Supreme Court Addresses Affidavit Requirement Of Health Care Liability Pre-Suit Notice Statute

Thursday, April 24, 2014

In a unanimous opinion, the Tennessee Supreme Court has determined that a health care liability suit can continue because a plaintiff complied fully with the requirement to provide pre-suit notice to defendants and complied substantially with the requirements to confirm the sending of the notice.

Under Tennessee law, a plaintiff in a medical malpractice suit – referred to by statute as a “health care liability action” – must serve written notice of their potential claim on all potential health care provider defendants at least 60 days before filing a complaint.

The pre-suit notice may be served by certified mail. The law states that compliance with the service requirement shall be demonstrated by, among other things, filing an affidavit with the complaint confirming that pre-suit notice was properly served.

In the case decided today, the plaintiff, Richard Thurmond, served pre-suit notice by certified mail 60 days in advance of the filing of the suit, but did not file an affidavit with his complaint confirming such service. The defendants, Mid-Cumberland Infectious Disease Consultants and Dr. Simi Vincent, asked the trial court to dismiss the case on the ground that the statute mandated filing the affidavit with the complaint. However, the defendants did not deny receiving pre-suit notice or claim prejudice from the lack of an affidavit. Believing the statute required the affidavit, the trial court “reluctantly” dismissed the lawsuit, and the Court of Appeals upheld the dismissal but characterized the result as “harsh.”

The Supreme Court reversed. Justice Cornelia A. Clark writing for the Court noted that the plaintiff satisfied “the ‘fundamental’ and essential purpose of the pre-suit notice statute” by timely providing pre-suit notice to the defendants. Because strict compliance with the affidavit requirement is not “essential to avoid prejudicing an opposing litigant,” the Court determined that the requirement may be satisfied by substantial compliance.

The Court ruled that the plaintiff had substantially complied with the affidavit requirement by stating in his complaint that pre-suit notice had been timely served, by providing a disc with images five days after filing his complaint that established that pre-suit notice had been timely served by certified mail, and by filing an affidavit less than three months after filing his complaint confirming timely service of pre-suit notice by certified mail.

The case will now return to the trial court for further proceedings.

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