FedEx can deliver HCLA pre-suit notice letters, too, holds Tennessee Supreme Court

By Daniel A. Horwitz

In yet another round of litigation concerning Tennessee’s medical malpractice statute (known as the Health Care Liability Act, or the HCLA), the Tennessee Supreme Court has held that litigants may use commercial carriers like FedEx to deliver pre-suit notice letters.  This holding is significant because the HCLA specifically provides that pre-suit notice letters must be delivered by “the United States postal service.”[1]  Thus, by excusing a plaintiff’s technical non-compliance with the HCLA’s  service requirement, the Court’s decision in Arden v. Kozawa represents a further extension of the “substantial compliance doctrine,” which this author has previously described as “the rule that ‘close is close enough.’”[2]  Furthermore, Arden represents yet another iteration of the Court’s view that “[s]o long as a health care defendant is not prejudiced” by a plaintiff’s procedural errors, “substantial compliance with . . . statutory requirements will suffice.”[3]

The underlying law in Arden was not in dispute.  Before filing a medical malpractice claim, Tennessee law “require[s] medical malpractice plaintiffs to satisfy six pre-suit ‘notice requirements[.]’”[4] Those requirements include, for example, providing a medical malpractice defendant (usually a doctor or a hospital): (1) “[t]he full name and date of birth of the patient whose treatment is at issue;”[5] (2) “[t]he name and address of the attorney sending the notice, if applicable;”[6] and (3) “[a] HIPAA compliant medical authorization permitting the provider receiving the notice to obtain complete medical records from each other provider being sent a notice.”[7]  Of note, the HCLA also states that plaintiffs must demonstrate that pre-suit notice was actually provided to defendants through either “[p]ersonal delivery of the notice”[8] or “[m]ailing of the notice.”[9]

If a plaintiff chooses to mail the notice, rather than hand-delivering it (something that avoids a great deal of angst, as nobody—doctors included—enjoys being personally served with notice of an impending lawsuit), then the HCLA states that proof of mailing: “shall be demonstrated by filing a certificate of mailing from the United States postal service[.]”[10]  In Arden, the plaintiff’s attorney admitted that he had failed to comply with this requirement, having “sent the notice letters via FedEx,” rather than USPS.[11]  Even so, the defendant acknowledged that he had still received the plaintiff’s notice on time, and that he was not harmed in any way by the fact that it was not sent by USPS.  As a result of the plaintiff’s mistake, however, the trial court dismissed the plaintiff’s case—a decision that this author has previously criticized as an example of HCLA complaints “being dismissed due to seemingly hyper-technical errors . . . on grounds that are completely unrelated to the merits of a plaintiff’s claim.”[12]

On appeal, the Tennessee Supreme Court held that the plaintiff’s case should not have been dismissed by the trial court.  According to the Tennessee Supreme Court’s unanimous opinion:

“the manner and proof of service requirements of [the HCLA] are not mandatory, but directory, and can be achieved through substantial compliance.  So long as a health care defendant is not prejudiced by a plaintiff‘s deviations from the statutorily prescribed method of service[,] . . . . delivery of pre-suit notice by private commercial carrier, such as FedEx, . . . constitutes substantial compliance with . . . the pre-suit notice statute.” [13]

Thus, following Arden, HCLA plaintiffs generally may send their pre-suit notice letters via commercial carriers like FedEx and UPS without fear that their clients’ cases will be dismissed—even though the statute technically provides that pre-suit notice must be delivered by the post office.  To avoid a catastrophic situation, however, attorneys should still make every effort to comply with the actual terms of the statute by using USPS to send pre-suit notice letters, just in case a private commercial carrier’s delivery goes awry and results in actual prejudice to a defendant.

Additionally, for the reasons explained in this article, decisions like Arden carry tremendous significance because “the HCLA has been interpreted in such a way that it can be manipulated by defense practitioners to preclude recovery permanently whenever a health care liability plaintiff fails to comply with a pre-suit notice requirement.”[14]  Consequently, although the Tennessee Supreme Court has not yet corrected lower courts’ erroneous interpretation of its opinion in Stevens v. Hickman, its holding in Arden represents yet another step toward vindicating the civil justice system’s “broader understanding that ‘dismissals based on procedural grounds . . . run counter to the judicial system’s general objective of disposing of cases on the merits.’”[15]

Read the Tennessee Supreme Court’s unanimous opinion in Arden v. Kozawa here.

Questions about this article?  Email Daniel Horwitz at

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[1] See Tenn. Code Ann. § 29-26-121(a)(4) (“Compliance with subdivision (a)(3)(B) shall be demonstrated by filing a certificate of mailing from the United States postal service stamped with the date of mailing and an affidavit of the party mailing the notice establishing that the specified notice was timely mailed by certified mail, return receipt requested.”).

[2] Daniel A. Horwitz, The Law of Unintended Consequences:  Avoiding the Health Care Liability Act Booby Trap, Nashville Bar Journal (June 2015), available at

[3] See Arden v. Kozawa, No. E2013-01598-SC-R11-CV (June 30, 2015) (slip op., at 6).

[4] Id. (citing  Tenn. Code Ann. § 29-26-121(a)(1)-(2) (2013)).  See also Stevens ex rel. Stevens v. Hickman Community Health Care Services, Inc. 418 S.W.3d 547, 554 (“Tenn. Code Ann. § 29-26-121(a) establishes six separate requirements . . . .”).

[5] Tenn. Code Ann. § 29-26-121(a)(2)(A).

[6] Tenn. Code Ann. § 29-26-121(a)(2)(C).

[7] Tenn. Code Ann. § 29-26-121(a)(2)(E).

[8] Tenn. Code Ann. § 29-26-121(a)(3)(A).

[9] Tenn. Code Ann. § 29-26-121(a)(3)(B).

[10] Tenn. Code Ann. § 29-26-121(a)(4).

[11] See Arden, supra n. 3 (slip op., at 2).

[12] See Horwitz, supra n. 2.

[13] See Arden, supra n. 3 (slip op., at 6).

[14] See Horwitz, supra n. 2

[15] Id. (citing Bowers v. Gutterguard of Tennessee, Inc., M2002-02877-COA-R3-CV, 2003 WL 22994302, at *5, (Tenn. Ct. App. Dec. 17, 2003).