Case Dismissed Because Plaintiff Sent Notice by FedEx Instead of U.S. Postal Service

 In Arden v. Kozawa, M.D, No. E2013-01598-COA-R3-CV (Tenn. Ct. App. June 18, 2014), Plaintiff in a health care liability action appealed after his lawsuit brought on behalf of his deceased wife was dismissed at trial for failing to strictly comply with Tennessee’s pre-suit notice requirements.

Plaintiff’s wife was allegedly negligently treated by a doctor at a hospital for abdominal pain and she later died from pancreatitis and other complications. Prior to the statute of limitations, plaintiff sent pre-suit notice letters to the doctor and hospital, as required by TCA statute 29-26-121. However, there were four problems with the pre-suit notice letters: (1) plaintiff omitted his own address from the notice letters; (2) the doctor’s letter was sent to an address that was different from the listing on the Tennessee Department of Health website; (3) the provider’s list accompanying the letters did not include the hospital’s address; and (4) there was no certificate of mailing from the U.S. Postal Service because the letters were sent via Federal Express. The trial court dismissed plaintiff’s case at summary judgment based on plaintiff’s failure to strictly adhere to the requirements of the pre-suit notice statute, and plaintiff appealed.

The Tennessee Court of Appeals first observed that the trial court had wrongly applied the “strict compliance” standard to the pre-suite notice requirements, instead of the correct “substantial compliance” standard as previously held by Tennessee’s Supreme Court in Thurmond v. Mid-Cumberland Infectious Disease Consultants, PLC, No. M2012-02270-SC-R11-CV, 2014 WL 1632183 at *6-7 (Tenn. Apr. 24, 2014).  Reviewing the content of plaintiff’s pre-suit notice letters in light of the correct “substantial compliance” standard, the appellate court ruled that defendant doctor and hospital were not prejudiced by plaintiff’s failure to include his own address and the hospital’s address on the providers list and, therefore, the content in plaintiff’s notice letters had substantially complied with the pre-suit notice requirements of 29-26-121.

However, even if plaintiff had substantially complied with the content requirements of his pre-suit notice letters, defendant doctor and hospital still argued that plaintiff failed to properly serve the pre-suit notice in the manner required by statute. If the notice is mailed, then 29-26-121 provides that compliance “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 appellate court found that the statute was clear and unambiguous, and that it was apparent that the legislature deliberately intended that the U.S. Postal Service would be the only acceptable means of service of the notice other than personal delivery. The Arden court then cites to one of my prior published articles from 2009 wherein I noted that the legislative amendments provided for mailing only through the U.S. Postal Service, with a certificate of mailing from the post office to definitively show the date of the actual mailing.

So even though Plaintiff had filed a copy of the documentation from Federal Express tracking delivery of the notice letters, along with an affidavit from the person who sent the letters, and it was undisputed that defendant doctor and hospital had received actual notice, the Arden court still ruled that plaintiff’s service via Federal Express did not substantially comply with 29-26-121(a)(3) and (4).  Consequently, the court held that plaintiff’s service was improper and ineffective and plaintiff could not rely on the 120-day statute of limitation extension provided by the notice statute to file his lawsuit. Plaintiff’s lawsuit was dismissed as untimely for being filed after the one year statute of limitations.

The Arden court did not address the issue concerning the lack of service to the doctor’s address as listed on the Tennessee Department of Health website.

The asserted purpose of the pre-suit notice requirement was to give health care providers to opportunity to settle claims before suit was filed.  The statute requires plaintiffs to jump through many costly and time consuming hoops, with some hoops that are clear and others that are anything but. Unfortunately, clarity is only provided at the expense of people’s legal rights when their lawsuits are dismissed on technicalities rather than being tried on the merits.

It is true that the legislature provided that notice must be served by US Mail or by personal service.  That said, it is difficult to see why the doctrine of substantial compliance would not save the plaintiff’s service of notice via Federal Express if the provider in fact received the notice.  Remember, the statute doesn’t require proof that notice was received, it only requires proof that notice was sent in a certain matter.  It seems to me that if notice was actually received, whether accomplished via Federal Express, Pony Express, or carrier pigeon, that the statute has been substantially complied with because the defendant actually received notice of a potential claim and was able to investigate and settle the case if appropriate.  This is especially true when Fed Ex is used to deliver notice, given that one can readily identify the date the notice was sent from the receipt.

The Tennessee Supreme Court should accept a Rule 11 application in this case and reverse.