Recently, the Tennessee Court of Appeals provided more leeway for Plaintiff’s counsel when it comes to the 60-day pre-suit notice and the certificate of good faith requirements. In Hinkle v. Kindred Hosp., No. M2010-02499-COA-R3-CV (Tenn. Ct. App. Aug. 31, 2012), the widow of a man who suffered a devastating injury while undergoing a medical procedure involving the insertion of a Bowel Movement System (BMS) in the defendant hospital filed suit against the hospital and the doctor who ordered the procedure. She, however, failed to strictly comply with the Medical Malpractice Act in two key respects. Regardless, the Court of Appeals allowed the case to proceed.
Pursuant to the Act, 60 days prior to filing a medical malpractice suit, a plaintiff “shall give written notice of the potential claim to each health care provider that will be a named defendant.” Included with the notice, the plaintiff must provide certain information such as the full name and date of birth of the patient and a HIPAA compliant medical authorization. In Hinkle, the plaintiff sent notice letters to the doctor and the hospital prior to the closure of the 60-day window but failed to provide the requisite information, thus constituting a lack of technical compliance with the Act. Furthermore, the letter was sent to the hospital and not the registered agent for service of process as mandated by the Act. And the doctor received a copy of the notice letter from the hospital via fax.
Ultimately, the court determined that the plaintiff’s notice did constitute proper notice because the defendants received the letter, and there were no ambiguities as to the patient at issue. Both parties received actual notice and took affirmative steps to respond to the claim.
In addition to plaintiff’s failure to comply with the technical requirements of the notice provisions, plaintiff also failed to transmit a “Certificate of Good Faith” demonstrating that the plaintiff had consulted with an expert, who affirmed the existence of a good faith basis to file the action. Instead, plaintiff sent to the defendants an affidavit from a Tennessee medical doctor that included the majority of the information that was to be contained in the “Certificate of Good Faith.” Defendants contended that the affidavit was faulty because it did not specifically state that the doctor based his opinion on the information available from the patient’s medical records.
Reasoning that the defendants’ argument “elevates form over substance and conflates means with ends,” the Court rejected their position. The Court held that the affidavit satisfied the requirements of the Act despite technical deviation.
It is too early to tell whether this opinion will open the door to further erosion of the requirements set out by the legislature. Clearly, the plaintiffs’ bar has been given one more bite at the apple. Only time will tell if they will be given two.
