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ADR Resources: TN Med Mal Act
Tennessee Medical Malpractice Act Notice Requirements.
One of the purposes of the Tennessee Medical Malpractice Act is to help parties resolve malpractice claims early through settlement

I.  Statute's notice requirements
II. Cases 


Statute's notice requirements. The Act provides in Section 29-26-121:
(a)(1)  Any person, or that person's authorized agent, asserting a potential claim for medical malpractice shall give written notice of the potential claim to each health care provider that will be a named defendant at least sixty (60) days before the filing of a complaint based upon medical malpractice in any court of this state. 
(2)  The notice shall include:  (A)  The full name and date of birth of the patient whose treatment is at issue; (B)  The name and address of the claimant authorizing the notice and the relationship to the patient, if the notice is not sent by the patient; (C)  The name and address of the attorney sending the notice, if applicable; (D)  A list of the name and address of all providers being sent a notice; and (E)  A HIPAA compliant medical authorization permitting the provider receiving the notice to obtain complete medical records from each other provider being sent a notice.
(3)  The requirement of service of written notice prior to suit is deemed satisfied if, within the statutes of limitations and statutes of repose applicable to the provider, one of the following occurs, as established by the specified proof of service, which shall be filed with the complaint:  (A)  Personal delivery of the notice to the health care provider or an identified individual whose job function includes receptionist for deliveries to the provider or for arrival of the provider's patients at the provider's current practice location. Delivery 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; or (B)  Mailing of the notice: (i)  To an individual health care provider at both the address listed for the provider on the Tennessee department of health web site and the provider's current business address, if different from the address maintained by the Tennessee department of health; provided, that, if the mailings are returned undelivered from both addresses, then, within five (5) business days after receipt of the second undelivered letter, the notice shall be mailed in the specified manner to the provider's office or business address at the location where the provider last provided a medical service to the patient; or (ii)  To a health care provider that is a corporation or other business entity at both the address for the agent for service of process, and the provider's current business address, if different from that of the agent for service of process; provided, that, if the mailings are returned undelivered from both addresses, then, within five (5) business days after receipt of the second undelivered letter, the notice shall be mailed in the specified manner to the provider's office or business address at the location where the provider last provided a medical service to the patient.
(4)  Compliance with the provisions of subdivision (a)(3)(B) shall be demonstrated by filing a certificate of mailing from the United States postal service stamped with the date of mailing and an affidavit of the party mailing the notice establishing that the specified notice was timely mailed by certified mail, return receipt requested. A copy of the notice sent shall be attached to the affidavit. It is not necessary that the addressee of the notice sign or return the return receipt card that accompanies a letter sent by certified mail for service to be effective.

(b)  If a complaint is filed in any court alleging a claim for medical malpractice, the pleadings shall state whether each party has complied with subsection (a) and shall provide the documentation specified in subdivision (a)(2). The court may require additional evidence of compliance to determine if the provisions of this section have been met. The court has discretion to excuse compliance with this section only for extraordinary cause shown.

(c)  When notice is given to a provider as provided in this section, the applicable statutes of limitations and repose shall be extended for a period of one hundred twenty (120) days from the date of expiration of the statute of limitations and statute of repose applicable to that provider. Personal service is effective on the date of that service. Service by mail is effective on the first day that service by mail is made in compliance with subdivision (a)(2)(B). In no event shall this section operate to shorten or otherwise extend the statutes of limitations or repose applicable to any action asserting a claim for medical malpractice, nor shall more than one (1) extension be applicable to any provider. Once a complaint is filed alleging a claim for medical malpractice, the notice provisions of this section shall not apply to any person or entity that is made a party to the action thereafter by amendment to the pleadings as a result of a defendant's alleging comparative fault.

(d)(1)  All parties in an action covered by this section shall be entitled to obtain complete copies of the claimant's medical records from any other provider receiving notice. A party shall provide a copy of the specified portions of the claimant's medical records as of the date of the receipt of a legally authorized written request for the records within thirty (30) days thereafter. The claimant complies with this requirement by providing the providers with the authorized HIPAA compliant medical authorization required to accompany the notice. The provider may comply with this section by: (A)  Mailing a copy of the requested portions of the records with a statement for the cost of duplication of the records to the individual requesting the records; (B)  Informing the individual requesting the records that the records will be mailed only upon advance payment for the records for the stated cost of the records, calculated as provided in § 63-2-102. Any request for advance payment must be made in writing twenty (20) days after the receipt of the request for medical records. The provider must send the records within three (3) business days after receipt of payment for the records; or (C)  Fulfilling such other method that the provider and the individual requesting the records agree to in writing.
(2)  The records received by the parties shall be treated as confidential, to be used only by the parties, their counsel, and their consultants.

(e)  In the event that a complaint is filed in good faith reliance on the extension of the statute of limitations or repose granted by this section and it is later determined that the claim is not a medical malpractice claim, the extension of the statute of limitations and repose granted by this section is still available to the plaintiff.
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Tenn. Code Ann. §29-26-121 (originally enacted, Acts 2008, ch. 919, § 1; amended in  2009, ch. 425, § 1).

II.  Cases

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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