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.




Unum Appoints David Hill As New AVP Of Aviation

David Hill has joined Unum as assistant vice president of aviation, where he will oversee the company’s corporate aviation team of 13 that is based in Chattanooga. Mr. Hill joins Unum following an 18 year career with Duke Energy in Charlotte, N.C., where he led a fleet of 10 and a team of 42. A veteran, Mr. Hill dedicated 27 years to the U.S. National Guard, and 10 years ... (click for more)

Clint Powell: I Can Do That Myself!

Asking tough questions is sometimes…well…tough! That just makes sense right? However, knowing that tough questions are tough to ask…doesn’t mean they are still not…well...tough! Shoot…I did it again. Captain Obvious on the job. Well, what kind of tough questions are we talking about? There are quite a few I could spend time on. ‘How old are you?’ – ‘How much do you weigh?’ – ‘Is ... (click for more)

Harr Outlines $40 Million Plan For Chattanooga Light Rail System

Outgoing Chamber of Commerce President Ron Harr on Monday outlined a $40 million plan for a Chattanooga light rail system that would serve not only downtown, but also the Airport and the Enterprise South Industrial Park. In a speech to the Chattanooga Engineers Club, Mr. Harr said most cities looking at such an ambitious plan "would be facing costs of over a billion dollars." ... (click for more)

Chattanooga Choo Choo Adding Clubs, Restaurants In $8 Million Renovation

The historic Chattanooga Choo Choo is adding clubs and restaurants in a $7 million renovation, it was announced in front of the South Market Street landmark on Monday morning. The Comedy Catch will be moving from its longtime home in Brainerd and there will be a new 500-person music venue that will be in addition to Track 29. The new venue, managed by Track 29, will feature a ... (click for more)

Senator Bob Corker: An Open Letter To Tennesseans

We are incredibly fortunate to live in a state in which companies worldwide are clamoring to establish a presence. Many attribute it to our pro-business culture, well-prepared workforce, low tax environment, right-to-work policies, and engaged citizenry.  That is why the announcement by Volkswagen to build its midsize sports utility vehicle and establish the South’s ... (click for more)

Roy Exum: ‘Our’ American Minute

William J. Federer is one of the leading historians in the United States and every morning I am among thousands of people who get an entertaining email from him called the “American Minute.” I adore it because Bill takes a significant event in American history that happened long ago – but he remembers on the very anniversary of when it occurred. A great example is that last Thursday ... (click for more)