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State: Tennessee
Subject Matter: Motions to Dismiss because Plaintiff failed to comply with the Pre-suit notice and Certificate of Good Faith requirements
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Good day and I hope this note finds you well.  We’re reporting on the recent Tennessee Court of Appeals decision, Vaughn v. Mountain States Health Alliance d/b/a Johnson City Medical Center, et al.  In this appeal, the COA upheld the trial court’s reluctant dismissal of Plaintiff’s medical malpractice claim as to all defendants (hospital and two physicians) for Plaintiff’s counsel’s failure to strictly comply with the pre-suit notice and certificate of good faith service and filing requirements contained in T.C.A. §§ 29-26-121 and 122.
The Plaintiff sued Defendants, the hospital and two physicians, after his wife was seen in the ER for abdominal pain, nausea, and vomiting in 2010.  She had gastric bypass surgery nearly two years before.  At her 2010 hospital visit, she was diagnosed with bronchitis and chest pain and discharged.  She died two days later while sitting on the toilet after suffering a bowel perforation and being diagnosed with acute bacterial peritonitis after her death
Defendants filed Motions to Dismiss because Plaintiff failed to comply with the Pre-suit notice and Certificate of Good Faith requirements.  The trial court dismissed Plaintiff’s complaint.   
The COA upheld the trial court’s ruling, finding that Plaintiff had failed to comply with all requirements of 29-26-121 (pre-suit notice) and 122 (certificate of good faith):
1)       Plaintiff failed to provide a HIPAA compliant medical authorization because it did not authorize each provider to receive the other providers’ records;
2)       The 1-year statute of limitations was not tolled (120-day tolling period if notice properly given) and thus Plaintiff’s claim was time-barred;
3)       Plaintiff failed to file a certificate of mailing for the pre-suit notice and failed to file an affidavit of pre-suit notice;
4)       Plaintiff’s complaint failed to include the documentation stating that Plaintiff complied with the pre-suit notice provisions; and
5)       Plaintiff’s certificate of good faith was non-compliant in that it failed to state the number of prior violations of pre-suit notice by Plaintiff’s counsel (even if that number was zero).
Interestingly, Circuit Court Judge Thomas Seeley (of Washington and Unicoi counties), ruled that the Plaintiff had failed to comply with the statute but the judge was reluctant in his ruling, stating that he thinks:
"29-26-121 is an abomination, and what our legislature has done to protect, probably the richest segment of our society is just wrong.  What they’ve done in 29-26-121 is just set up traps and pitfalls for litigants and their attorneys. . ."
To his credit, however, he followed the law and dismissed Plaintiff’s Complaint with prejudice.  The Court of Appeals affirmed.  This opinion reinforces that efforts by defense counsel to enforce the statutes as passed by the legislature and not allow "substantial compliance" but rather strict compliance.  We will keep you posted on further developments. Have a wonderful day.

Rebecca Adelman|Attorney
545 South Main Street; Suite 111
Memphis, TN 38103
901 529 9313 ph
901 529 8772 fx

Document Author: TN COA
Firm/Company: Rebecca Adelman Hagwood Adelman Tipton
Document Date: March 1, 2013
Search Tags: TN COA Presuit Notice Dismissal
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