Pre-Suit Notice Again: The Dangers of Noncompliance

November 27, 2013

Stevens v. Hickman Comm. Health Care Serv., — S.W.3d —, 2013 WL 6158000 (Tenn. 2013)

Tennessee statute, Tenn. Code Ann. § 29–26–121(a)(2)(E), requires a person initiating a medical malpractice suit to send prospective defendants a pre-suit notice authorizing them to obtain complete medical records from each other. The Supreme Court of Tennessee held that a plaintiff cannot obtain an excuse for failing to comply with that statute by asserting extraordinary cause. The Court also set the penalty for noncompliance: dismissal of the suit without prejudice. The Court declined to decide whether this dismissal would operate as a dismissal with prejudice when the statute of limitations runs its course (Cf. Putnam v. Morris, 833 F.2d 903, 904–05 (10th Cir.1987) ( “Dismissal for failure to serve within the time period is without prejudice. It may, however, operate as a dismissal with prejudice when the action will be time-barred.”).