Day on Torts

Pre-suit notice in Tennessee health care liability cases continues to be a huge problem for victims of medical malpractice. In this case, Plaintiff sent notice, included all of the necessary forms and paperwork, and attached it to the complaint – but it turned out to be sent to the wrong legal entity, one who had a business name extremely similar to the company who provided the care at issue in the case.

Plaintiff’s brother was a patient at a mental health facility who died allegedly due to substandard care.  Plaintiff sent pre-suit notice to Foundation, who she thought ran the facility, and filed suit against Foundation after waiting the requisite 60 days.  Foundation’s answer, however, said that it was a fund-raising company that provided no health care whatsoever.  Foundation’s answer stated that Cooperative, a related company, was actually who provided care to Plaintiff’s brother. 

Plaintiff moved and was granted leave to amend.  The Court of Appeals described it as a Tennessee Rule of Civil Procedure 15.03 motion to correct the misnomer.  However, it is unclear from the opinion if that is how Plaintiff herself described her motion.  It is also unclear if the motion was to add Cooperative as an additional defendant based on Foundation’s answer, or if the motion was to substitute Cooperative for Foundation.

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.

No, you did not read the headline wrong.  The company that insures doctors for medical malpractice claims in Georgia is opposing a tort reform measure being pushed by a group of healthcare administrators.

What is going on?  A group of  healthcare administrators in Georgia  has formed an organization called "Patients for Fair Compensation" (has a nice ring to it, doesn’t it?) that is seeking a new law which would move medical malpractice claims out of the courts and into an administrative system overseen by a "Patient Compensation Board" within the Department of Community Health.

Those supporting the legislation say that the new system, which would be similar to the way Georgia  worker’s compensation claims are processed,  would reduce healthcare costs.  In essence, the proposed legislation would create a no-fault system for awarding limited compensation for victims of medical malpractice.  It would be funded by fees that would be paid by doctors and by hospitals.