Extraordinary Cause Found; MedMal Suit May Proceed
The recent Court of Appeals case of Betty Kirby v. Sumner Regional Medical Center offers an example of the rare instance in which “extraordinary cause” will be found to excuse non-compliance with the pre-suit notice requirement in a medical malpractice suit.
On June 24, 2014, Plaintiff Betty Kirby filed a health care liability lawsuit against Sumner Regional Medical Center. The complaint included an attached certificate of good faith.
The Defendant filed a motion to dismiss, arguing the following grounds: that Plaintiff (1) failed to provide pre-suit notice; (2) failed to state in the complaint that pre-suit notice had been provided; and (3) did not provide a certificate of good faith that conformed with the statute because it did not disclose if counsel had previously violated the statute. In its motion, the Defendant included an affidavit attesting that the hospital had not received any written correspondence notifying it of any intent to file suit at least 60 days prior to the filing of the lawsuit. The affidavit asserted that the only document that could possible meet the pre-suit notice requirement was a letter dated January 31, 2014 that had been faxed to the hospital, but that this letter did not include a list of other potential defendants or a HIPAA-compliant authorization.
Plaintiff responded by asserting that dismissal was inappropriate because the hospital was on notice of the potential for litigation several months before it was filed. In her response, Plaintiff enclosed a notice of intent letter and a HIPAA-compliant authorization. In addition, plaintiff asserted that these items had been provided during negotiations leading up to the filing of the suit. Plaintiff also argued that dismissal was inappropriate for the reason that counsel had not disclosed if he had previously violated the statute because he had not ever violated the statute.
Plaintiff also briefed the court on “extraordinary cause,” arguing that she should be excused from these requirements because counsel for the plaintiff had lost his infant son just four days before the complaint was filed. Counsel told the trial court that he was extremely upset, not thinking clearly, and in a “zombie-like state” during his son’s illness from the day he was born on March 6, 2014 until he died on June 20, 2014. Defendant conceded that extraordinary cause existed for any error that occurred following the child’s death and, thus, declined to continue to pursue its argument with respect to any deficiencies with the complaint and the failure to comply with the good faith statute. The defendant, however, continued to assert that the complaint should be dismissed because the defective pre-suit notice sent in January 2014 was sent well before counsel’s son was even born.
The trial court dismissed the lawsuit with prejudice, finding that no extraordinary cause existed to excuse the timely filing of the pre-suit notice. Plaintiff appealed.
Under the health care liability statute, a court does not have discretion to excuse compliance with the statute absent a showing of “extraordinary cause” by the plaintiff. Plaintiff in this case conceded that she did not file the required pre-suit notice. She sought relief under this “extraordinary cause” provision.
The Court of Appeals agreed that there could be no excuse for any non-compliance that occurred before the birth of counsel’s son. That said, the Court of Appeals found that the January 20, 2014 did not constitute a pre-suit notice. The Court excerpted this letter in its entirety, which reads more in the nature of a demand letter.
Thus, the pre-suit notice was not even due to be filed until June 24, 2014, one year from the date of injury and just four days after the death of plaintiff’s counsel’s infant son. For analysis on what constitutes “extraordinary cause,” the Court cited to the case of Myers v. AMISUB (SFH), Inc., 382 S.W.3d 300, 310-11 (Tenn. 2012). The Myers opinion noted that a possible example of “extraordinary cause” might include “a death in that lawyer’s immediately family…in the days before the filing became necessary.” Id.
The Court acknowledged counsel’s difficulty with maintaining his practice during his child’s short life and in the days immediately following his death. Thus, the Court concluded that the trial court’s refusal to excuse compliance was “not within a range of acceptable alternatives.” The trial court was reversed and the case was remanded.
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