On June 30, the Tennessee Supreme Court issued a decision that allows a case to proceed and may clear the way for other medical malpractice cases in the pipeline. It is a heartfelt victory that allows one of our clients to have his day in court based on the merits of the case that alleges the negligent medical treatment of his deceased wife. It is a broader victory for those who may have lost legal rights when lawsuits are dismissed on minor technicalities that don’t involve the facts or merits of the case.
Initially, the case had been dismissed because the doctor and hospital received pre-suit notice by FedEx Priority instead of the U.S. Postal Service. This minor technicality became a trump card, but ultimately the Tennessee Supreme Court overturned the decision on June 30, and justice was ‘delivered’ via FedEx. Such procedural matters have been a landmine for attorneys. This ruling will help currently stalled cases and future cases that have been mired in technicalities where there was no harm or prejudice.
Why would the courts seem to prefer the US Postal Service? It goes back to 2008 when the Tennessee Medical Malpractice Act was amended. The “legislative surgery” of seven years ago still has some unintended side effects. When the amendments were put in place, some speculated that lawyers would accept fewer medical malpractice cases at the peril of “claims by the elderly and disabled (who) will never get their day in court,” according to one observer. Overturning this appeal is a step in the healing process that will allow cases to proceed on merit.
The statute in question was to give healthcare providers 60 days notice prior to filing a complaint so that physicians would know claims were being made against them and have an opportunity to prepare, respond, or negotiate. The “Postal Service loophole” actually occurred in 2009 with an amendment that was intended to solve another problem. The 2008 Statute could have been interpreted to mean that “notice was not effective unless the health care provider was personally served or signed for the letter.”
As Senator Doug Overbey explained, this created a real problem for plaintiff’s lawyers since there was anecdotal evidence that doctors were not cooperating with attempts at personal service and there were disputes over who signed the receipt. The 2009 Act was meant to solve the problem such that the proof of mailing the letter or giving it to a receptionist was sufficient. But, that was when original language was omitted that had included the phrase, “delivery by a nationally recognized carrier.” By strict interpretation, the omission created a quagmire or an opportunity, depending on your perspective.
So, why choose FedEx instead? As many bloggers have posted on other legal matters, ‘Nothing good ever comes by registered mail.’ And, avoiding process servers can take on the comic proportions of the Keystone Cops. Some may find FedEx is more reliable.
“Unless strict compliance with a notice content requirement is essential to avoid prejudicing an opposing litigant, substantial compliance . . . will suffice,” according to Chief Justice Sharon G. Lee.
