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Pre-Suit Notice in Health Care Liability Action

October 30, 2014

Pre-Suit Notice in Health Care Liability Action

CaseClayton Arden, Surviving Spouse v. Kenya L. Kozawa, M. D.

Issues: Was pre-suit notice sufficient despite failing to list addresses of plaintiff and defendant? Was service of notice via Federal Express (rather than USPS) sufficient?

Facts:  Plaintiff sought to file suit against Defendants Doctor and Hospital. The pre-suit notice was deficient because it failed to include the address of Hospital and Plaintiff, and was delivered via Federal Express. Plaintiff filed suit more than a year after the injury, relying on the 120-day statutory extension. The trial court dismissed the suit upon finding Plaintiff failed to strictly comply with the notice requirements.

Appellate Decision: The intermediate court reversed in part but affirmed the dismissal. With respect to the omitted addresses, the court held that only substantial (rather than strict) compliance was necessary, and that there was no prejudice since both defendants knew Hospital’s address and could easily have learned Plaintiff’s address from his attorney. However, the court also held that the 120-day extension was unavailable for lack of proper notice because the notices were sent via Federal Express, rather than USPS as the statute expressly requires.

Review Granted:  October 21, 2014.

Prediction:  Ben thinks the Supreme Court will reverse the dismissal of the suit. Just as a “substantial compliance” test applies to the components of the pre-suit notice with an inquiry as to whether the defendants were prejudiced, the same test should apply to service of the notice as well. Here, where there is no dispute that the defendants actually received the notice, the “essence” of the pre-suit notice requirement was satisfied. A contrary ruling would lead to confusion as to which pre-suit notice requirements must be followed substantially, and which strictly. Of course, as the intermediate court noted in a footnote, “a plaintiff who does not strictly comply with the statutory pre-suit notice requirements will bear the risk of being deemed to have not substantially complied.”