In its decision issued on April 24, 2014, the Supreme Court of Tennessee (“Tennessee Supreme Court”), which is Tennessee’s highest court, ruled that a medical malpractice plaintiff had substantially complied with Tennessee’s statutory pre-suit notice requirement for Tennessee medical malpractice cases that states, in part, “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.” Tenn. Code Ann. § 29-26-121(a)(1).
The Tennessee Supreme Court phrased the issue it was deciding as: “This appeal does not involve an allegation that Plaintiff failed to provide pre-suit notice as required by section 29-26-121(a)(1) or that the content of the notice provided was deficient in some manner or failed to include one of the items enumerated in section 29-26-121(a)(2). The dispute here centers on the separate portion of the statute describing the proof that will be deemed sufficient to establish that the requirement of service of pre-suit notice was accomplished in a timely manner.”
The medical malpractice plaintiff had served the pre-suit notice by certified mail, return receipt requested, as permitted by statute, but failed to file with the complaint “an affidavit of the party mailing the [pre-suit] notice establishing that the specified notice was timely mailed by certified mail, return receipt requested,” as required by the statute. The medical malpractice defendants did not allege that the lack of the affidavit resulted in prejudice to them but instead argued that the pre-suit notice statute demands strict compliance with all its requirements and that dismissal is the mandatory remedy for noncompliance. The trial court agreed with the defendants and dismissed the complaint, which the Tennessee Court of Appeals (Tennessee’s intermediate appellate court) affirmed, despite noting the harsh results of requiring strict compliance where no prejudice is alleged.
In deciding the issue, the Tennessee Supreme Court stated, “the essence and fundamental purpose of the statute is providing notice of a potential health care liability claim before a lawsuit is filed … While the statute states that the requirement of timely service of pre-suit notice will be deemed satisfied if a plaintiff files an affidavit and other documents with the complaint, conspicuously absent from the statute is any language indicating that the failure to file the affidavit, and other specified documents, with the complaint renders timely service of pre-suit notice ineffective … the affidavit functions as confirmation that pre-suit notice was timely served on potential defendants in a manner authorized by statute … As this case clearly illustrates, where pre-suit notice was timely served, insisting upon strict compliance with the statute requiring the filing of an affidavit ‘with the complaint’ … is not ‘essential to avoid prejudicing an opposing litigant.'”
The Tennessee Supreme Court therefore concluded, “We hold that the statutory requirement of an affidavit of the person who sent pre-suit notice by certified mail may be satisfied by substantial compliance. We also hold that the plaintiff substantially complied with the statute.”
Source Richard Thurmond v. Mid-Cumberland Infectious Disease Consultants, PLC, et al., No. M2012-02270-SC-R11-CV.
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