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Tuesday, July 21, 2015

New Health Care Liability Action Opinion: Trial Court's Allowance of a Nonsuit to Cure Noncompliance with Presuit Notice Requirements Upheld on Appeal

The Tennessee Court of Appeals just issued its opinion in Phillips v. Casey, No. E2014-01563-COA-R9-CV (Tenn. Ct. App. Jul. 21, 2015).  The summary from the opinion states as follows:
This is a health care liability action. The plaintiff‟s late husband died following a bilateral tonsillectomy surgery. An autopsy determined that the cause of death was angioedema. The plaintiff filed suit against the defendants exactly one year after her husband‟s death. The complaint did not comply with the pre-suit notice requirements for health care liability suits. The plaintiff voluntarily dismissed the suit without prejudice and re-filed suit. The defendants moved to dismiss, claiming that the re-filed suit was barred. The trial court denied the motion to dismiss and a subsequent motion to reconsider but granted permission to file an interlocutory appeal pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure. We granted permission to appeal and now affirm the decision of the trial court.
(Footnote omitted.)

Here is a link to the opinion:

Tuesday, July 07, 2015

New Tennessee Supreme Court Health Care Liability Action Opinion: Delivery of Presuit Notices via FedEx Substantially Complies with Presuit Notice Statute

The Tennessee Supreme Court recently released its opinion in Arden v. Kozawa,No. E2013-01598-SC-R11-CV (Tenn. Jun. 30, 2015).  The summary from the opinion reads as follows:
The primary issue presented is whether a health care liability case must be dismissed because the plaintiff sent the health care defendants pre-suit notice of the claim via a commercial carrier, FedEx, instead of using certified mail, return receipt requested, through the United States Postal Service. The defendants moved for summary judgment, asserting that the plaintiff failed to comply with the requirements of Tennessee Code Annotated sections 29-26-121(a)(3)(B) and (a)(4) (2012). The defendants did not allege they failed to receive notice or were prejudiced by the plaintiff's method of service. The trial court dismissed the complaint, holding that strict compliance with the manner and proof of service requirements of Tennessee Code Annotated sections 29-26-121(a)(3)(B) and (a)(4) was required. The Court of Appeals affirmed, holding that substantial compliance was sufficient to satisfy the statutory content requirements of the notice, but that the plaintiff's failure to send the notice by certified mail constituted deficient service.  We hold that the manner and proof of service prescribed by Tennessee Code Annotated sections 29-26-121(a)(3)(B) and (a)(4) may be achieved through substantial compliance.  The defendants received notice and were not prejudiced by the manner of service.  Therefore, the use of FedEx to deliver the notice and the filing of proof of service with the complaint constituted substantial compliance with the manner and proof of service requirements of the pre-suit notice statute. The judgment of the Court of Appeals is reversed, and the case is remanded to the trial court for further proceedings.
Here's a link to the opinion:

NOTE: This is a good decision because Tennessee has a long-established, oft-repeated policy of deciding cases on their merits and not on procedural technicalities.  I applaud the Tennessee Supreme Court for doing the right thing in this instance.