Day on Torts
When an HCLA plaintiff decides to serve pre-suit notice via personal service, such service must actually be completed in accordance with the statute in order for the plaintiff to take advantage of the 120-day extension of the statute of limitations.
In Webb v. Magee, No. 2018-01305-COA-R3-CV (Tenn. Ct. App. April 30, 2019), plaintiffs had filed a previous healthcare liability claim under the HCLA against multiple parties, including Dr. Charles Roberson. Plaintiffs attempted to personally serve Dr. Roberson with pre-suit notice within the one-year statute of limitations, but service of the pre-suit notice was not actually completed until almost two months later. One week after Dr. Roberson received pre-suit notice, plaintiffs filed their initial suit.
In the first suit, the trial court granted summary judgment for defendant Dr. Robertson, finding the suit was not filed within the statute of limitations. Plaintiffs appealed, challenging the constitutionality of the HCLA. In that first appeal, the Court of Appeals held that the HCLA was constitutional, and after remand, plaintiffs filed a voluntary dismissal.
This second suit was filed by plaintiffs against defendant Dr. Robertson pursuant to the savings statute after giving defendant pre-suit notice via certified mail. Defendant filed a motion to dismiss, arguing that plaintiffs “could not rely upon the saving statute…when the initial suit was untimely filed.” The trial court granted the motion to dismiss, and the Court of Appeals affirmed.
Plaintiffs’ primary argument here was that an attempt to give pre-suit notice via personal service should be treated the same as an attempt by certified mail.
Plaintiffs argue that they are entitled to the 120-day extension because they made a valid attempt at personal service within the statute of limitations. They note that service by mail is complete upon mailing and that the legislature does not require the addressee to sign or return the return receipt card, thereby establishing that service may be valid even when not actually successful. They explain, ‘Thus, even if the potential defendant did not actually receive the notice, and even in the never-received HIPAA authorizations were woefully inadequate, that plaintiff will get the benefit of the 120-day extension. As a matter of internal statutory consistency, and contrary to the defense position, the same result must apply to the situation where a valid attempt at personal service is made within the statute of limitations.’
The Court rejected this argument, finding that the HCLA provides two choices for giving pre-suit notice, and that a plaintiff must comply with the requirements surrounding the one they choose. “The parameters of each form are adequately delineated in the statutes. Plaintiffs chose to attempt personal service, therefore, they must show compliance with that form of service in order to garner the benefit of the 120-day extension of the statute of limitation.” Because plaintiffs here failed to comply with the statute in the first lawsuit, the Court affirmed dismissal of the case.
Plaintiffs also challenged the constitutionality of the HCLA on appeal, claiming the statute was preempted by HIPAA. The Court of Appeals found the HCLA constitutional, quoting extensively from another opinion in which the Court found that a “patient was consenting to the disclosure of medical records by pursuing a health care liability claim.” The Court stated that “[l]ogically, when a plaintiff waives the right to privacy, there can be no violation of that right,” and that “[b]ecause pursuing a health care liability action constitutes a voluntary waiver, there can be no violation of the right to privacy.” (internal citation omitted).
This biggest take-away here is that an attempt at personal service of pre-suit notice is not enough. While pre-suit notice via certified mail is considered complete upon mailing, pre-suit notice via personal service “must be established by an affidavit stating that the notice was personally delivered and the identity of the individual to whom the notice was delivered[.]” (Tenn. Code Ann. Section 29-26-121). And this service must be complete before the statute of limitations otherwise expired.