Margaret Huff Mediation
Margaret Huff Mediation PO Box 121951 Nashville TN 37212-1951
Tenn. Code Ann. §29-26-121 (originally enacted, Acts 2008, ch. 919, § 1; amended in 2009, ch. 425, § 1).
In Karah DePue, et al. v. Charles D. Schroeder, et al., No. E2010-00504-COA-R9-CV (Tenn. Ct. App. February 15, 2011), the Court of Appeals interpreted the notice requirements of Tenn. Code Ann. §29-26-121(a). The plaintiffs had not given notice, "at least 60 days before the filing of their Complaint," as required by the Tennessee Medical Malpractice Act. The Trial Court excused compliance with the requirement. The Court of Appeals reversed, on the grounds that non-compliance with the notice requirement could only be excused upon the showing of extraordinary cause. In this case, the lawyer's inattention/misunderstanding was not a sufficient basis to meet the statute's "extraordinary cause" exception to the notice requirement. The dissenting judge would have excused non-compliance because the plaintiff's attorney had complied with another requirement of the Act - the filing of a Certificate of Good Faith - to indicate that the claim had some merit. In Shawn Howell v. Claiborne and Hughes Health Center, No. M2009-01683-COA-R3-CV (Tenn. Ct. App. June 24, 2010), perm app. granted December 7, 2010, voluntarily dismissed January 19, 2011, the Court of Appeals excused compliance with the notice requirements of Tenn. Code Ann. §29-26-121(a) (2008). The facts in the case are unique. In 2007, prior to enactment of the Tennessee Medical Malpractice Act of 2008, the plaintiff filed a medical malpractice suit that was subsequently non-suited. Less than a year later, and 5 days after the effective date of the Medical Malpractice Act, the plaintiff re-filed the claim. The trial court dismissed the complaint for, among other things, failure to comply with the notice requirements in Tenn. Code. Ann. § 29-26-121. Adopting the analysis of Jenkins v. Marvel, 683 S. Supp.. 2d 626 (E.D. Tenn. Jan. 14, 2010), the Court of Appeals reversed: the defendant had "actual notice of the claim more than one year prior to the filing of the present action." The Jenkins court had found that the purpose of the Tennessee Medical Malpractice Act was to weed out meritless lawsuits and provide at least two months notice before a medical malpractice lawsuit is filed to help resolve the case before going to court. The Tennessee statute was similar to a Texas statute whose purpose was to provide notice and "'to facilitate early resolution of cases through settlement.'" Jenkins at 639.
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