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Arden v. Kozawa

Supreme Court of Tennessee, Knoxville

June 30, 2015

CLAYTON ARDEN
v.
KENYA I. KOZAWA, M.D., ET AL

 Decided May 5, 2015

Page 759

Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Appeals Reversed.

Appeal by Permission from the Court of Appeals, Eastern Section. Circuit Court for Monroe County. No. V12284S. J. Michael Sharp, Judge.

Donna Keene Holt and G. Turner Howard III, Knoxville, TN, for the appellant, Clayton Arden.

Heidi A. Barcus, Hillary B. Jones, and J. David Watkins, Knoxville, TN, for appellees Kenya I. Kozawa, M.D., and Ken Kozawa, M.D., PC.

Stephen Wayne Gibson, Gary George Spangler, and Carrie S. O'Rear, Knoxville, TN, for appellee Sweetwater Hospital Association.

SHARON G. LEE, C.J., delivered the opinion of the Court, in which CORNELIA A. CLARK, GARY R. WADE, JEFFREY S. BIVINS, and HOLLY KIRBY, JJ., joined.

Page 760

The primary issue presented is whether a health care liability case must be dismissed because the plaintiff sent the health care defendants pre-suit notice of the claim via a commercial carrier, FedEx, instead of using certified mail, return receipt requested, through the United States Postal Service. The defendants moved for summary judgment, asserting that the plaintiff failed to comply with the requirements of Tennessee Code Annotated sections 29-26-121(a)(3)(B) and (a)(4) (2012). The defendants did not allege they failed to receive notice or were prejudiced by the plaintiff's method of service. The trial court dismissed the complaint, holding that strict compliance with the manner and proof of service requirements of Tennessee Code Annotated sections 29-26-121(a)(3)(B) and (a)(4) was required. The Court of Appeals affirmed, holding that substantial compliance was sufficient to satisfy the statutory content requirements of the notice, but that the plaintiff's failure to send the notice by certified mail constituted

Page 761

deficient service. We hold that the manner and proof of service prescribed by Tennessee Code Annotated sections 29-26-121(a)(3)(B) and (a)(4) may be achieved through substantial compliance. The defendants received notice and were not prejudiced by the manner of service. Therefore, the use of FedEx to deliver the notice and the filing of proof of service with the complaint constituted substantial compliance with the manner and proof of service requirements of the pre-suit notice statute. The judgment of the Court of Appeals is reversed, and the case is remanded to the trial court for further proceedings.

OPINION

SHARON G. LEE, J.

I.

Beginning on August 24, 2011, Deborah Arden was treated by Dr. Ken Kozawa, a Sweetwater, Tennessee physician, for abdominal complaints. On August 28, 2011, Dr. Kozawa admitted her to Sweetwater Hospital Association for treatment. Mrs. Arden died on September 15, 2011, allegedly due to the negligence of Dr. Kozawa and Sweetwater Hospital Association.[1] On August 1, 2012, Clayton Arden, Mrs. Arden's surviving spouse, sent letters to Dr. Kozawa and the Sweetwater Hospital Association, notifying them that Mr. Arden intended to file a health care liability action against them. Mr. Arden's attorney sent the notice letters via FedEx Priority service with tracking capability. The letters were delivered to Dr. Kozawa and Sweetwater Hospital on August 2, 2012.

On October 19, 2012, Mr. Arden filed a health care liability complaint in Monroe County Circuit Court against Dr. Kozawa, individually, Ken Kozawa, M.D., P.C., and Sweetwater Hospital Association (" the Defendants" ). Mr. Arden relied upon the 120-day extension of the statute of limitations provided by Tennessee Code Annotated section 29-26-121(c).[2] Attached to the complaint was a certificate of good faith, an affidavit of mailing notice, and FedEx receipts indicating delivery of the notice letters on August 2, 2012.

The Defendants moved for summary judgment, asserting that Mr. Arden failed to comply with the pre-suit notice requirements of Tennessee Code Annotated section 29-26-121(a)(3)(B) and (a)(4) by sending the notice letters by FedEx rather than through the U.S. Postal Service, certified mail, ...


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