Close Enough for Horseshoes and Hand Grenades: Substantial Compliance Rather Than Strict Compliance in HealthCare Liability Case

This is yet another Tennessee medical malpractice (health care liability) notice case and the issue is whether strict compliance is required for T.C.A. § 29-26-121 (a)(3) and (4), which requires an affidavit from the party mailing the notice. The underlying procedural facts were not in dispute: plaintiff fully and strictly complied with the pre-suit notice provisions of T.C.A. § 29-26-121(a) but failed to simultaneously file an affidavit of the party mailing the pre-suit notice. Instead, the plaintiff filed it after the notice was given and before the defendants filed any responsive pleading. In response, the defendants filed a “gotcha” motion to dismiss arguing the failure to simultaneously file the affidavit required a dismissal of the case.

The trial court disagreed noting the error had been remedied prior to the defendants filing a responsive pleading and ultimately finding the plaintiff had complied with the notice provision of the Act. An interlocutory appeal was granted pursuant to Rule 10 and the Court of Appeals made quick work of the issue relying on the Tennessee Supreme Court’s decision in Stevens ex rel. Stevens v. Hickman Cmty. Health Care Servs., Inc., No. M2012-00582-SC-SO9-CV, 2013 WL 61580000.

In Stevens, the Tennessee Supreme Court had been asked to decide whether strict compliance was required with T.C.A. § 29-26-121(a)(2)(E) (the HIPPA compliant medical authorization section of the Act). Ultimately, the Tennessee Supreme Court held that substantial compliance rather than strict compliance was all that was required for that particular section because the provision was non-substantive and no prejudice had befallen the defendants as a result of the non-compliance.

Likewise, in this case, the Court of Appeals concluded the true “purpose and essence” of the statute was to provide pre-suit notice to a defendant and that had been satisfied. The fact that the affidavit had not been served until shortly after the complaint was filed did not result in any prejudice to the defendants because simply having to proceed with the case or the passage of time could not, on their own, constitute prejudice. Given the preference to resolve cases on their merits, the Court of Appeals held the interests of justice would not be served by dismissing the complaint for failure to simultaneously serve the affidavit and the plaintiffs should be allowed to correct the oversight.

Finally we are beginning to see some notion of fairness find its way into this troublesome area of the law.  There are several notice and certificate of good faith cases pending before the Tennessee Supreme Court, and it needs to continue to send the message that while the statute must be followed substantial compliance is all that is required.  And what do I mean about substantial compliance?  Compliance to the extent that any deficiencies do not result in any substantial prejudice to the defendant. 

In other words, no more gotchas.

The case is Chambers v. Bradley County, No. E2013-01064-COA-R10-CV (March 28, 2014).