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§47.32 Pre-Suit Notice Requirement

The Case: Myers v. AMISUB (SFH), Inc., 382 S.W.3d 300 (Tenn. 2012).

The Basic Facts: After voluntarily dismissing the first medical malpractice case, plaintiff re-filed without giving pre-suit notice. Supreme Court held that requirement of pre-suit notice required strict compliance.

The Bottom Line:

  • “Tennessee Code Annotated section 29-26-121 requires sixty days pre-suit notice in all medical malpractice cases[.]” 382 S.W.3d at 304.
  • “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 plaintiff has demonstrated extraordinary cause for its noncompliance.” Id. at 307.
  • “Tennessee Code Annotated section 29-26-121 expressly provides that ‘[a]ny person ... 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.’ Tenn. Code. Ann. § 29-26-121(a)(1) (emphasis added). …The use of the word ‘shall’ in both statutes indicates that the legislature intended the requirements to be mandatory, not directory. Bellamy v. Cracker Barrel Old Country Store, Inc., 302 S.W.3d 278, 281 (Tenn. 2009) (quoting Stubbs v. State, 216 Tenn. 567, 393 S.W.2d 150, 154 (1965) (‘When ‘shall’ is used...it is ordinarily construed as being mandatory and not discretionary.’)).” Id. at 308.
  • “The essence of Tennessee Code Annotated section 29-26-121 is that a defendant be given notice of a medical malpractice claim before suit is filed. The essence of Tennessee Code Annotated section 29-26-122 is that a defendant receive assurance that there are good faith grounds for commencing such action. The requirements of pre-suit notice of a potential claim under Tennessee Code Annotated section 29-26-121 and the filing of a certificate of good faith under Tennessee Code Annotated section 29-26-122 are fundamental to the validity of the respective statutes and dictate that we construe such requirements as mandatory.” Id.  at 309.
  • “Because these requirements are mandatory, they are not subject to satisfaction by substantial compliance. Substantial compliance is sufficient only when the statute’s requirements are directory, not mandatory.”  Id. at 310.

Recent Cases:  Miller ex rel. Miller v. Cookeville Regional Med. Ctr., No. M2014-01917-COA-R3-CV, 2015 WL 5719739 (Tenn. Ct. App. Sept. 29, 2015) (where plaintiff’s cause of action accrued before 2011 amendments were enacted, plaintiff filing HCLA claim under the GTLA could not take advantage of 120-day extension of statute of limitations); Phillips v. Casey, No. E2014-01563-COA-R9-CV, 2015 WL 4454781 (Tenn. Ct. App. July 21, 2015) (plaintiff allowed to take nonsuit while motion to dismiss was pending for sole purpose of curing deficiencies in pre-suit notices); Arden v. Kozawa, No. E2013-01598-SC-R11-CV, 2015 WL 3958180 (Tenn. Ct. App. June 30, 2015) (delivery of notice via FedEx instead of certified mail was sufficient to substantially comply with statute); Igou v. Vanderbilt Univ., No. M2013-02837-COA-R3-CV, 2015 WL 1517794 (Tenn. Ct. App. March 27, 2015) (where patient’s wife brought a loss of consortium claim that fell under HCLA, patient’s compliance with the HCLA pre-suit notice requirements did not extend to cover wife’s claim, and wife failed to demonstrate extraordinary cause to excuse noncompliance); Cartwright v. DMC-Memphis Inc., 468 S.W.3d 517 (Tenn. Ct. App. 2014) (where pre-suit notice was deficient, initial complaint still commenced the action for purposes of the savings statute); Webb v. Roberson, No. W2012-01230-COA-R9-CV, 2013 WL 1645713 (Tenn. Ct. App. April 17, 2013) (pre-suit notice requirement in HCLA cases is constitutional and not preempted by federal HIPAA law); West v. AMISUB (SFH), Inc., No. W2012-00069-COA-R3-CV, 2013 WL 1183074 (Tenn. Ct. App. March 21, 2013) (pre-suit notice requirement applies to health care liability cases regardless of whether they start in Circuit Court or General Sessions).

Author's Note: Effective October 1, 2008, a patient was required to give formal notice to defendants before filing a medical malpractice case. There were numerous problems with the legislation, and new legislation was passed and became effective July 1, 2009. The 2009 legislation is codified at T.C.A. §29-26-121and 122. At the time this book went to press, there were no cases interpreting the notice requirement. Those contemplating filing a medical malpractice case may find it helpful to read the author's article, "The New New Medical Malpractice Notice and Certificate of Good Faith Statutes," Tennessee Bar Journal¸ Vol. 45, No. 7 (July 2009). The article is available at no charge at www.tba.org.

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The foregoing is an excerpt from Day on Torts: Leading Cases in Tennessee Tort Law, published by John A. Day, Civil Trial Specialist, Fellow in the American College of Trial Lawyers, recipient of Best Lawyers in America recognition, Martindale-Hubbell AV® Preeminent™ rated attorney, and Top 100 Tennessee Mid-South Super Lawyers designee. Read John’s full bio here.

To order a copy of the book, visit www.dayontortsbook.com. John also blogs regularly on key issues for tort lawyers. To subscribe to the Day on Torts blog, visit www.dayontorts.com.

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