Thurmond v. Mid-Cumberland Infectious Disease Consultants

• Decision Date: 24 April 2014
• Docket Number: No. M2012–02270–SC–R11–CV,M2012–02270–SC–R11–CV
• Citation: 433 S.W.3d 512
• Parties: Richard THURMOND v. MID–CUMBERLAND INFECTIOUS DISEASE CONSULTANTS, PLC et al.
• Court: Tennessee Supreme Court

433 S.W.3d 512

Richard THURMOND

v.MID–CUMBERLAND INFECTIOUS DISEASE CONSULTANTS, PLC et al.

No. M2012–02270–SC–R11–CV

Supreme Court of Tennessee,

at Nashville.

Feb. 5, 2014 Session.¹

April 24, 2014.

Henry S. Queener, Nashville, Tennessee, for the appellant, Richard Thurmond.

Suzanne M. Pearson, Dan L. Nolan, and Erik Fuqua, Clarksville, Tennessee, for the appellees, Mid–Cumberland Infectious Disease Consultants, PLC, and Simi Vincent, M.D.

W. Bryan Smith, Memphis, Tennessee, for the amicus curiae, Tennessee Association for Justice.

OPINION

CORNELIA A. CLARK, J., delivered the opinion of the Court, in which GARY R. WADE, C.J., and JANICE M. HOLDER, WILLIAM C. KOCH, JR., and SHARON G. LEE, JJ., joined.

CORNELIA A. CLARK, J.

Sixty days prior to filing his complaint, the plaintiff in this health care liability action sent written notice of his potential claim to each of the health care providers that would be named as defendants. Tenn.Code Ann. § 29–26–121(a)(1) (2012 & Supp.2013). The plaintiff served the pre-suit notice by certified mail, return receipt requested, as permitted by statute. Id. § 29–26–121(a)(3)(B). In his subsequent complaint, the plaintiff alleged that he had complied with the statutory requirement of pre-suit notice, id. § 29–26–121(b), but the plaintiff failed to file with the complaint “an affidavit of the party mailing the [pre-suit] notice establishing that the specified notice was timely mailed by certified mail, return receipt requested,” id. § 29–26–121(a)(4). The defendants moved for dismissal of the lawsuit, citing the plaintiff's failure to file with the complaint an affidavit of the person who had sent the pre-suit notice by certified mail. The defendants did not allege that the lack of the affidavit resulted in prejudice. Instead, the defendants contended that the pre-suit notice statute demands strict compliance with all its requirements and that dismissal is the mandatory remedy for noncompliance. The trial court “reluctantly” agreed with the defendants and dismissed the complaint. The Court of Appeals affirmed but noted the “harsh results” strict compliance produces in cases, such as this one, where no prejudice is alleged. We granted the plaintiff's application for permission to appeal. We hold that the statutory requirement of an affidavit of the person who sent pre-suit notice by certified mail may be satisfied by substantial compliance. We also hold that the plaintiff substantially complied with the statute. Accordingly, the judgment of the Court of Appeals affirming the trial court's dismissal of the complaint is reversed; the complaint is reinstated; and this matter is remanded to the trial court for further proceedings.

I. Factual and Procedural Background

Prior to and continuing through October 11, 2010, Richard Thurmond (“Plaintiff”) received medical treatment for recurrent urinary tract infections from Dr. Simi Vincent. Dr. Vincent conducted his practice through Mid–Cumberland Infectious Disease Consultants, PLC (collectively “Defendants”). On January 5, 2012, Plaintiff filed a health care liability action ² against Defendants, alleging that Dr. Vincent negligently failed to administer appropriate antibiotics and that Dr. Vincent's negligence caused Plaintiff's condition to worsen and to result in permanent injuries.

Paragraph eighteen of Plaintiff's complaint stated as follows regarding compliance with the pre-suit notice requirement applicable to health care liability actions:

[Plaintiff], through counsel, ha[s] complied with the provisions of T.C.A. § 29–26–121(a) which require[ ] that any person asserting a potential claim for [health care liability] shall give written notice of such potential claim to each health care provider against whom such potential claim is being made at least sixty (60) days before the filing of a Complaint based upon [health care liability]. On XXXXXX, notice was given to [Defendants] by sending it to them in accordance with T.C.A. § 29–26–121(a). A disc containing the documentation showing this compliance is attached as Exhibit A.

Plaintiff's complaint thus failed to state the precise date pre-suit notice was sent, and Plaintiff inadvertently failed to attach Exhibit A to his complaint; however, five days later, on January 17, 2012, Plaintiff filed Exhibit A along with a notice of its filing.³ Exhibit A contained images of the pre-suit notice provided to Defendants, a certificate of mailing stamped with the date Plaintiff's counsel sent Defendants pre-suit notice by certified mail, and return receipt cards containing the signature of the person who accepted service of pre-suit notice for Defendants.

On February 3, 2012, Defendants moved for thirty additional days to respond to Plaintiff's complaint. Defendants supported this request with an affidavit of counsel, which stated that Defendants had not completed their review or investigation of Plaintiff's claim. Plaintiff's counsel did not oppose the extension, and on February 10, 2012, the trial court filed an agreed order granting Defendants until March 14, 2012, to file their answer.

On that date, March 14, 2012, Defendants filed an answer, denying negligence and seeking dismissal of the complaint for failure to state a claim, citing Tennessee Rule of Civil Procedure 12.02(6). As relevant to this appeal, Defendants claimed that Plaintiff's failure to file with the complaint an affidavit “setting out the proof of service of the statutory [pre-suit] notice” amounted to non-compliance with Tennessee Code Annotated section 29–26–121(a)(3) (2012 & Supp.2013),⁴ which mandated dismissal of the action. Defendants pointed out that: (1) the complaint did not include the date pre-suit notice was sent; (2) the disc referred to in the complaint as Exhibit A was not actually filed with the complaint; and (3) the disc filed five days after the complaint did not contain an affidavit of the person who sent pre-suit notice. Defendants asserted that Plaintiff's failure to comply with the pre-suit notice requirement required dismissal and also meant that Plaintiff's suit was not timely filed, as he was not entitled to the 120–day extension of the statute of limitations applicable when pre-suit notice is properly given.

Two days later, Defendants moved for summary judgment, again arguing that Plaintiff's failure to file an affidavit with the complaint required dismissal of the action. In support of this motion, Defendants filed a printed version of the contents of Exhibit A, along with an affidavit of the Clerk of the Circuit Court for Montgomery County attesting that Plaintiff had not filed an affidavit of any kind in the trial court.

About three weeks later, on April 5, 2012, Plaintiff's attorney filed an affidavit “verifying notice to healthcare providers,” in which Plaintiff's counsel stated that he had “mailed by certified mail, return receipt requested, written notice of [P]laintiff's claim” to Defendants on October 4, 2011, and that, as required by statute, the written notice included the names and addresses of all healthcare providers to whom notice was being sent and “HIPAA compliant medical authorizations permitting the potential defendants to obtain complete medical records from each other provider being sent notice.” SeeTenn.Code Ann. § 29–26–121(a)(2).

In response to Defendants' motions to dismiss and summary judgment, Plaintiff argued that the pre-suit notice statute does not require the filing of an affidavit with the complaint. Additionally, on April 24, 2012, Plaintiff filed a motion to amend his complaint, seeking to correct various typographical errors and also to add a new paragraph which would state: “On April 5, 2012, [P]laintiff's attorney filed an affidavit confirming that pre-suit written notice of [P]laintiff's claims was given to each defendant. A copy of the affidavit is attached to his first amended complaint as Exhibit C.” The trial court scheduled a hearing on all motions for July 20, 2012.

The record on appeal does not include a transcript of the July 20 hearing; however, by an order entered August 2, 2012, the trial court “reluctantly” determined that it was required to dismiss Plaintiff's lawsuit. The trial court interpreted Tennessee Code Annotated section 29–26–121 as requiring Plaintiff to file an affidavit of the person who sent pre-suit notice along with his complaint. The trial court also found “no basis” for concluding that extraordinary cause excused “Plaintiff's failure to comply with the statute.” In its August 2, 2012 order, the trial court concluded that the “lawsuit should be dismissed” and directed counsel for Defendants to “prepare an appropriate order.”

Four days later, on August 6, 2012, the trial court granted Plaintiff's motion to amend his complaint, despite defense objections to the motion. Subsequently, on September 13, 2012, the trial court entered its final order, reaffirming its interpretation of the statute as requiring the filing of an affidavit with the complaint and its conclusion that Plaintiff's April 5, 2012 affidavit failed to remedy his initial noncompliance with the statute. The trial court further explained that Plaintiff's noncompliance could only be excused upon a showing of extraordinary cause, which Plaintiff had failed to make. Accordingly, the trial court granted Defendants' motion for summary judgment and dismissed Plaintiff's lawsuit.⁵ The trial court did not address in any manner the effect of its order granting Plaintiff's motion to amend the complaint.

Plaintiff appealed, and the Court of Appeals affirmed the dismissal. Thurmond v. Mid–Cumberland Infectious Disease Consultants, PLC, No. M2012–02270–COA–R3–CV, 2013 WL 1798960, at *2 (Tenn.Ct.App. Apr. 25, 2013). The Court of Appeals agreed with the trial court's interpretation of the pre-suit notice statute as requiring a plaintiff to file an affidavit of the person who sent pre-suit notice along with the complaint and with the trial court's conclusion that, unless...