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.




Miller & Martin Attorney Honored As Fellow Of Chattanooga Bar Foundation

Miller & Martin attorney Ward Nelson has been recognized for his professional achievements and for his commitment to the Chattanooga community with an invitation to become a fellow of the Chattanooga Bar Foundation. Each year the CBF invites a select few to join the ranks of the local fellows. The fellows work to improve the study of law, improve the administration of justice, ... (click for more)

Baker Donelson Recognized In Managing Intellectual Property's 2016 IP Handbook

Baker Donelson has been recognized as a "highly recommended" firm in the 2016 edition of Managing Intellectual Property's IP Handbook, an annual publication which recognizes leading law firms and lawyers in intellectual property. Baker Donelson is one of six law firms listed as "highly recommended" in the state of Tennessee for its intellectual property work, which includes ... (click for more)

County Commission Gives Up Fight On $900,000 In Discretionary Funds

County Commission members have given up the fight for the annual $900,000 in discretionary funds. Commission Chairman Chester Bankston said there was not enough money available after requests from a number of agencies and departments were cut to balance the budget without a tax increase. Commissioner Sabrena Smedley said the fact that commissioners can no longer allot the ... (click for more)

1 Person Killed And Several Others Injured In 2 Wrecks Near Ooltewah Exit Of I-75

One person was killed and several others injured in two wrecks early Wednesday morning on I-75 northbound at exit 11.   Northbound lanes were closed while emergency crews worked both accidents. Traffic was rerouted to Old Lee Highway to avoid the accident scene.   Traffic was backed up for an extended time before it eventually re-opened.   The initial ... (click for more)

A Disturbing Trend At Exit 11

So, am I the first to notice a trend?   How many wrecks does exit 11 need before anyone asks "whats up with that?"  I have lost count of the wrecks that continue to happen, even after last year's awful loss of life (which I believe 51 percent of the blame should fall on the THP officer on duty).  The problem with this section of interstate are sight lines ... (click for more)

Roy Exum: What You Leave Behind

Randy Travis, one of the best at singing country songs that has ever been, had a song about three people who got killed when an 18-wheeler missed a stop sign. There was a farmer and a teacher, a hooker and a preacher on this bus and Randy tells us: “One's headed for vacation, one for higher education, An' two of them were searchin' for lost souls.” In that wonderful song, the ... (click for more)