Batting .500 is not Good for Med Mal Plaintiff-Eastern Section Rejects Strict Complaisance with Pre-Suit Notice but Affirms Dismissal Based on Statute of Limitations

CLAYTON ARDEN, SURVIVING SPOUSE OF DEBORAH ARDEN, DECEASED v. KENYA I. KOZAWA, M.D. ET AL.
Court: TN Court of Appeals

Attorneys:

Donna Keene Holt and G. Turner Howard, III, Knoxville, Tennessee, for the appellant, Clayton Arden.

Heidi A. Barcus, Knoxville, Tennessee, for the appellees, Kenya I. Kozawa, M.D., and Ken Kozawa, M.D., P.C.

Gary G. Spangler and Carrie S. O’Rear, Knoxville, Tennessee, for the appellee, Sweetwater Hospital Association.

Judge: FRIERSON

The plaintiff, as surviving spouse, appeals the trial court’s dismissal of his health care liability action against the defendant doctor who treated the plaintiff’s wife prior to her death and the hospital wherein the treatment occurred. The trial court granted the defendants’ motions for summary judgment based upon the plaintiff’s failure to strictly comply with the pre-suit notice requirements of Tennessee Code Annotated § 29-26-121 (Supp. 2013). We reverse the trial court’s ruling that the plaintiff had to strictly comply with the provisions of the notice requirement and conclude that the plaintiff substantially complied with said requirement. We affirm, however, the trial court’s ruling that the plaintiff could not rely upon the statutory 120-day extension of the statute of limitations due to his failure to properly serve the notice. We therefore affirm the trial court’s dismissal of the plaintiff’s claims as barred by the statute of limitations.

.PDF Version of Case

Comment on this Article