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Medical Malpractice Notice Requirement

August 22, 2013

Medical Malpractice Notice Requirement

Case:Richard Thurmond v. Mid-Cumberland Infectious Disease Consultants, PLC et al.

Facts: The Plaintiff in a medical malpractice case filed the required sixty-day notice but failed to include a copy with the complaint, as required by T.C.A. 29-26-121. The complaint erroneously indicated that a “disc containing the documentation” was attached. Plaintiff’s attorney filed the affidavit and attempted to amend his complaint thereafter. The trial court “reluctantly” dismissed the complaint for failing to comply with the statute.

Appellate Decision: The intermediate court affirmed dismissal of the case, recognizing the “harsh result” and noting that an earlier panel had found that the medical malpractice notice statute does not allow a deficiency to be cured with an amended complaint.
Issue: Can failure to attach a copy of the sixty-day med mal notice to the complaint be cured by a later filing or an amended complaint?

Review Granted: August 13, 2013.

Prediction: Ben thinks the Court will reverse. As the Court observed last year in Myers v. AMISUB, 382 S.W.3d 300 (Tenn. 2012), the “essence” of the statutes is to give notice that a claim will be filed and that there are good faith grounds thereof. Where, as here, the defendant receives such notice and has suffered no prejudice, a trial court should have discretion to allow a plaintiff to amend the complaint to prove notice.