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.





TVA Opens Public Comment Period On Scope Of Integrated Resource Plan Update

The Tennessee Valley Authority kicked off a public comment period on Feb. 15, related to the initial process phase for updating its Integrated Resource Plan, the agency’s long-term energy resource strategy.  To ensure that the full range of issues and a comprehensive portfolio of energy resources are addressed, TVA invites members of the public, customers, businesses, employees, ... (click for more)

January Tennessee Revenues Less Than Expected

Tennessee Department of Finance and Administration Commissioner Larry Martin Tuesday announced that overall January state tax revenues posted less than expected, while year-to-date state revenues remain more than budgeted. Revenues for January totaled $1.4 billion, and were 3.18 percent less than revenues received in the same time period one year ago, and were $25 million less than ... (click for more)

Erlanger Has Unique Ribbon Cutting For $16 Million Heart And Lung Institute

Erlanger Health System unveiled its new $16 million Heart and Lung Institute on Thursday with a unique ribbon cutting. Dr. Larry Shears, a renowned heart surgeon who was recruited for the center, used the Da Vinci robot that he often operates with to clip a ribbon by remote control. The "hospital within a hospital" is on the fourth floor of the Baroness Erlanger campus on E. ... (click for more)

City Files Petition To Turn Confederate Cemetery Over To Sons Of The Confederacy

The city of Chattanooga has filed a petition in Chancery Court asking that management of the Confederate Cemetery be turned over to the Sons of the Confederacy. The Sons of the Confederacy, a group that has long taken care of the cemetery, joined in the petition. The cemetery is located by the UTC campus. It is beside the Citizens Cemetery and the Jewish Cemetery on the old ... (click for more)

Reflections On Billy Graham

Sandra and I are saddened this morning after learning of the death of Billy Graham. We rejoice today, because Mr. Graham once said "It will be reported that Billy Graham has died, but that won't be the truth. He said the truth is that he had only moved to a new location".  I remember when we named 15th Street as Billy Graham Avenue, his daughter Gigi came for the dedication ... (click for more)

Roy Exum: We’re The Angriest State

WalletHub, a financial-health website that has found it can draw a lot of attention by ranking the states on which is “fattest,” smartest, and so forth, has just announced its “sinful” rating and Tennessee churches should be ashamed of the job they are doing in making the Volunteer State a haven for puritans. Then again, our tourism may soon explode … remember Sodom & Gomorrah. ... (click for more)