Marvin D. Kinsey v. Jacob P. Schwarz
M2016-02028-COA-R3-CV
| Tenn. Ct. App. | Aug 18, 2017Background
- Plaintiff Marvin Kinsey, an incarcerated pro se litigant, sued two physicians (Dr. Schwarz and Dr. Keith) and TriStar Centennial Medical Center for alleged malpractice arising from March 2015 back fusion surgery.
- Kinsey mailed pre-suit notices in February 2016; the mailings were returned as undeliverable/refused and he did not mail to addresses listed on the TN Dept. of Health or the providers’ business addresses.
- Kinsey filed suit on March 28, 2016 (48 days after his mail date), and did not attach a certificate of good faith to his complaint. Service on defendants occurred later (Dr. Schwarz served June 10; CMC July 26; Dr. Keith allegedly waived).
- Defendants moved to dismiss under Tenn. R. Civ. P. 12.02(6) for failure to comply with Tenn. Code Ann. §§ 29-26-121 (pre-suit notice) and 29-26-122 (certificate of good faith) and for failure to file the statutory proof of mailing.
- Trial court granted dismissal as to all defendants and made the earlier dismissal of Dr. Schwarz final, concluding the statutory defects were not cured and Kinsey had not shown extraordinary cause.
- On appeal the Court of Appeals affirmed, holding Kinsey failed to comply with mandatory pre-suit notice and certificate-of-good-faith requirements and did not demonstrate extraordinary cause to excuse compliance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether pre-suit notice requirement under Tenn. Code Ann. §29-26-121 was met | Kinsey argued he mailed notice to providers where they treated him and relied on substantial compliance (citing Arden) | Defendants argued notices were not sent to required DoH/business addresses, were returned undelivered, and complaint was filed before 60 days elapsed | Court held Kinsey did not comply; notices were undelivered, 48 days elapsed only, and he failed to show extraordinary cause — dismissal affirmed |
| Whether certificate of good faith under Tenn. Code Ann. §29-26-122 was required or excused | Kinsey argued incarceration prevented him from obtaining expert review and thus urged waiver/extraordinary-cause | Defendants argued statute is mandatory and Kinsey provided no extraordinary cause or proof that records were withheld to prevent filing | Court held the certificate requirement is mandatory; Kinsey failed to show extraordinary cause or timely record-production issues — dismissal affirmed |
| Whether statutory proof of mailing (certificate of mailing/stamped USPS form) was provided per §29-26-121(a)(4) | Kinsey submitted a personal affidavit of mailing and certified-mail receipts but no USPS-stamped certificate of mailing | Defendants argued plaintiff failed to file the statutorily required USPS certificate and return-receipt compliance | Court held plaintiff did not comply with the specific proof requirement and dismissal was proper |
| Whether dismissal as to Dr. Schwarz should be made final or was curable | Kinsey argued defects could be cured or waived | Dr. Schwarz argued defects could not be cured and sought final judgment | Court concluded defects could not be cured within statutory scheme and made dismissal final |
Key Cases Cited
- Myers v. AMISUB (SFH), Inc., 382 S.W.3d 300 (Tenn. 2012) (pre-suit notice and certificate of good faith are mandatory; exceptions require extraordinary cause)
- Arden v. Kozawa, 466 S.W.3d 758 (Tenn. 2015) (manner/proof of pre-suit notice may be treated as directory; substantial compliance assessed by deviation and prejudice to defendant)
- Thurmond v. Mid-Cumberland Infectious Disease Consultants, PLC, 433 S.W.3d 512 (Tenn. 2014) (affidavit of mailing functions as confirmation that pre-suit notice was timely served)
- Foster v. Chiles, 467 S.W.3d 911 (Tenn. 2015) (standard of review for Rule 12.02(6) dismissal is de novo)
- Stevens ex rel. Stevens v. Hickman Cmty. Health Care Servs., 418 S.W.3d 547 (Tenn. 2013) (purpose of pre-suit notice: allow investigation and settlement opportunity)