Case Law on Pre-Suit Notice Requirement in Tennessee Health Care Liability (Medical Malpractice) Cases

 Almost four years ago Tennessee adopted a requirement that health care provides were entitled to receive advance notice of the filing of Tennessee medical malpractice (now call "health care liability) lawsuits. Under the current version of the statute, notice must be given in the manner proscribed by statute before the expiration of the statute of limitations. Exceptions are granted only for extraordinary cause. Giving appropriate notice extends the statute of limitations and statute of repose by 120 days.

The Tennessee pre-suit notice statute can be found at T.C.A. Section 29-26-119. I wrote an article about the most recent version of the statute for the Tennessee Bar Journal; the article is titled "Med Mal Makeover: The New Medical Malpractice Notice and Certificate of Good Faith Statute."

I have assembled a list of the cases that discussed the pre-suit notice requirement.  Here are the two cases currently pending before the Tennessee Supreme Court:

  1. Cunningham ex rel. Cunningham v. Williamson County Hosp. Dist., 2011 WL 6000379, (Tenn. Ct. App., Nov. 30, 2011) (perm. app. granted April. 11, 2012) (120 day extension of statute of limitations applies to medical malpractice claims filed against governmental entities).  Note:  oral argument scheduled for October 3, 2012.
  2. Myers v. AMISUB (SFH), Inc., 2011 WL 664753, at *8 (Tenn. Ct. App. Feb. 24, 2011) (perm. app. granted Aug. 23, 2011) (defendant need not show prejudice by non-compliance with pre-suit notice requirement and duty to file certificate of good faith; trial court reversed and remanded for dismissal).  Note:  Oral argument held April 4, 2012.

The other cases discussing the statute are after the jump.  NOTE: I have exluded almost all cases involving pro se plaintiffs.

I will post the cases involving the Tennessee certificate of good faith requirement tomorrow.

 

Tennessee State Court Cases

 

               Hinkle v. Kindred Hosp. , 2012 WL 3799215 (Tenn. Ct. App., Aug. 31, 2012) (notice that did not strictly comply with the letter of the statute found to be sufficient, especially in light of the fact that both defendants admitted they received notice at least 60 days before the lawsuit was filed).

               Parker v. Portland Nursing and Nursing Rehab., 2012 WL 3776800 (Tenn. Ct. App., Aug. 30, 2012) (notice was not required for filing ordinary negligence claims against health care provider).

 

Childs v. UT Medical Group, Inc., 2012 WL 3201933, (Tenn. Ct. App., Aug. 8, 2012) (case filed under Savings Statute dismissed for failure to comply with the terms of the notice and certificate of good faith provisions; decision left open the issue of whether proper notice given while the initial case was pending would satisfy the notice requirement in the second filing).

 

               Hawkins v. Martin, 2012 WL 3007680 (Tenn. Ct. App. July 24, 2012) (failure to attach HIPPA compliant authorizations with pre-suit notice letters excused given the fact plaintiff’s counsel was preparing to be deployed to Afghanistan at time notices were prepared; trial judge abused discretion in not finding extraordinary cause; judge should weigh the totality of the circumstances in determining whether to grant relief).

 

               Johnson v. Floyd, 2012 WL 2500900, (Tenn. Ct. App. Jun 29, 2012) (120 day extension of statute of limitations does not apply to claims commenced under the Savings Statute; opinion recognizes but disagrees with Rajvongs).

 

Rajvongs v. Wright, 2012 WL 2308563, (Tenn. Ct. App. Jun 18, 2012) (120 day extension of statute of limitations applies to claims commenced under the Savings Statute and thus plaintiff’s claim was timely filed).

 

Cude v. Herren, 2011 WL 4436128 (Tenn. Ct. App. Sept. 26, 2011) (case filed under Saving Statute after pre-suit notice requirement came into effect must give pre-suit notice; extraordinary cause to excuse pre-suit notice was not demonstrated).

 

Cunningham ex rel. Cunningham v. Williamson County Hosp. Dist., 2011 WL 6000379, (Tenn. Ct. App., Nov. 30, 2011) (perm. app. granted April. 11, 2012) (120 day extension of statute of limitations applies to medical malpractice claims filed against governmental entities).  Note:  oral argument scheduled for October 3, 2012.

 

Estate of French v. Stratford House, 333 S.W.3d 546, 555 (Tenn. 2011) (pre-suit notice not required if complaint only alleges ordinary negligence).

 

Mathes v. DRD Knoxville Medical Clinic, 2011 WL 1402879 (Tenn. Ct. App. Apr. 13, 2011) (complaint sounded in ordinary negligence and therefore compliance with the pre-suit notice requirement and the certificate of merit requirements were not required).

 

Myers v. AMISUB (SFH), Inc., 2011 WL 664753, at *8 (Tenn. Ct. App. Feb. 24, 2011) (perm. app. granted Aug. 23, 2011) (defendant need not show prejudice by non-compliance with pre-suit notice requirement and duty to file certificate of good faith; trial court reversed and remanded for dismissal).  Note:  Oral argument held April 4, 2012.

 

DePue v. Schroeder, 2011 WL 538865, at *8 (Tenn. Ct. App .Feb.15, 2011) (substantial compliance with the spirit of the statute is not sufficient to satisfy its mandatory language; case dismissed when plaintiff filed suit 7 days before 60 day waiting period imposed by statute; extraordinary cause not demonstrated on facts; constitutional arguments not considered on the merits).

 

Brister v. HCA Health Services of Tenn., 2011 WL 2395218 (Tenn. Ct. App. June 8, 2011) (plaintiff need not comply with notice requirement if complaint sounds in ordinary negligence).

 

Howell v. Claiborne and Hughes Health Ctr., 2010 WL 2539651, at *16 (Tenn. Ct. App. June 24, 2010) (purpose of statute is to provide notice to health care providers of potential claims against them so that they might investigate the matter and perhaps settle the claim).

 

Long v. Hillcrest Healthcare – West, 2010 WL 1526065 (Tenn. Ct. App. April 16, 2010) (allegations of the complaint were charges of medical negligence, not ordinary negligence, and thus pre-suit notice was required).

 

Martins v. Williamson Medical Center, 2010 WL 4746238 (Tenn. Ct. App. Nov. 22, 2010) (complaint sounded in malpractice and thus pre-suit notice was required).

 

Howell v. Clairborne and Hughes Health Center,  2010 WL 2539651 (Tenn. Ct. App. May 27, 2010) (in a case involving “unique circumstances,” failure to give notice as required under the 2008 version of the Act, which went into effect five days before the complaint was filed,  was excused).

 

 

Tennessee Federal Court Cases

 

Taylor v. Johnson City, Tennessee, 2012 WL 3441226 (E.D. Tenn. Aug. 14, 2012) (claims designated as “medical negligence” were not in fact medical negligence claims under Tennessee law and therefore pre-notice and a certificate of good faith were not required).

 

Southwell v. Summit View of Farragut, LLC, 2012 WL 3340176 (Aug. 9, 2012) (dismissal of medical negligence claims affirmed for failure to give proper notice and failure to file certificate of good faith; court gave plaintiff a chance to amend and assert ordinary negligence claims). (A more detailed statement of the facts in this case is in the opinion and order of the district court, found at 2011 WL 2749614.).

 

Shuler v. McGrew, 2012 WL 3260685 (W.D. Tenn. Aug. 8, 2012) (case dismissed for failure to give pre-suit notice and file a certificate of good faith; plaintiff’s argument that the claims were not medical malpractice claims rejected; request to amend complaint denied).

 

Tangradi  v. Baptist Hospital of Union City, 2012 WL 2681806 (W.D. Tenn. July 6, 2012) (plaintiff was permitted to non-suit and then re-file claims under the Savings Statute, notwithstanding alleged error in pre-suit notice).

 

Gray v. Williamson Medical Center, 2011 WL 6749039 (M.D. Tenn.) (pending a decision by the Tennessee Supreme Court on the issue, defendant’s motion to dismiss complaint arguing that the 120-day extension of the statute of limitations does not apply to a medical malpractice claim against a governmental entity was denied).

 

Jenkins v. Marvel, 683 F. Supp. 626 (E.D. Tenn. 2010) (notice not required given that plaintiffs had previously filed and voluntarily dismissed case and thus defendants were on notice of claim).

Maliani v. Vanderbilt University Medical Center, 2010 WL 4054268 (M.D. Tenn. Oct. 15, 2010) (medical malpractice claims dismissed for failure to give notice and for failure to file a certificate of good faith).

West v. Americare Long Term Specialty Hospital, LLC, 2010 WL 2985798 (W.D. Tenn. July 26, 2010) (the 120 day extension of the statute of limitations applied to all claims asserted by plaintiff; T.C.A. § 29-26-121(a)(4)(e) extended statute of limitations as to ordinary negligence claims even though they were pleaded as ordinary negligence claims).

 

Miller v. Monroe County, Tennessee, 2010 WL 1427298 (E.D. Tenn. Apr. 7, 2010) (medical malpractice claims dismissed for failure to give notice and for failure to file a certificate of good faith).