The Tennessee Supreme Court has reversed a trial court’s dismissal of a health care liability lawsuit against an East Tennessee doctor and hospital, concluding that delivery of pre-suit notice of a health care liability action via FedEx is a proper method of service under Tennessee law.
In 2011, Clayton Arden, before filing a health care liability lawsuit against his wife’s former medical providers, sent notice to the defendants by way of FedEx. A Tennessee statute provides that a person intending to file a health care liability action must first provide health care defendants with at least 60 days’ notice of the forthcoming lawsuit and specifies that a proper method for sending this notice is through the United States Postal Service (USPS). Because Mr. Arden sent pre-suit notice to the defendants through FedEx, the defendants argued that his method of service failed to comply with the statute.
While the health care defendants received timely notice of Mr. Arden’s lawsuit, the trial court dismissed the action for, among other things, failing to use the USPS as the carrier of the notice. The Court of Appeals affirmed the dismissal. Mr. Arden appealed to the Tennessee Supreme Court, which agreed to hear the case.
In a unanimous opinion authored by Chief Justice Sharon G. Lee, the Supreme Court held that the delivery of pre-suit notice to health care defendants may be achieved by substantially complying with the statute and that use of FedEx as the carrier of the notice letters constitutes substantial compliance. The Court noted that unless a health care defendant is prejudiced in some way by a plaintiff’s chosen method of service, substantial compliance will suffice. Because the defendants were not prejudiced by the use of FedEx, the Court found that Mr. Arden substantially complied with the statute.
The Court further concluded that the Tennessee Legislature’s 2009 amendment to the pre-suit notice statute, which removed reference to “nationally recognized carriers” as a specified means of providing service to health care defendants, did not indicate the Legislature’s intent to preclude all other means of providing pre-suit notice other than the USPS. The Court noted that the 2009 amendment was a comprehensive overhaul of the pre-suit notice statute, and that the removal of “nationally recognized carriers” was but a small change, among many others, intended to provide more guidance to attorneys and ensure that pre-suit notice is actually provided to health care defendants. Accordingly, the Court found that the Legislature did not intend to preclude the use of FedEx as a means of delivering pre-suit notice and reversed the dismissal of the lawsuit. The case now returns to the trial court for further proceedings.
Read the opinion in Clayton Arden v. Kenya I. Kozawa, M.D., et al., authored by Chief Justice Lee.