Pre-Suit Notice Sent Via FedEx Substantially Complied with HCLA

In Arden v. Kozawa, No. E2013-01598-SC-R11-CV (Tenn. June 30, 2015), the Supreme Court addressed the issue of whether a plaintiff in a medical malpractice ( now known as a “health care liability” ) lawsuit can send pre-suit notice via a commercial carrier like FedEx instead of through the U.S. mail. The Court’s sensible and clearly correct conclusion was that service by FedEx was allowed, finding that “[a]s long as a defendant is not prejudiced, it does not matter whether a commercial carrier or the U.S. Postal Service delivers the notice.”

In Arden, plaintiff gave proper notice in a timely fashion before filing a health care liability (HCLA) suit. The problem, as defendants pointed out in their motion for summary judgment, was that plaintiff sent the notice via FedEx Priority service. Tenn. Code Ann. § 29-26-121(a)(4) states that completion of the mailing requirements in the notice statute “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.” Defendants did not assert that the notice was insufficient, untimely, or not received, but instead argued that plaintiff had failed to comply with the statutory pre-suit notice requirements by using FedEx instead of the post office. The trial court agreed, dismissing plaintiff’s case, and the Court of Appeals affirmed.

In overturning this result, the Supreme Court held that “the manner and proof of service requirements…are not mandatory, but directory, and can be achieved through substantial compliance. So long as a health care defendant is not prejudiced by a plaintiff’s deviations from the statutorily prescribed method of service—‘certified mail, return receipt requested’—or the proof of service requirement—‘filing a certificate of mailing from the United States Postal Service’—substantial compliance with these statutory requirements will suffice.” More specifically as to this case, the Court held that “delivery of pre-suit notice by private commercial carrier, such as FedEx, and filing of proof with the complaint constitutes substantial compliance with sections 29-26-121(a)(3)(B) and (a)(4)[.]” Accordingly, the Court reversed the lower courts’ decision and remanded the case.

This was clearly the correct result in this case. Whether a defendant receives notice from a mail truck or a FedEx truck should not matter—the purpose of the statute, notice at least 60 days before the filing of an HCLA claim, is fulfilled either way.      Dismissal due to such a hyper-technical error was certainly not the intent of this portion of the statute.

Another important note for HCLA attorneys came in a brief footnote in this case (note 6). Tenn. Code Ann. § 29-26-121(a)(3)(B)(1) states that pre-suit notice must be mailed to the potential defendant’s “address as indicated on the Tennessee Department of Health website.” In the instant case, plaintiff sent the doctor’s notice to the hospital address, which was similar to the address listed by the doctor on the website. The doctor did not allege that he failed to receive the notice or was prejudiced in any way by the error in the address. The Supreme Court found the notice sufficient, holding that “substantial compliance is sufficient to satisfy the requirement of section 29-26-121(a)(3)(B)(1).”

Overall, this case shows a reasonable and sensible approach to the pre-suit notice requirements. Requiring substantial compliance so long as a defendant is not prejudiced makes sense and allows more cases to be determined on the merits, which of course should be the ultimate goal.

Hopefully we are nearing the end of litigating the “notice” issue in these cases.  How many millions of dollars in legal fees have been spent fighting over  the meaning of a law that was whose purpose was to give defendants the opportunity to settle cases before suit was filed?