Being incarcerated does not constitute extraordinary cause and does not waive the pre-suit notice and certificate of good faith requirements of the HCLA.
In Kinsey v. Schwarz, No. M2016-02028-COA-R3-CV (Tenn. Ct. App. Aug. 18, 2017), a pro se prison inmate filed an HCLA suit regarding an allegedly “botched surgical procedure performed on his lower back.” Defendants included two doctors and a medical center. In plaintiff’s complaint, he stated that he “attempted to give [the two doctors] pre-suit notice on February 8, 2016 at their place of employment (or business address) by certified mail returned receipt as required…, but that both notices were returned to him as ‘refused’ by the defendants.” Plaintiff filed his complaint on March 28, 2016, without sending additional notice, and he did not attach a certificate of good faith.
Defendants filed motions to dismiss based on the lack of pre-suit notice and certificate of good faith, prompting plaintiff to file “a document entitled ‘Certificate of Good Faith’ in which he asked the trial court to waive the requirement that he file a certificate of good faith because of his alleged inability to comply due to reasons outside of his control.” Specifically, plaintiff stated that the prison doctor “refuse[d] to get involved in this case” and that his incarceration meant he was “unable to freely consult with other physicians.”