Under the new statute, prior to filing a lawsuit one must give certain written notice to the defendant of a potential claim, and then provide proof of such notice with the lawsuit. Tenn. Code Ann. § 29-26-121.
Medical Malpractice Case Thrown Out on Technicality
In the case of Shockley v. Mental Health Cooperative, the family’s attorney served the notice upon “Mental Health Cooperative Foundation, Inc.” through its registered agent. It was later discovered that the actual entity who ran the crisis center was “Mental Health Cooperative, Inc.,” and that the “Foundation” corporation was a distinct entity which did fundraising for the main corporation. The two entities shared the same registered agent and business address, so the notice would have gone to the same place either way.
Even though the correct corporate entity got actual notice of the potential suit in the appropriate manner, the Tennessee Court of Appeals determined that the case must be thrown out because the correct corporate entity was not actually named in the notice. This was based on a prior decision of the Tennessee Supreme Court which held that the notice requirement is mandatory (rather than discretionary), so strict compliance (rather than substantial compliance) is required. Myers v. AMISUB (SFH), Inc., 382 S.W.3d 300 (Tenn. 2012).
The Court of Appeals in Shockley concluded that the pre-suit notice is not a “pleading” which may be amended under Rule 15.03, which normally allows plaintiffs to remedy such technical defects. This is because, per a prior unpublished decision, pre-suit notice precedes the lawsuit and is not part of the case itself.
Thus, the court concluded, the family of the mental health patient could not fix the problem, and the entire suit must be dismissed, all because the family (via its attorney) had technically noticed the wrong corporate entity (even though the right one received actual notice).
Of course, we will never know whether the crisis center was actually legally responsible for the death of the patient. But that is precisely the problem with cases being tossed out on technicalities before any evidence is heard. It can be very difficult to determine which corporate entity is the “right one” to name in a lawsuit, so unfortunately, this is a problem we may see repeatedly in the future.
How This New Medical Malpractice Law May Affect Your Case
Regrettably, this decision will have a chilling effect on plaintiff’s attorneys, who are now subject to legal malpractice claims for making good-faith mistakes as to the proper party, which have previously been curable through Rule 15.03. Since the purpose of Rule 15.03 is to allow a remedy for this very sort of defect, it is regrettable that Tennessee courts are currently interpreting it not to apply in this situation.
Attorneys should be weary of this when filing pre-suit notices, and everyone should talk to their state representatives about changing the law to let potential victims of healthcare negligence have their day in court.
Image credit: Heather Ingram