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Posted by: Tanja Trezise on Apr 30, 2014

Head Comment: CORRECTION: On pages 4, 7, 10 and 12 of the opinion, "HIPAA" has been substituted for "HIPPA".

Court: TN Supreme Court

Attorneys 1:

Henry S. Queener, Nashville, Tennessee, for the appellant, Richard Thurmond.

Attorneys 2:

Suzanne M. Pearson, Dan L. Nolan, and Erik Fuqua, Clarksville, Tennessee, for the appellees, Mid-Cumberland Infectious Disease Consultants, PLC, and Simi Vincent, M.D.

W. Bryan Smith, Memphis, Tennessee, for the amicus curiae, Tennessee Association for Justice.

Judge(s): CLARK

Sixty days prior to filing his complaint, the plaintiff in this health care liability action sent written notice of his potential claim to each of the health care providers that would be named as defendants. Tenn. Code Ann. § 29-26-121(a)(1) (2012 & Supp. 2013). The plaintiff served the pre-suit notice by certified mail, return receipt requested, as permitted by statute. Id. § 29-26-121(a)(3)(B). In his subsequent complaint, the plaintiff alleged that he had complied with the statutory requirement of pre-suit notice, id. § 29-26-121(b), but the plaintiff failed to file with the complaint “an affidavit of the party mailing the [pre-suit] notice establishing that the specified notice was timely mailed by certified mail, return receipt requested,” id. § 29-26-121(a)(4). The defendants moved for dismissal of the lawsuit, citing the plaintiff’s failure to file with the complaint an affidavit of the person who had sent the pre-suit notice by certified mail. The defendants did not allege that the lack of the affidavit resulted in prejudice. Instead, the defendants contended that the pre-suit notice statute demands strict compliance with all its requirements and that dismissal is the mandatory remedy for noncompliance. The trial court “reluctantly” agreed with the defendants and dismissed the complaint. The Court of Appeals affirmed but noted the “harsh results” strict compliance produces in cases, such as this one, where no prejudice is alleged. We granted the plaintiff’s application for permission to appeal. We hold that the statutory requirement of an affidavit of the person who sent pre-suit notice by certified mail may be satisfied by substantial compliance. We also hold that the plaintiff substantially complied with the statute. Accordingly, the judgment of the Court of Appeals affirming the trial court’s dismissal of the complaint is reversed; the complaint is reinstated; and this matter is remanded to the trial court for further proceedings.