In Tennessee, before a party may file a lawsuit against a healthcare provider for medical malpractice, the party must give 60 days’ pre-suit notice pursuant to Tenn. Code Ann. § 29-26-121(a). In Brown v. Samples, No. E2013-00799-COA-R9-CV (Tenn. Ct. App. Apr. 29, 2014), the State of Tennessee was granted permission to pursue an interlocutory appeal when it argued that it was not provided with effective pre-suit notice of a claim for medical malpractice arising out of the death of a child during delivery at a state-run hospital. The claims commissioner disagreed with the state’s position and denied the state’s motion to dismiss. On appeal, the Court of Appeals upheld the decision of the claims commissioner finding there was no special requirements for pre-suit notice to the state.
The state argued that in order for pre-suit notice to be effective against it, the notice must be sent to (1) the Attorney General of Tennessee or an Assistant Attorney General, or (2) the Division of Claims Administration of the State. Section 121 provides that the notice must be given “[t]o a health care provider that is a corporation or other business entity at both the address for the agent for service of process, and the provider’s current business address, if different from that of the agent for service of process.” The state argued that its agent for service of process is the attorney general or any assistant attorney general relying on Rule 4.04(6) of the Tennessee Rules of Civil Procedure as authority, which applies to service of the summons and complaint in a lawsuit. However, the court noted that Rule 4.04, by its own terms, applies only to service of lawsuits, not pre-suit notice. The state also argued that because claims against the state must be filed in the Division of Claims Administration, the Division of Claims Administration is an alternate agent for service. However, the court notes that the regulations pertaining to filings with the Division of Claims Administration apply to claims and not pre-suit notice. Also, importantly, the court reminds us that actual notice is the goal, so where this is actual notice, the defendant should not be permitted to complain. There was no dispute that the state had actual notice of this case.
The court also held that to the extent the notice was deficient, the plaintiffs demonstrated “extraordinary cause” under Tenn. Code Ann. § 29-26-121(c), which allows the court to excuse relatively minor technical flaws.
The State’s argument was ridiculous, The Attorney General’s office should have issued regulations about exactly how it expected pre-suit notice to be given. Instead, it waited for a "gotcha" – hoping to win a case not on the merits but on a ridiculous pre-suit notice requirement.
As I said recently in this post on another Tennessee medical malpractice case, finally some common sense is beginning to be applied in these cases.