The Court of Appeals recently examined whether the sickness and death of a lawyer’s child constituted extraordinary cause under the HCLA, finding that it did in fact excuse noncompliance with the statute.
In Kirby v. Sumner Regional Medical Center, No. M2015-01181-COA-R3-CV (Tenn. Ct. App. July 12, 2016), plaintiff was treated at the defendant hospital in June 2013, and plaintiff alleged that the treatment she received fell short of the required standard of care. Well before the one-year statute of limitations, on January 31, 2014, plaintiff’s counsel sent a fax to defendant regarding the claim. No other correspondence was sent, but on the day the one-year statute of limitations was to expire, plaintiff filed suit. Plaintiff attached a certificate of good faith to her complaint, but she admittedly had not served the statutorily required pre-suit notice with attached HIPAA release.
Defendant moved to dismiss the case based on the lack of pre-suit notice. In response, plaintiff’s counsel pointed out that his son was born on March 6, 2014, and subsequently died on June 20, 2014, just days before the statute of limitations was set to expire on this claim. Counsel stated that “[f]or the few months my son lived, there were frequent periodic indications that each day could be his last, including a few serious hospitalizations.” In his memorandum opposing dismissal, plaintiff’s counsel asserted: