Day on Torts
This is a healthcare liability case with the central issues being (1) compliance with the notice provisions of the statute; and (2) the statute of limitations. Here is the procedural history in the trial court:
- September 25, 2009 – Decedent presented to the emergency room at Defendant Parkwest Hospital
- October 4, 2009 – Decedent died.
- September 20, 2010 – Plaintiff sent notice of suit to Parkwest. However, the medical authorization form accompanying the notice did not authorize the release of information to Parkwest and the release was expired.
- December 10, 2010 – Plaintiff files first healthcare liability complaint alleging wrongful death. But, the complaint does not have a statement of compliance with T.C.A. 29-26-121 or provide the documentation specified in T.C.A. 29-26-121. Parkwest moves to dismiss.
- August 9, 2011 – The trial court enters an order allowing plaintiff to voluntarily dismiss her case without prejudice.
- May 4, 2012 – Plaintiff files second healthcare liability complaint and Parkwest files a motion to dismiss based on statute of limitations.
- February 13, 2013 – The trial court grants Parkwest’s motion to dismiss and plaintiff appeals.
The primary issue in the Court of Appeals was whether plaintiff’s original suit was timely filed. Since there was no dispute that plaintiff had not filed his original complaint within the general one year statute of limitations for healthcare liability actions, the only issue was whether plaintiff was entitled to avail himself of the 120 extension provided by T.C.A. 29-26-121. Plaintiff conceded he had not complied with the dictates of T.C.A. 29-26-121 since the notice provided did not authorize the release of information to Parkwest and was expired. Moreover, the plaintiff had not demonstrated "extraordinary cause" for his non-compliance. In fact, plaintiff did not even argue extraordinary cause. The only explanation for the failure to comply with the statute was a comment made at the hearing on the original motion to dismiss in which plaintiff’s counsel indicated the failure to comply with the statute was a "clerical error."
The Court of Appeals concluded the original complaint was not filed within the statute of limitations because plaintiff could not avail himself of the 120 day extension provided by T.C.A. 29-26-121. Because the first healthcare liability case was not filed within the statute of limitations, the plaintiff could not use the savings statute, T.C.A. 29-28-105, to file the second healthcare liability complaint. The case was dismissed.
It will take another nine or ten months before the Tennessee Supreme Court has an opportunity to give us clear guidance on multitude of issues raised by the notice and certificate of good faith statutes. In the meantime, it is prudent to study the statue carefully and assume that precise compliance will be required. Crazy, I know, but it will help you sleep at night.
The case is Byrge v. Parkwest Medical Center, No. E2013-00927-COA-R3-CV (Tenn. Ct. App. Jan. 24, 2013).