fails to appeal one or more of the independentgrounds, we must affirm the judgment of the trial court onthe ground that was not challenged on appeal.” Buckley v.Elephant Sanctuary in Tennessee, Inc., 639 S.W.3d 38, 55(Tenn. Ct. App. 2021).*4 Given the alternative bases of the Commissioner's ruling,Moses cannot prevail in this appeal because she has notchallenged the finding that the certificate attached to theamended complaint was defective. We therefore affirm.ConclusionThe judgment of the Claims Commission is affirmed, and thiscause is remanded to the Claims Commission for collectionof the costs below. The costs on appeal are assessed againstthe Appellant, Pamela Moses, and her surety, if any.All CitationsSlip Copy, 2026 WL 518478Footnotes
Moses V. State, Slip Copy (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works.41On October 27, 2025, this Court entered an administrative order concerning the failure of appellee Bryan Drew Benbowto file a brief. On November 14, 2025, we entered an order directing Dr. Benbow to file a brief or show cause why thisappeal should not be decided on the record and the State's and Moses’ briefs only. Moses then filed a “motion for findingof waiver” asking that we find that Dr. Benbow waived his ability to defend this appeal. The State, for its part, filed a motionasserting that we wrongly listed Dr. Benbow as a party and asking that we remove him as a party pursuant to Tenn. R.App. P. 19(e), nunc pro tunc to March 18, 2025, when this appeal was docketed. The State goes further and argues thatwe lacked subject matter jurisdiction to list Dr. Benbow as a party to begin with, citing among other cases Myers v. HurstConstr. Co., No. 01-A-01-9609-CV-00397, 1997 WL 92078, at *2 (Tenn. Ct. App. Mar. 5, 1997), no appl. perm. appealfiled (stating that the Claims Commission has no jurisdiction against individuals). The State goes further still, asking thatwe vacate our October 27, 2025, administrative order, and direct the Clerk's Office to eliminate any metadata showingthat Dr. Benbow ever was a party to this appeal. Based on our review of the record, the inclusion of Dr. Benbow as aparty-appellee was erroneous. We therefore vacate our October 27, 2025, administrative order concerning Dr. Benbowand our November 14, 2025, show cause order. Dr. Benbow is dismissed as a party. We deny the State's other requestedrelief. We also deny Moses’ motion for finding of waiver.2The standing initial order governing regular docket claims in the Claims Commission contained in the appellate recordreflects that “[t]he Commission will normally decide motions on the written submissions, unless a party submits a writtenrequest for oral argument of the motion or requested by the Commissioner.”End of Document© 2026 Thomson Reuters. No claim to original U.S.Government Works.
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