“Substantial Compliance” and the Tennessee Health Care Liability Pre-Suit Notice Statute

The fights over the Tennessee health care liability pre-suit notice statute, T.C.A. Sec. 29-26-121, have steadily increased and now loom over virtually every Tennessee health care liability lawsuit  In short, motions to dismiss cases are being filed because of the alleged failure of the plaintiff’s lawyer to perfectly comply the statute. In many of the cases, the defendant is not denying that notice was in fact received and, indeed, usually admits that the failure to strictly comply with the statute did not result in any prejudice whatsoever. Rather, the defendant argues that if every statutory "i" is not dotted and  "t" is not crossed,  the defendant has the absolute right to insist that the lawsuit be not only dismissed but that it be dismissed with prejudice i.e. any deviation, no matter how minor, requires the death penalty.

It is important to point out that the Tennessee Supreme Court has not addressed the issue to date. True, the court says giving pre-suit notice is mandatory but (a) expressly left open the question about what sanction, if any, is required when the notice statute is not complied with and (b) has not addressed the issue of imprecise compliance. Myers v. AMISUB (SFH), Inc., 382 S.W.3d 300, 307 (Tenn. 2012);   Aubrey E. Givens, Administrator of the Estate of Jessica E. Givens, Deceased, et al. v. The Vanderbilt University D/B/A Vanderbilt University Hospital, et. al.,   M2013-00266-COA-R3-CV  (Tenn. Ct. App. Oct. 15, 2013) and Foster v. Chiles, No. E2012-01780-COA-R3-CV, 2013 WL 3306594 (Tenn. Ct. App. June 27, 2013).  The latter issue is the subject of this post: how should our courts address the issue of a failure to strictly comply with the notice statute, especially in the absence of prejudice to the defendant?  

I submit that the answer to the question asked is relatively easy.  It is easy because our law has answered substantially similar questions dozens of times over the decades, albeit in different contexts, and thus one need only apply decades-old law to reach resolve these cases in a way that furthers both the cause of justice and the familiar, worthy goal of resolving cases on the merits.  Thus, I urge any lawyer who is confronting a notice issue to consider the following cases and argue for the trial and appellate courts to apply the "substantial compliance" test.

The first support for application of the "substantial compliance" test comes from the way our courts have interpreted a provision of the Tennessee Constitution and a related statute. Article 6, Section 12 of the Tennessee Constitution requires that

[a]ll writs and other process shall run in the name of the State of Tennessee and bear test and be signed by the respective clerks. Indictments shall conclude, ‘against the peace and dignity of the State.’

The statute on point is slightly different – it provides that

[a]n indictment must contain in the caption or body of the indictment, the name of the state, county and court; the term in and at which the indictment is preferred; and must conclude ‘against the peace and dignity of the state of Tennessee.’ T.C.A. Sec. 40-13-201. 

So what do our courts do when the precise words in the Constitution or the statute are not used or are not used in the correct place in the indictment? 

They do justice.

For example, in State v. Holloman, 835 S.W.2d 42 (Tenn. 1992), the requisite language was not at the end of each of the eight counts of the indictment but was found only at the end of count four and count eight. Holloman was convicted only of counts one and five. He challenged his conviction on several grounds, including the fact that the indictments on the only counts he was convicted of did not include the language mandated by the Tennessee Constitution or the relevant statute. Each count of the indictment must be a complete indictment, he argued, citing Rice v. State, 50 Tenn. 215 (1871), and the failure to use the mandated words at the end of the counts that were the basis of his conviction required dismissal of the indictments and thus his conviction.

Predictably, and rationally, the Court rejected the argument, holding that “[s]ubstantial compliance with the requirement that an indictment conclude with the words ‘against the peace and dignity of the State’ is sufficient.” Holloman at 45. 

A district attorney failed to follow the precise language of the Constitution in Burton v. State, 377 S.W.2d 900 (Tenn. 1964). Rather than concluding the indictment with the mandated words, he (it is a fair assumption that it was a male attorney that messed this up given that the indictment was returned in 1962) put the language at the beginning of the third and final paragraph of count two of the indictment. The defendants sought dismissal for failure to follow the precise, unequivocal mandate of the Tennessee Constitution. 

The Court had sufficient sense and judgment to reject the argument. The Court said: “By holding that the words ‘against the peace and dignity of the State’ need not conclude each count of an indictment, Tennessee is aligned with those states which hold that a substantial compliance with the constitutional requirement as to the form of conclusion of an indictment is all that is required.” Id. 905.  

In yet another case, defendant challenged that fact the language of the indictment complied with the Tennessee Constitution but not the statute, which requires two additional words (“against the peace and dignity of the State of Tennessee”) (emphasis added). Notwithstanding the fact that the statute says the indictment must conclude with those precise words, the Tennessee Supreme Court said that “[i]n adding the words ‘of Tennessee,’ the legislature went beyond the constitutional requirement, and the added words must, therefore, be construed as merely directory and not mandatory.” 

Perhaps these examples can be dismissed as an effort by the courts not to elevate form over substance when dealing with the rights of people who are guilty of crimes. I mean, hell, if they weren’t guilty they wouldn’t be indicted, right? And if they weren’t guilty of what they were indicted for, then they were surely guilty of something or they never would have been arrested in the first place?  (Note: if you don’t see the sarcasm dripping off these words please leave this site immediately.)

I don’t think so. Rather, I think our courts have endeavored to inject a realistic approach to interpreting our statutes and our constitution, and have made a good faith effort to follow the public policy promoted by the provision at issue while at the same time viewing it in the light of the other public policy positions articulated by other statutes and other provisions of our Constitution. In the cases above, it is important that citizens accused of a crime be put on notice of the charges against them and that the interest that they are charged with offending is the interest of not just the citizens or property at issue but also the peace and dignity of all citizens as represented by the State of Tennessee. At the same time, it is essential that the citizens of Tennessee have the right to charge and, if appropriate, convict those who commit crimes against the state, and that right should not be frustrated by the omission or improper placement of a simple phrase that cannot have impacted the right of the defendant to be put on notice of the charges or to defend against those charges. To summarize, the doctrine of “substantial compliance” as applied in such cases allows substance to trump form.

We apply the same common sense rule to interpretation of election laws. For example, in State ex rel Williams v. Jones, 164 S.W.2d 823 (Tenn. 1942) the law required the filing of a sworn, detailed statement of campaign expenses not more than ten but no less than five days before an election. Williams won the election but he did not file his statement of expenses until three days before the election and the statement filed was not under oath. Thus, the local election commission refused to issue a certificate of election.

The Tennessee Supreme Court ordered the election commission to certify Williams as the winner of the election despite his failure to dot every "I" and cross every "t.". The court said:

In holding that the statute is mandatory in requiring a candidate to file a pre–election and post–election statement of expenditures and is directory merely as to the time when such statements must be filed, we do not mean that a candidate must not reasonably and substantially comply with the provisions of the act as to the time of filing his pre–election and post–election statements, for this he must do, and his failure so to do will be a ground for contest; and in a contest where a failure to reasonably and substantially conform to this, or any, requirement of the act is made a ground of contest, the question will be determined upon the circumstances of each particular case, for it is manifest that what would be a reasonable and substantial compliance with the provision in one case might not be so in another. But, having decided that the act is mandatory only in requiring that a statement in proper form must be filed before the election, and directory merely as to the time, it follows that, where a proper pre–election statement has been filed, the election is not void, unless the time at which the statement was filed was not a reasonable and substantial compliance with the law, and the burden is upon the contestant to plead and prove such a failure. In other words, the election is prima facie valid and not void where the candidate who receives the highest number of votes has complied with the mandatory provisions of the act.”

Id. at 826, quoting Sparkman v. Saylor, 202 S.W. 649, 652 (Ky. Ct. App. 1918) (candidate filed statement concerning expenses on the seventh, rather than the fifteenth, day before an election; election ratified).

Why did the Court say such a thing? The Court was obviously concerned that its actions might be viewed by some as an effort to “weaken our laws designed to prevent corrupt practices in elections.” Id  

The Court also looked to the practical impact of the failure to file the statement in a timely fashion: 

The election here under consideration was held in one ward only, that being one of the small wards of the City of Nashville. The statement filed by relator showed that his only pre–election expenses were $6.00 for cards printed and $15.00 for workers, or a total of $21.00. Had this statement, therefore, been received and made public by the Election Commissioners on Saturday, August 29, instead of August 31, it would have accomplished nothing of consequence. The sums expended were trivial and the voters of the single ward could have informed themselves as to relator’s expenses readily in three days. Indeed, since Saturday is generally a half holiday and Sunday a holiday, the voters would have probably had no greater opportunity to see the statement had it been filed on the 29th.

The Court also examined th the failure to comply with the mandate of filing a sworn statement, and held that this failure was not fatal to the candidate’s case. It said:

In the matter of pleading, the failure to verify a pleading to which an oath is required is generally a defect that can be remedied by amendment. That is to say the pleading can be sworn to at a later date, unless something in the statute or rule prescribing the oath requires a contrary conclusion. 49 C.J. 485, 595; 41 Am.Jur. 487. We may apply this rule here.

On September 5, 1942, the relator filed an amended statement as of August 28, 1942, setting out the same items of pre–election expenses contained in his unsworn statement. This statement filed on September 5 was duly verified by oath. Likewise on September 5 relator filed the post–election statement of expenses required by Code, section 2262.

The Board of Election Commissioners met on September 7, 1942, to certify the vote and on that day took the action in which they refused to give relator a certificate of election. At the time, therefore, the Board met, duly verified statements of relator’s expenses were before them. The Board’s receipt of the statement on August 31 being a substantial compliance with the statutory provision as to the time of filing, and the amendment of the pre–election statement by oath on September 5 relating back, we think that relator was entitled to have the Board of Election Commissioners issue him his certificate herein sought.


Once again, we see a common sense approach to statutory construction designed to and accomplishing a worthy goal:  elevate substance over form. To be sure, we must ferret out corruption in campaigns, and transparency in campaign finances advances that effort. But as a society we want elections to be resolved on the values and intellect of the candidates and the merits of their positions, not on whether some disclosure form got filed on exactly on time and in the precise form.  As the judicial branch strives to reach just results that advances all interests it must look to the practical impact of the failure to strictly comply with statutory directives and not permit minor errors to void elections.

Tennessee follows the "substantial compliance" rule in other situations, too. In State of Tennessee v. Quarterly Court, 351 S.W.2d 153 (Tenn. 1961), the court considered whether school board bonds could be properly issued when there was a failure to give the ten days prior notice of an election on the issue as required by applicable statute (only eight days prior notice was given). The Court held that (a) the ten day period notice was “directory only; and (b)  eight days prior notice was substantial compliance with the notice provision. Thus, the Court upheld the right of the Quarterly Court to issue the bonds. The Court looked to the circumstances in the community to guide its decision and noted that “[i]t appears that this election was given widespread newspaper publicity and that every interested citizen had an opportunity to vote and a great majority of them did in fact vote on this referendum.” Id. at 115.

In Partee v. Pierce, 553 S.W.2d 602 (Tenn. Ct. App. 1977) (rev’d on other grounds in Gibson County Special School District v. Palmer, 691 S.W.2d 544, 549 (Tenn. 1985), the statute required at least twenty days prior notice of an election and notices were four or five days late. The Court found that “the short delay in publishing the official notice [was] relatively unimportant” and that the results of the election were valid notwithstanding the late notice.

Indeed, the elevation of substance over form  in election law generally is explained  in Forbes v. Bell, 816 S.W.2d 716, 721 (Tenn. 1991):

technical non-conformity with election statutes will not necessarily void an election, as “such strictness would lead to defeat rather than uphold, popular election, and can not be maintained.” McCraw v. Harralson 44 Tenn. 34 (1867). Invalidating an election solely on the basis of technical omissions, much like failing “to cross a ‘t’ or dot an ‘i’,” would effectively disenfranchise voters. Foust v. May, 660 S.W.2d 487, 490 (Tenn.1983).

Similarly, Tennessee provides that a “minor deviation from the statutory procedure for summoning the venire” for a grand jury does not void an indictment in the absence of a showing of fraud or prejudice. State v. Wiseman, 643 S.W.2d 354, 360 (Tenn. Ct. Crim. App. 1982). 

This is not to say that notice statutes are simply strong suggestions. For example, in Town of Surgoinsville v. Sandidge, 866 S.W.2d 553 (Tenn. Ct. App. 1993) the Court of Appeals struck down a zoning ordinance enacted with only eleven days of prior notice (fifteen days was required under the statute). But even this case does not change the point this author is attempting to make, because I am addressing not whether notice was given in a timely manner but rather whether notice was given and later pleaded in the precise manner set forth in the statute.  A far different kettle of fish, I suggest.

There is no good reason that the "substantial compliance" test should not apply to the analysis of whether a technical defect in notice to a potential defendant in a health care liability action should void the notice entirely and thus mandate dismissal of the case. It is true that the Legislature has determined that health care providers have the right to be sent advance notice that a health care liability action will be filed against them.   It is also true that there is a statutory cause of action that allows citizens of this state to sue health care providers for professional negligence. Those statutes, read together and coupled with over 100 years of “substantial compliance” analysis applied to a wide variety of statutes and our state Constitution,  give the courts the power and indeed the duty to elevate substance over form. Remember too that the courts have a right to presume that the General Assembly knows the state of the law when it passed these statutes, Lee Medical, Inc.  v. Beecher, 312 S.W. 3d 515, 525 (Tenn. 2010) and thus is presumed to have known that “substantial compliance” with the notice statute would further the rights of health care liability defendants while at the same time protecting the right of those asserting professional liability claims against health care providers.

(Other than over 100 years of established law, I hasten to add that perhaps  the best argument for use of the “substantial compliance" test is that the health care liability statute doesn’t require actual notice to be received by the defendant – it only sets out that notice be sent in the matter described. If notice is sent appropriately it is no defense that the notice is not actually received by the provider. In essence, then, the General Assembly has declared that notice is important, but not so important to require actual notice as condition precedent to bringing a health care liability claim.   Thus, absent a substantial compliance test, we can end up in a topsy-turvy world where defendants who receive imperfect notice can insist on dismissal with prejudice but those who do not receive perfect notice must face a trial. Does that make sense to anyone?)

So, how should the "substantial compliance" rule apply in such cases? If notice was sent and received but a defendant complains that some aspect of the notice statute was not complied with, the defendant should articulate each claimed defect in the answer  and/or an appropriate motion.   The defendant should have the burden of proving each defect, and then the plaintiff should have the burden of demonstrating substantial compliance with the statute.

One element of the  inquiry is whether the defendant asserts that he, she or it suffered any prejudice because of the imperfect compliance. If the defendant asserts prejudice, it must prove it and plaintiff should be given the opportunity to put on evidence  that the no material prejudice existed or that any claim of prejudice has been or can be readily rectified at no ultimate harm to defendant.

In the final analysis. the courts should examine the issue of whether the statute was substantially complied  with such that the defendant was sent notice of the possibility of the initiation of  the suit that was actually filed. There are too many possible technical violations to discuss each in detail, but at the end of the day the inquiry needs to focus on whether the “essence of [giving notice] was accomplished.” See Myers v. AMISUB (SFH), Inc., 382 S.W.3d 300, 307 (Tenn. 2012); Foster v. Chiles, No. E2012-01780-COA-R3-CV, 2013 WL 3306594 *6-7 (Tenn. Ct. App. June 27, 2013). If such a test was utilized in cases in which notice was in fact received,  the vast majority of technical violations will be excused, especially in the absence of any showing of prejudice by the defendant.

If the defendant never received notice and the notice was imperfect in some way, the inquiry should expand to see if the imperfection was the cause of the failure to the defendant to receive notice. 

In summary, Tennessee courts have over a century of case law that has applied the "substantial compliance" test to "mandates" of our Constitution and a variety of statutes. This test should also be applied to allegations of technical violations of TCA Sec. 29-26-121.  Lawyers have  lots of precedent and policy arguments  at their disposal to urge the courts to use the test to reach a sane, fair resolution of these disputes.

Addendum:  several folks have commented that the "substantial compliance" test will not be adopted by the Tennessee Supreme Court because the test was rejected in Myers v. AMISUB.   I disagree. Myers addressed a situation in which the plaintiff did not make an effort to give pre-suit notice or file a certificate of merit as required by the statutes.  This post addresses the situation where the plaintiff gave pre-suit notice that was in fact received by the proper defendant but failed to follow the precise dictates of the statute.  The Court has yet to rule on this issue as well as the issue of the impact, if any, of the failure to give notice or to strictly comply with the notice statute. 

Nor does the language of the statute which allows for non-compliance only after a  showing of "extraordinary cause"  impact the proposed test.  The "extraordinary cause" test applies to the failure to give notice, not the failure to dot every "I" and cross every "t."   The essence of the statute is the giving of written notice of a potential claim, and if the defendant has that notice, even if imperfect, the statute has been complied with, especially in the absence of prejudice.