Day on Torts
The Court of Appeals recently examined whether the sickness and death of a lawyer’s child constituted extraordinary cause under the HCLA, finding that it did in fact excuse noncompliance with the statute.
In Kirby v. Sumner Regional Medical Center, No. M2015-01181-COA-R3-CV (Tenn. Ct. App. July 12, 2016), plaintiff was treated at the defendant hospital in June 2013, and plaintiff alleged that the treatment she received fell short of the required standard of care. Well before the one-year statute of limitations, on January 31, 2014, plaintiff’s counsel sent a fax to defendant regarding the claim. No other correspondence was sent, but on the day the one-year statute of limitations was to expire, plaintiff filed suit. Plaintiff attached a certificate of good faith to her complaint, but she admittedly had not served the statutorily required pre-suit notice with attached HIPAA release.
Defendant moved to dismiss the case based on the lack of pre-suit notice. In response, plaintiff’s counsel pointed out that his son was born on March 6, 2014, and subsequently died on June 20, 2014, just days before the statute of limitations was set to expire on this claim. Counsel stated that “[f]or the few months my son lived, there were frequent periodic indications that each day could be his last, including a few serious hospitalizations.” In his memorandum opposing dismissal, plaintiff’s counsel asserted:
I was extremely upset and not thinking clearly shortly after my son’s death. Unable to take any time off from my solo practice, I went from courthouse to courthouse a couple of weeks thereafter in a somewhat zombie-like state. I am unable to give specifics regarding my thought process at the time of the filing of the complaint. I just knew the statute of limitations was approaching and it was on my list of deadlines to meet. …The filing of the complaint before sending Notices of Intent and otherwise complying with the statute was a result of the aforementioned illness and death.
Despite these facts, the trial court found that no extraordinary cause existed to excuse plaintiff’s lack of timely pre-suit notice. The Court of Appeals overturned this finding.
The HCLA requires pre-suit notice, and such requirement can only be excused by extraordinary cause. Tenn. Code Ann. § 29-26-121. The statute does not define “extraordinary cause,” so Tennessee courts have interpreted it to retain its “plain and ordinary meaning.” (internal citation omitted). The Tennessee Supreme Court has stated that “possible examples of extraordinary cause might include illness of the plaintiff’s lawyer, a death in that lawyer’s immediate family, or illness or death of the plaintiff’s expert in the days before the filing became necessary.” (internal citation omitted).
Here, defendant asserted that the illness and death of counsel’s son could not excuse the failure to give pre-suit notice because they pointed to the fax sent in January as an attempt at pre-suit notice, albeit a sorely insufficient one. Since the baby was not born until March, defendant argued that his illness was irrelevant to this issue. The Court, though, disagreed. First, the Court noted that the fax sent in January did not purport to be a statutory pre-suit notice. The letter stated that it was “an attempt to satisfactorily resolve this matter without the need for litigation.” Further, the Court pointed out that counsel had until June 24, 2014, to file pre-suit notice, which was four days after the death of his son. In holding that plaintiff had demonstrated extraordinary cause to excuse her noncompliance, the Court stated:
Here, Counsel explained that his son, born on March 6, 2014, experienced frequent periods of hospitalization before finally passing on June 20, 2014. We acknowledge Counsel’s difficulty in maintaining his practice during the short life of his son and in the days following the child’s passing. With the above considerations in mind, we conclude that the trial court’s refusal to excuse compliance was not within a range of acceptable alternatives given the applicable legal principles and the evidence presented.
Though the Court found for plaintiff here, they did refuse to entertain one of her arguments. At the trial court level, plaintiff had only pointed to the illness and death of the son as grounds for extraordinary cause. On appeal, though, plaintiff attempted to also point to the difficult pregnancy as an additional basis. The Court found any arguments based on the difficult pregnancy to be waived since such arguments were not presented to the trial court.
The Court of Appeals clearly got this one correct. Plaintiff’s counsel was operating under extremely difficult personal conditions. The HCLA statute includes a caveat for extraordinary cause —if the sickness and death of a baby is not extraordinary cause, it is difficult to imagine what would be.
Judge McClarty wrote this opinion, joined by Judge Clement and Judge Armstrong. They deserve credit for doing the right thing.