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’s Stewardship Mission Highlighted At Board Of Directors Meeting

The Tennessee Valley Authority’s stewardship mission was the main theme of today’s TVA Board of Directors meeting in Paris Landing State Park, Tenn.             “TVA’s mission is to help improve the quality of life for the people of the Tennessee Valley,” said TVA President and CEO Bill Johnson. “We do that by being fiscally ... (click for more)

Speed Deluxe, Silent Cycles And Velo Coffee Roasters Opens New Shop

peed Deluxe Vintage & Bespoke Motorcycles and Silent Cycles are opening a retail shop in collaboration with Velo Coffee Roasters in North Chattanooga on June 11.  The space on Cherokee Boulevard will house Velo’s second Chattanooga coffee bar operating alongside the motorcycle and bicycle businesses. The shop, called Speed Deluxe, will open for service the ... (click for more)

Mayor Berke Pledges $6 Million For New Recreation Center At Avondale

Mayor Andy Berke announced Thursday that he plans to include $6 million in his upcoming budget for a new Recreation Center at Avondale. He said at a press conference at the current center on Dodson Avenue, "We want to make an investment in Avondale." Mayor Berke said the current center by Wilcox Boulevard was built in 1949 and last remodeled in 2002. The new center, which ... (click for more)

Developer Plans Single-Family Homes, Townhomes, Apartments, Retail On 7.5 Acres At South Broad Street

A developer is planning single-family homes, apartments, townhomes and retail on a 7.5-acre South Broad Street site. The development by South Broad LLC and DEW LLC is located within several blocks between South Broad Street, W. 26th Street, Long Street and W. 27th Street. It would include a 3-story U-shaped apartment building with ground floor retail at the north end of the ... (click for more)

Thankful For The Vital Role Teachers Played In My Life

Re: Roy Exum: Teachers Day Tomorrow Roy, I am especially appreciative of your poignant column written in tribute to teachers.  It made me tear up, as I have encountered both as a student and a career educator-- teachers like the second-grade teacher who said, "I wish you were my little girl" and teachers like Mrs. Poindexter.   My teachers have played such a vital ... (click for more)

Roy Exum: ‘No’ To Schools Budget

When the Hamilton County Commissioners and officials of the Hamilton County Department of Education met for 3 ½ hours on Tuesday, they studied a proposed budget of roughly $385 million – this $24.2 million over an anticipated $361 million in revenues. Now let’s pretend it is a Tuesday night at your own kitchen table and your favorite son – after misbehaving in a somewhat stunning ... (click for more)