Day on Torts
As Tennessee Courts continue to grapple with what exactly constitutes substantial compliance when sending pre-suit notice of a healthcare liability action, a recent case provides hope that a reasoned approach may ultimately prevail – a HIPAA form sent with the pre-suit notice letter was found to substantially comply with the notice statue despite the failure to Include the date on the form.
In Hamilton v. Abercombie Radiological Consultants, Inc., No. E2014-00433-COA-R3-CV (Tenn. Ct. App. Dec. 15, 2014), plaintiff sent a timely pre-suit notice pursuant to Tenn. Code Ann. § 29-26-121 before filing her health care liability action. Defendant, however, moved to dismiss because plaintiff had signed the HIPAA release form but had left the date blank open. Plaintiff asserted that the date line was intentionally left blank so that defendant could fill it in and the “release form would not become stale.” The trial court, though, agreed with defendant and dismissed the case with prejudice, finding that the form was non-HIPAA compliant.
In its analysis, the Court of Appeals quoted heavily from Thurmond v. Mid-Cumberland Infectious Disease Consultants, PLC, 433 S.W.3d 512 (Tenn. 2014), which expounded upon the Supreme Court’s Stevens decision, the first decision in which the Court held that the content requirements of pre-suit notice could be satisfied with substantial compliance. According to Thurmond, “unless strict compliance with a notice content requirement is essential to avoid prejudicing an opposing litigant, substantial compliance with a content requirement will suffice.” “Non-substantive errors and omissions” and “a plaintiff’s less-than-perfect compliance with subsection 29-26-121(a)(2)(E) will not derail a healthcare liability claim so long as the medical authorization provided is sufficient to enable defendants to obtain and review a plaintiff’s relevant medical records.” Stevens v. Hickman Cmty. Healthcare Serv., Inc., 418 S.W.3d 547 (Tenn. 2013).
Ultimately, the Court of Appeals determined here that plaintiff’s failure to fill in the date blank, though not technically HIPAA compliant, was a “relatively minor omission.” Because the error was minor and there was no evidence that defendants were denied access to medical records because of the missing date or otherwise prejudiced, the Court concluded that the “minor shortcoming in the HIPAA form here is not fatal to the [plaintiff’s]cause of action.” The Hamilton plaintiff substantially complied with pre-suit notice and was able to move forward with its lawsuit.
This was clearly the correct result in this case. Through its decision in Stevens, the Tennessee Supreme Court illustrated that it did not intend for minor, inconsequential errors to completely derail healthcare liability claims. Instead, the Tennessee Supreme Court has indicated that some leeway should be given in this area. While the best practice is to comply with each content requirement of the required pre-suit notice, cases such as this one show that the courts are hopefully trending towards a more reasonable approach when considering dismissing a case for minor errors.