                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT KNOXVILLE
                                  December 14, 2010 Session

 KARAH and RYAN DePUE, ET AL. v. CHARLES D. SCHROEDER, ET AL.

                      Appeal from the Circuit Court for Knox County
                        No. 2-262-09    Harold Wimberly, Judge




                No. E2010-00504-COA-R9-CV - Filed February 15, 2011


JOHN W. MCCLARTY , J., dissenting.

        I cannot agree with the majority opinion, as I do not believe that filing a complaint seven days
early should defeat the cause of action.

         Despite the notice requirements of Tenn. Code Ann. § 29-26-121, the plaintiffs did not give
the requisite notice, “at least 60 days before the filing of their Complaint.” Plaintiffs’ counsel filed
the complaint about 53 days after notice was given. Counsel pleads that her failure to wait the full
60 days before filing the complaint should not be fatal to the claims of her clients. The trial court
excused full compliance with the statutory provision, finding that there was substantial compliance
and no prejudice resulted from the premature filing of the complaint. Thus, the trial court exercised
its discretionary power granted in Tenn. Code Ann. § 29-26-121(b) to waive the deficiency in the
notice provision. The majority disagrees and finds that “this misunderstanding/oversight of
plaintiffs’ counsel would [not] constitute ‘extraordinary cause’ as required by the statute to excuse
compliance with the notice requirements.”

        The majority opinion relied upon our decision in Howell v. Claiborne and Hughes Health
Ctr., No M2009-01683-COA-R3-CV, 2010 WL 2539651 (Tenn. Ct. App. M.S., June 24, 2010),
which was based on Jenkins v. Marvel, 683 F.Supp. 2d 626 (E.D. Tenn. Jan. 14, 2010). The findings
in Jenkins were made after comparing Tennessee’s statute to a similar Texas statute.

        As noted in the Howell decision,

        the Tennessee legislature recognized the need to create an exception to the notice
        requirement so that it would not be an absolute bar to all claims whatsoever for
        failure to comply with the notice requirements. The legislature created such an
        exception by providing that “[t]he court has discretion to excuse compliance with the
        section only for extraordinary cause shown.” Tenn. Code Ann. § 29-26-121(b).
        Accordingly, we review the trial court’s decision not to allow an exception under an
        abuse of discretion standard. A trial court abuses its discretion when it has applied
        an incorrect legal standard or has reached a decision which is against logic or
        reasoning that caused an injustice to the party complaining.


Howell, 2010 WL 2539651, at *16 (emphasis added).

         I find it significant that the Howell court remarked on the importance of the fact that a
Certificate of Good Faith had been filed in that case; one was likewise timely filed in the instant
case. As noted in Jenkins, “one of the other important purposes of the Medical Malpractice Act [is]
to dispose of frivolous suits before any party incur[s] substantial litigation expenses.” The filing of
the Certificate of Good Faith indicating that an expert has reviewed the claims and has certified that
they are taken in good faith ‘satisfies the goal of attempting to ensure that suits proceeding through
litigation have some merit.” 683 F.Supp.2d at 639.

          By so strictly applying Tenn. Code Ann. § 29-26-121 as the majority has done, this court is
requiring the dismissal of an action certified to have been taken in good faith involving claims with
some merit. The law in this state favors resolution of all disputes on the merits. The plaintiffs
complied with the “spirit” of the statute and gave the defendants notice and some amount of time
to respond, try to settle, or otherwise investigate the claims. Viewing this case through a more liberal
filter, I do not find that the trial court abused its discretion because it did not “reach[ ] a decision
which is against logic or [use] reasoning that caused an injustice to the party complaining.” See
Howell, 2010 WL 2539651, at *16.

        Following the lead of Jenkins and Howell, I would look to Texas law for further guidance.
In Burdett v. Methodist Hosp., 484 F.Supp. 1338 (N.D. Tex. 1980), the court found that failure to
give written notice of claim to a health care provider 60 days before filing suit does not bar an
otherwise meritorious claim. The Burdett Court noted that the sanction of dismissal, while
furthering the goal of reducing the frequency of claims, would “restrict a claimant’s rights . . . more
than necessary.”1 484 F.Supp. at 1340. Additionally, in Baber v. Edman, 719 F.2d 122 (5th Cir.


        1
         The Texas legislature had created the Medical Professional Liability Study Commission to make
broad recommendations to the legislature regarding the medical malpractice crisis. The Commission made
the following observation:

        It has been noted that in almost all claims involving a health care provider, the provider is
        unaware of the claim until a suit is actually filed. It was suggested that a certain number of
        the claims filed where no payment is made involve patients who feel, rightly or wrongly,
        that they did not receive proper treatment and patients who, for whatever reason, have
        misunderstandings with their provider.

In those instances and others involving invalid claims, the Commission felt that discussion between the
parties might well bring about an amicable agreement without the necessity for formal action.
                                                                                            (continued...)

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1983), applying Texas law, the appellate court found error in dismissal of the case and stayed the
action to allow a medical malpractice plaintiff to give the statutorily required 60-day notice. The
Baber Court cited Schepps v. Presbyterian Hosp. of Dallas, 652 S.W.2d 934, 936, 938 (Tex. 1983)
for the holding that “[i]f notice is not given sixty days before suit is filed, ‘the cause should be abated
for sixty days.’” Baber, 719 F.2d at 123.

        Accordingly, as I concur with the opinion of the trial judge, I dissent.




                                                            _________________________________
                                                            JOHN W. McCLARTY, JUDGE




        1
         (...continued)
The Burdett Court opined that “[t]his excerpt indicates that the intent of the notice of claim provision is to
encourage settlement of disputes without litigation; it does not reflect a legislative intent to bar an otherwise
meritorious claim for failure to give notice prior to suit.” Burdett, 484 F.Supp. at 1340 (emphasis added).


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