“Extraordinary Cause” Under HCLA Notice Statute

When a plaintiff’s lawyer terminates his representation just weeks before the statute of limitations is set to expire on a health care liability claim, this termination may constitute extraordinary cause to excuse the plaintiff’s noncompliance with certain pre-suit notice and certificate of good faith requirements.

In Reed v. West Tennessee Healthcare, Inc., No. W2018-00227-COA-R9-CV (Tenn. Ct App. Oct. 8, 2018), plaintiff was injured when he fell while in the hospital being treated for a different injury on October 18, 2015. He retained counsel over four months before the statute of limitations was set to run on his health care liability claim, but just a few weeks before it expired, the attorney terminated his representation of plaintiff. Plaintiff then sent a letter dated October 7, 2016 to a hospital executive stating that he had been injured and demanding compensation. He subsequently filed his HCLA complaint on October 14, 2016, which was within the one-year statute of limitations, but he did not attach a Certificate of Good Faith to his complaint. After he filed his complaint, he hired a new attorney.

Defendant filed two motions to dismiss, one based on plaintiff’s failure to attach a Certificate of Good Faith and one based on plaintiff’s failure to follow the pre-suit notice requirements by failing to give his notice 60 days before he filed the complaint, failing to provide a HIPAA authorization, failing to provide an affidavit from the party who mailed the notice, and failing to state that he had complied with the statute. The trial court denied both motions, finding that the termination of representation just weeks before the statute of limitations ran constituted extraordinary cause under the HCLA and thus excused compliance with these requirements. The Court of Appeals affirmed.

The Court noted that “extraordinary cause” is not defined in the HCLA, but that it “might include illness of the plaintiff’s lawyer, a death in that lawyer’s immediate family, or illness or death of the plaintiff’s expert in the days before the filing became necessary.” (internal citation and quotation omitted). Defendant argued that “being pro se does not constitute extraordinary cause to excuse compliance” with the HCLA, and while the Court “did not disagree with [that] statement,” it found that such a characterization was inaccurate here. The Court reasoned:

This is not a situation wherein Plaintiff was proceeding pro se the entire time and simply was ignorant of the law. …Plaintiff hired an attorney to handle his suit well before the expiration of the statute of limitations. The record further reveals that Plaintiff’s prior counsel then terminated the representation only a few weeks before the expiration of the statute of limitations. This left Plaintiff, who until that time reasonably had expected to by represented by and to rely on counsel, in the unenviable position of either attempting to hire new counsel within a very tight timeframe, filing his suit pro se, or losing his cause of action. Plaintiff chose to file pro se in an attempt to protect his cause of action. He was then able to hire new counsel. We agree with the Trial Court’s assertion that the [HCLA] did not contemplate a party, who had hired a lawyer to handle the technical aspects of an action, having to learn the [HCLA] in two weeks. We find that the situation in the case now before us is more akin to a situation wherein a lawyer dies in the days before the filing became necessary…

The Court ultimately held that “termination of representation by Plaintiff’s prior legal counsel a few weeks prior to the expiration of the statute of limitations does constitute the type of extraordinary cause contemplated” by the HCLA. Denial of the motions to dismiss was affirmed.