Day on Torts

Dismissal affirmed where HCLA pre-suit notice was sent to wrong entity.

Where an HCLA plaintiff sent pre-suit notice addressed to the wrong entity, summary judgment for defendant was affirmed, even though defendant was informed of the pending suit by the incorrect entity and was not prejudiced.

In Breithaupt v. Vanderbilt University Medical Center, No. M2021-00314-COA-R3-CV, 2022 WL 1633552 (Tenn. Ct. App. May 24, 2022), plaintiff suffered antibiotic tendonitis, a traumatic rupture to a tendon in her ankle, and chronic tendonitis after being prescribed medication for a cough that had an adverse reaction with the steroids she had been taking for years. The prescribing doctor worked at defendant VUMC, and plaintiff was not warned about the possible side effects of the medication by the doctor before taking it, despite having previously treated at defendant VUMC for ankle problems. Plaintiff thereafter filed this HCLA suit.

Before filing suit, plaintiff consulted with a friend who was an attorney in Louisiana. When that friend could not find a Tennessee lawyer to take her case before the statute of limitations ran out, he sent her a sample pre-suit notice form. Plaintiff, acting pro se, then sent three pre-suit notices—one addressed to VUMC at an address in Knoxville, one addressed to Vanderbilt University at an address in Nashville, and one addressed to Vanderbilt University d/b/a Vanderbilt University Medical Center at an address in Nashville. The Knoxville notice was returned as not deliverable.

Plaintiff then retained counsel and filed her HCLA complaint. Defendant answered the complaint, then subsequently filed a motion for summary judgment asserting that plaintiff failed to comply with the pre-suit notice requirements of Tenn. Code Ann. § 29-26-121 and that her complaint was therefore untimely. The trial court agreed, ultimately dismissing the complaint with prejudice, and the Court of Appeals affirmed.

Plaintiff first argued that defendant waived its pre-suit notice argument “by failing to include a Rule 12.02 defense it is answer, by failing to file a Rule 12.02 motion to dismiss [and instead filing a motion for summary judgment], and by failing to plead the pre-suit notice defense with specificity in its answer,” but the Court of Appeals explained that this exact issue had been resolved before. The Court noted that the proper way to challenge compliance with § 29-26-121 is through a Rule 12.02 motion to dismiss for failure to state a claim upon which relief can be granted, and that pursuant to the language in the Rule, defendant “could have presented this defense even as late as at the trial on the merits.” (internal citation omitted). Thus, VUMC did not waive its failure to state a claim defense by not including it in its answer. (internal citation omitted). Regarding defendant’s choice to file a motion for summary judgment rather than a Rule 12 motion, the Court noted that defendant included material from outside the pleadings with its motion in the form of an affidavit. The Court explained that “[i]f VUMC would have filed a Rule 12.02 motion…, its motion inevitably would have been converted into a motion for summary judgment” because of the submission of the affidavit, so defendant’s choice to file a motion for summary judgment did not waive its defense.

Plaintiff’s second argument was that either the second or third notice satisfied the requirements of the HCLA, since defendant received actual notice of the suit and was able to prepare accordingly. Looking to previous caselaw interpreting the pre-suit notice requirement, the Court explained that pre-suit notice is “mandatory” and “not subject to satisfaction by substantial compliance,” and that “the proper inquiry is whether plaintiff gave pre-suit notice to the health care provider to be named a defendant, not whether the health care provider knew about the claim based on pre-suit notice of the claim to another potential defendant.” (internal citations omitted). Based on this legal standard, the Court of Appeals agreed that plaintiff did not comply with the HCLA pre-suit notice requirements here.

The second notice was addressed to Vanderbilt University instead of VUMC, and while it was mailed to the address of VUMC’s main adult hospital, the requirements of § 29-26-121(a)(1) do not “authorize pre-suit notice to be sent to the facility where the plaintiff received treatment,” but instead require that it be sent “to both the address for the agent for service of process and the health care provider’s business address, if different from that of the agent for service of process.” (internal citations omitted).

Regarding the second notice, defendant admitted that it eventually received this notice when it was forwarded from Vanderbilt University to VUMC’s Department of Risk and Insurance Management. Defendant further admitted that it began preparing for the case based on this notice and reviewed plaintiff’s medical records. Despite this actual notice, the Court of Appeals agreed with defendant that the HCLA requirements were not satisfied. The Court explained:

To satisfy the pre-suit notice requirement, the plaintiff must communicate in writing directed to the potential defendant about the claim. In our case, the second and third pre-suit notices were directed to ‘Vanderbilt University.’ [Plaintiff] asserts that actual notice had been provided and completed by these two pre-suit notices. However, VUMC’s actual or constructive knowledge is not our concern. …Implicit in the statutory language is that a plaintiff must direct the notice to the health care provider and not to some other person or entity. Notice to the wrong person or entity is ineffective. …[B]ecause the second and third pre-suit notices were wrongly addressed and/or directed to the wrong entity and strict compliance with the pre-suit notice statute is required, we conclude that [plaintiff] failed to provide pre-suit notice to VUMC in compliance with Tennessee Code Annotated section 29-26-121(a)(1).

(internal citations and quotations omitted).

Finally, plaintiff alleged that his noncompliance should be excused for extraordinary cause. While plaintiff asserted that he relied on advice from an out-of-state attorney and was acting pro se when the notices were sent, the Court ruled that this did not constitute extraordinary cause. Further, the fact that defendant received actual notice of the pending suit did not rise to the level of extraordinary cause to excuse statutory compliance. Accordingly, plaintiff did not comply with the HCLA pre-suit notice requirements, and dismissal of the case was affirmed.

This case reaffirmed what seems to be settled law in HCLA cases—that pre-suit notice sent to the wrong defendant will not satisfy the requirements of the HCLA.

This opinion was released 3.5 months after oral arguments in this case.

Note:  Chapter 45, Sections 3, 9 and 12 of Day on Torts: Leading Cases in Tennessee Tort Law has been updated to include this decision.

Day on Torts: Leading Cases in Tennessee Tort Law contains summaries of leading cases on over 500 topics and citations to more than 1500 additional cases.  The 500,000+ word book  (and two others, Tennessee Law of Civil Trial and Compendium of Tennessee Tort Reform Cases) is available by subscription at www.birddoglaw.com and is continually updated as new decisions and statutes impact Tennessee law.  Click on the link to see the book’s Table of Contents.

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