Risks and dangers inherent in the Notice of Intent

A recent split decision by the Court of Appeals demonstrates the risks inherent in drafting a Notice of Intent.

In Bush v. Heiser, et al., the three judge panel of the Court of Appeals rendered a mixed decision partly upholding and partly reversing a decision of the trial court.  Two of the Judges agreed on the relevant reasoning, while the third disagreed with respect to some of the issues involved.

In short, the case involved the botched repair of an aortic aneurysm [a procedure that is dear to some of our hearts].  The thirty-three year-old patient suffered catastrophic consequences when his surgeon accidentally lacerated the aneurysm while opening the chest, an emergent femoral connection to the heart bypass machine was necessitated, and Bush suffered a stroke leading to the inability to live independently.  Bush's attorneys alleged a number of errors in addition to the accidental laceration, including a failure to prepare for likely complications and a failure to respond properly.

Even though the Notice must be filed approximately six months before suit can be commenced (and thus before any discovery can be conducted), a number of Mr. Bush's theories were summarily dismissed because they were not adequately expressed and explained in the Notice.  The Court did allow him to pursue those claims and theories which were inherent in a thorough reading of the entire document.  The dismissed theories primarily related to alleged negligence by hospital staff in monitoring Bush's condition.

The Court of Appeals majority also held that Bush could continue the case despite filing it before the 182 day "tolling period" ended, in reliance on his right to file after 154 days if the Defendant's answer was inadequate.  The Defendant did not quarrel with the trial court's conclusion that its answer to the notice was not adequate, but it claimed that Bush was required to presume the answer was adequate and could not file suit "early" until after a court ruled its answer deficient. 

The majority noted that since this procedure occurs pre-suit, Bush could not secure such a ruling within the 28 days -- an outcome that would render the statutory language allowing early suit nugatory. The majority also noted that there was a strong public policy argument for allowing the Plaintiff to risk starting suit after 154 days if he chose to take the chance that the Notice of Intent answer would ultimately be ruled inadequate. 

The latter issue is absurdly important because filing suit early prevents the injured person from relying on the suit to extend the statute of limitations giving him or her time to "fix" any alleged procedural error or inadequacy:  if the Defendant had prevailed on this argument, the suit would have been dismissed and Bush would have had no right to "re-start it" after 182 days.  And this would be true, even though the court ultimately ruled that Bush was correct and that the answer to his Notice did not comply with the law.

This was a minor half-victory for fairness over procedural hokey-pokey.  We'll have to watch and see if it survives an appeal to the "Gang of Four" on the Supreme Court.