Day on Torts
Being incarcerated does not constitute extraordinary cause and does not waive the pre-suit notice and certificate of good faith requirements of the HCLA.
In Kinsey v. Schwarz, No. M2016-02028-COA-R3-CV (Tenn. Ct. App. Aug. 18, 2017), a pro se prison inmate filed an HCLA suit regarding an allegedly “botched surgical procedure performed on his lower back.” Defendants included two doctors and a medical center. In plaintiff’s complaint, he stated that he “attempted to give [the two doctors] pre-suit notice on February 8, 2016 at their place of employment (or business address) by certified mail returned receipt as required…, but that both notices were returned to him as ‘refused’ by the defendants.” Plaintiff filed his complaint on March 28, 2016, without sending additional notice, and he did not attach a certificate of good faith.
Defendants filed motions to dismiss based on the lack of pre-suit notice and certificate of good faith, prompting plaintiff to file “a document entitled ‘Certificate of Good Faith’ in which he asked the trial court to waive the requirement that he file a certificate of good faith because of his alleged inability to comply due to reasons outside of his control.” Specifically, plaintiff stated that the prison doctor “refuse[d] to get involved in this case” and that his incarceration meant he was “unable to freely consult with other physicians.”
The trial court granted defendants’ motions to dismiss, and the Court of Appeals affirmed.
The two parts of the HCLA involved in this case, the requirement for pre-suit notice and a certificate of good faith, have been interpreted by the Tennessee Supreme Court as being “mandatory.” “[B]oth the pre-suit notice requirement and the certificate of good faith requirement are ‘precisely stated’ and ‘provide clear guidance and detailed instruction for meeting those requirements.’ Neither requirement can be satisfied by substantial compliance.” (citing Myers v. AMISUB (SFH), Inc., 382 S.W.3d 300 (Tenn. 2012)).
Regarding notice, the HCLA states that pre-suit notice must be given at least 60 days before suit is filed, and that it can be served via personal delivery or by mail. If by mail, the statute specifies that it be sent 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…” (Tenn. Code Ann. § 29-26-121(a)(3)(B)). In this case, plaintiff failed to comply with the statute by sending his notices only to the two doctors at the addresses “where [they] provided medical services to him,” rather than the addresses listed on the Department of Health web site or the current business addresses, and by sending the notices only 48 days before he filed his complaint. Further, pre-suit notice was never attempted on the medical center.
Plaintiff argued that “he was unable to obtain the physicians’ addresses on the Tennessee Department of Health’s web site or their current business address because he did not have access to a computer.” Plaintiff failed to raise this argument at the trial court level, though, so this issue was waived on appeal. Plaintiff further argued that he had substantially complied by mailing the pre-suit notice letters to the addresses where he was given medical treatment. In support of this argument, he cited a previous Tennessee case in which the Supreme Court found that the “manner and proof of service requirements” in the HCLA pre-suit notice statute could be met through substantial compliance. (citing Arden v. Kozawa, 466 S.W.3d 758 (Tenn. 2015)). In that case, the Supreme Court found that service made be FedEx but actually received at the correct place by defendants was sufficient. Here, however, the Court pointed out that the pre-suit notices were “returned to [plaintiff] as undeliverable,” and that neither physician actually received the notices. Thus, the Court held that plaintiff had “not demonstrated extraordinary cause to justify the waiver or excuse of his obligation to comply with the pre-suit notice as required by” the HCLA.
Regarding the certificate of good faith, plaintiff asserted that the trial court should have waived the requirement “because he was incarcerated and was unable to find a physician who would be willing to review his medical records and verify that he was filing the lawsuit in good faith.” The Court pointed out that a similar argument by an inmate had been rejected before, and that another case found that a “plaintiff’s pro se status was not enough…to excuse the filing of a certificate of good faith.” (citations omitted). Further, the Court noted that plaintiff “does not cite any case in which a court has waived altogether the filing of the certificate of good faith[.]” Based on the HCLA and previous case law, the Court held that dismissal was appropriate here.
Showing that HCLA requirements should be waived due to extraordinary cause is difficult and happens infrequently. Being in prison or being pro se is not considered extraordinary in the sense that it will get a plaintiff off the hook on pre-suit notice or a certificate of good faith.