In its written opinion filed on March 28, 2014, the Court of Appeals of Tennessee at Knoxville (“Appeals Court”) decided an appeal in which the issue was “whether the Plaintiff failed to strictly comply with the pre-suit notice requirement that the affidavit of service of the written notice of claim required by statute be filed simultaneously with the complaint, such that dismissal of the medical malpractice claims was warranted.”
The Appeals Court noted that “The statute formerly known as the Medical Malpractice Act, and currently called the Health Care Liability Act, contains a number of procedural requirements that a plaintiff must satisfy to bring an action against a health care provider. Among these “hurdles” is the requirement of Tenn. Code Ann. § 29-26-121(a), which provides that a claimant ‘shall give written notice of the potential claim to each health care provider that will be a named defendant at least sixty (60) days before the filing of a complaint[.]’” Subsection 121(a)(4) provides, “Compliance with subsection (a)(3)(B) shall be demonstrated by filing a certificate of mailing from the United States postal service stamped with the date of mailing and an affidavit of the party mailing the notice establishing that the specified notice was timely mailed by certified mail, return receipt requested … ”
The Appeals Court noted that the plaintiff filed with the complaint a certificate of mailing from the U.S. Postal Service stamped with the date of mailing but failed to include an affidavit of the party mailing the notice, as required by subsection 121(a)(4). However, the Plaintiff thereafter filed the affidavit before defendants filed any responsive pleading. Nonetheless, the Defendants argued that plaintiff’s failure to file the affidavit at the time of filing the complaint mandates dismissal of the plaintiff’s complaint with prejudice.
In deciding the issue, the Appeals Court stated that it had to determine the extent and significance of the plaintiff’s omission of filing the affidavit with the complaint, and whether defendants were prejudiced by this noncompliance. The Appeals Court determined that the Defendants suffered no prejudice as a result of plaintiff’s filing of the affidavit of the party mailing the notice after the complaint was filed instead of filing it simultaneously with the complaint, and noted that the Defendants do not deny that they received timely pre-suit notice containing all of the items required by the statute. Therefore, the Appeals Court held that the purpose of the statute and the essence of the thing to be accomplished (i.e., pre-suit notice to the defendants) were satisfied in this case.
The Appeals Court summarized its holding as follows: [W]e hold that a plaintiff must substantially comply, rather than strictly comply, with the requirements of Tenn. Code Ann. § 29-26-121(a). Where a plaintiff has provided sufficient notice to the defendant under the statute and fails to comply with all the strictures of section 121, as here, “there is no reason why the court should not allow plaintiff to rectify [the] oversight by filing the required proof late.” In the present case, plaintiff substantially complied with the statute, and the trial court did not err in allowing plaintiff to file the affidavit of the party mailing pre-suit notice after the complaint was filed.
Charles J. Chambers ex rel. Odis M. Chambers v. Bradley County, et al., No. V-11-818. You can read the entire Appeals Court opinion by clicking here.
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