pre-suit notice requirement in Tennessee

2017As our Supreme Court has further explained: Myers and Stevens thus instruct that: (1) providing potential defendants pre-suit notice of health care liability claims is the “essence” and “fundamental” purpose of the pre-suit notice requirement, Myers, 382 S.W.3d at 309 ; and (2) unless strict compliance with a notice content requirement “is essential to avoid prejudicing an opposing litigant,” substantial compliance with a content requirement will suffice, Stevens, 418 S.W.3d at 555 .

2017The Myers Court noted that both the pre-suit notice requirement and the certificate of good faith requirement are “precisely stated” and “provide clear guidance and detailed instruction for meeting those requirements.” Id. at 310 .

2025Unlike the pre-suit notice requirement of Section 121(a)(1), the content requirements of Section 121(a)(2) “are not mandatory, but directory, and can be achieved through substantial compliance.” Arden v. Kozawa, 466 S.W.3d 758, 763 (Tenn. 2015) (citing Thurmond, 433 S.W.3d at 520 ; Stevens, 418 S.W.3d at 555 ).

2016Unlike the pre-suit notice requirement of Tenn. Code Ann. § 29-26 - 121(a)(1), the content requirements of Tenn. Code Ann. § 29-26-121 (a)(2) “are not mandatory, but directory, and can be achieved through substantial compliance.” Arden, 466 S.W.3d at 763 (citing Thurmond, 433 S.W.3d at 520 ; Stevens, 418 S.W.3d at 555 ).

2017See Tenn. Code Ann. § 29-26-121 (a)(1) (requiring any person with a potential health care liability claim to provide pre-suit notice of the claim to all health care providers who could be named as defendants); id. § 29-26-122(a) (requiring the plaintiff to file a certificate of good faith with the complaint when expert testimony is required); see also id. § 29-26-122(c) (“The failure of a plaintiff to file a certificate of good faith . . . shall, upon motion, make the action subject to dismissal with prejudice.”); Foster v. Chiles, 467 S.W.3d 911, 916 (Tenn. 2015) (holding that “dismissal with

2016Tenn. Code Ann. § 29-26-122 (c) (providing that failure to comply with the certificate of good faith requirement will make the action subject to dismissal with prejudice); Foster v. Chiles , 467 S.W.3d 911 , 916 (Tenn. 2015) (holding that dismissal without prejudice is the appropriate sanction for noncompliance with the pre-suit notice requirement). *60 On appeal, Ms. Lacy does not dispute her noncompliance with the THCLA's procedural requirements.

2022“To satisfy the pre-suit notice requirement, ‘the plaintiff must communicate in writing directed to the potential defendant about the claim.’” Id. (citing Runions, 549 S.W.3d at 87 (emphasis added)).

2022Dist., 549 S.W.3d 77, 86 (Tenn. 2018) (“To satisfy the pre-suit notice requirement, the claimant must within the statute of limitations serve the notice by personal delivery or certified mail.”) (footnote omitted).

2019Zink v. Rural/Metro of Tenn., L.P., 531 S.W.3d 698, 706 (Tenn. Ct. App. 2017); see also Ellithorpe v. Weismark, 479 S.W.3d 818, 829 (Tenn. 2015) (noting the continued 3 Although the majority also concludes that this issue was waived because no argument was “raised or argued by Plaintiff . . . to this Court,” I must respectfully disagree.

2018Ellithorpe v. Weismark, 479 S.W.3d 818, 829 (Tenn. 2015) (quoting Foster v. Chiles, 467 S.W.3d 911, 916 (Tenn. 2015)).

2026The defendant must describe how the plaintiff was noncompliant with the pre-suit notice requirement and also “the extent and significance of the plaintiff’s errors and omissions and whether the defendant was prejudiced by the plaintiff’s noncompliance.” Id. (quoting Stevens, 418 S.W.3d at 556 ).

2021Our Supreme Court in Martin v. Rolling Hills Hosp., LLC, 600 S.W.3d 322 , 334-35 (Tenn. 2020), recently confirmed that the proper avenue to challenge a plaintiff’s compliance with the pre-suit notice requirement in Section 121 is by a Tennessee Rule of Civil Procedure 12.02(6) motion to dismiss.

2020Gov’t of Nashville & Davidson Cnty., 686 S.W.2d 87, 92 (Tenn. Ct. App. 1984)). -8- Although the Act’s pre-suit notice requirement, Tennessee Code Annotated section 29-26-121, applies to all health care liability claims under the Act, the same is not true for whether expert testimony is required under Tennessee Code Annotated section 29-26-122.8 “[A]dditional analysis is needed to determine whether expert proof is necessary.” Osunde, 505 S.W.3d at 887 (citing Smith v. Testerman, No. E2014-00956- COA-R9-CV, 2015 WL 1118009 , at *5 (Tenn. Ct. App. Mar. 10, 2015), perm. app. denied (Tenn. June 15,

2019As this Court noted in Osunde, “[n]ot only is a health care liability action subject to the pre-suit notice requirement contained in Tennessee Code annotated section 29-26-121, but, potentially, it is subject to the certificate of good faith requirement in section 29-26-122, as well as the expert proof requirement in section 29-26-115.” Osunde, 505 S.W.3d at 885 .

2025Unlike the pre-suit notice requirement of Section 121(a)(1), the content requirements of Section 121(a)(2) “are not mandatory, but directory, and can be achieved through substantial compliance.” Arden v. Kozawa, 466 S.W.3d 758, 763 (Tenn. 2015) (citing Thurmond, 433 S.W.3d at 520 ; Stevens, 418 S.W.3d at 555 ).

2017Mr. Kinsey relies on the case Arden v. Kozawa, 466 S.W.3d 758 (Tenn. 2015), to argue he substantially complied with the pre-suit notice requirement by mailing the notice to the address where the defendants provided him with services.

2020Id. at *7 . 8 Ms. Jackson’s compliance with the Act’s pre-suit notice requirement is not at issue. -9- Zink v. Rural/Metro of Tennessee, L.P., 531 S.W.3d 698 (Tenn. Ct. App. 2017) is similar.

2019Zink v. Rural/Metro of Tenn., L.P., 531 S.W.3d 698, 706 (Tenn. Ct. App. 2017); see also Ellithorpe v. Weismark, 479 S.W.3d 818, 829 (Tenn. 2015) (noting the continued 3 Although the majority also concludes that this issue was waived because no argument was “raised or argued by Plaintiff . . . to this Court,” I must respectfully disagree.

2025Indeed, in both opinions, the Tennessee Supreme Court stressed that its opinion was limited to the “unique circumstances” of the facts of the case and explained that the Court’s holding was a “narrow one.” Ultsch, 674 S.W.3d at 861; Gardner, 674 S.W.3d at 842-43.

2025Indeed, in both opinions, the Tennessee Supreme Court stressed that its opinion was limited to the “unique circumstances” of the facts of the case and explained that the Court’s holding was a “narrow one.” Ultsch, 674 S.W.3d at 861; Gardner, 674 S.W.3d at 842-43.

2025The plaintiff in Taylor sued both the principal and the agent but did not comply with the Act’s pre-suit notice requirement as to the agent.” Gardner, 674 S.W.3d at 844.3 As correctly noted by the trial court, it is clear that the Gardner and Ultsch Courts did not intend to interpret the THCLA to abrogate the common-law operation-of-law exception in situations such as this where the plaintiff sues both the agent and the principal (based only on vicarious liability for the actions of its agent), and the claims against the agent are barred.

2022See, e.g., Est. of Barnwell v. Grigsby, 801 F. App’x 354 , 367 n.11 (6th Cir. 2020) (finding no extraordinary cause where the plaintiff merely asserted that the defendants “made it difficult to get records or interview witnesses” - 16 - but never explained “how the availability of such records affected her ability to comply with the pre-suit notice requirement and good-faith certificate requirements of the THCLA”).

2020Gov’t of Nashville & Davidson Cnty., 686 S.W.2d 87, 92 (Tenn. Ct. App. 1984)). -8- Although the Act’s pre-suit notice requirement, Tennessee Code Annotated section 29-26-121, applies to all health care liability claims under the Act, the same is not true for whether expert testimony is required under Tennessee Code Annotated section 29-26-122.8 “[A]dditional analysis is needed to determine whether expert proof is necessary.” Osunde, 505 S.W.3d at 887 (citing Smith v. Testerman, No. E2014-00956- COA-R9-CV, 2015 WL 1118009 , at *5 (Tenn. Ct. App. Mar. 10, 2015), perm. app. denied (Tenn. June 15,

2015Although we need not look to the broader statutory scheme where the plain language of the THCLA defines Mrs. Igou‘s claim as a health care liability action, Thurmond v. Mid-Cumberland Infectious Disease Consultants, PLC, 433 S.W.3d 512, 517 (Tenn. 2014), we cannot consider the language of a statute in a ―‗vacuum‘‖ and must refer to its entirety to ensure ―‗that its component parts are consistent and reasonable.‘‖ State v. Aguilar, 437 S.W.3d 889, 905 (Tenn. Crim.

2015Inasmuch as Mr. Kaddoura failed to comply with the pre-suit notice requirement and was, in any case, subject to the TMMA as analyzed in Cunningham, our analysis is not affected by the enactment of Tennessee Code Annotated § 29-26-101(a). 5 Supreme Court‟s decision in Estate of French v. Stratford House for the proposition that “when the conduct alleged is not substantially related to the rendition of medical treatment by a medical professional, the medical malpractice statute does not apply.” See 333 S.W.3d 546, 555 (Tenn. 2011) (quoting Gunter, 121 S.W.3d at 641 ).

2014Group, Inc. 398 S.W.3d 163, 170-71 (Tenn. Ct. App. 2012) (upholding the trial court’s finding that no extraordinary cause existed to excuse the plaintiffs’ failure to comply with the pre-suit notice requirement of Tenn. Code Ann. § 29-26-121 and noting that “[w]hen reviewing a trial court’s discretionary decision, we will uphold the ruling ‘so long as reasonable minds can disagree as to propriety of the decision made.’” (quoting Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001)).

2014Group, Inc. 398 S.W.3d 163, 170-71 (Tenn. Ct. App. 2012) (upholding the trial court’s finding that no extraordinary cause existed to excuse the plaintiffs’ failure to comply with the pre-suit notice requirement of Tenn. Code Ann. § 29-26-121 and noting that “[w]hen reviewing a trial court’s discretionary decision, we will uphold the ruling ‘so long as reasonable minds can disagree as to propriety of the decision made.’” (quoting Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001)).

2013Co., 71 S.W.3d 691, 694-95 (Tenn. 2002). -2- On September 13, 2011, Plaintiff filed a healthcare liability suit against Hickman Community Health Care Services, Inc., doing business as Hickman Community Hospital; Elite Emergency Services, LLC; and Halford Whitaker, M.D.2 (“Defendants”) in the Circuit Court for Hickman County.3 In her complaint, Plaintiff averred that she had complied with the pre-suit notice requirement of Tenn. Code Ann. § 29-26-121 (a).