Day on Torts
In Grizzle v. Parkwest Medical Center, No. E2016-01068-COA-R3-CV (Tenn. Ct. App. July 25, 2017), the Tennessee Court of Appeals reversed dismissal of a health care liability (medical malpractice) case based on plaintiff’s failure to provide a HIPAA compliant medical authorization.
Plaintiff had hip replacement surgery at defendant hospital, and when she woke up she began to have severe chest pains. An x-ray showed that she had broken ribs, yet the hospital “provided no explanation as to how the injury to her ribs had occurred.”
Plaintiff filed an HCLA action against the hospital on January 25, 2016. She stated in her complaint that she had complied with the statutory pre-suit notice requirements, but she “did not provide the requisite documentation with her complaint establishing proof of pre-suit notice.” Defendant filed a motion to dismiss based on plaintiff’s failure to file the required documentation with her complaint and her failure to provide defendant with a HIPAA-compliant medical authorization. After the motion was filed, on March 14, 2016, plaintiff filed a “notice of filing” and attached “copies of the pre-suit notice letter and allegedly HIPAA-compliant authorization sent to [defendant].”
After a hearing, the trial court held that plaintiff had substantially complied with the filing requirements, but that her medical authorization contained several blanks and was not HIPAA compliant, and thus granted defendant’s motion to dismiss. The Court of Appeals reversed this dismissal.
On appeal, the Court first analyzed whether dismissal was appropriate based on plaintiff’s allegedly deficient HIPAA authorization. When the trial court decided this case, it relied heavily on a Court of Appeals decision wherein the Court had rejected a plaintiff’s argument that a HIPAA-compliant authorization was not necessary “when the defendant was the sole medical provider the notice.” Since the trial court’s decision in this case, however, that holding was overturned by the Tennessee Supreme Court. In Bray v. Khuri, ___ S.W.3d ___, No. W2015-00397-SC-R11-CV (Tenn. July 5, 2017), the Supreme Court held that “a plaintiff need not provide a HIPAA-compliant authorization when a single health care provider is given pre-suit notice of a health care liability action.”
In this case, “the provision of pre-suit notice was required for only a single defendant.” Applying the Bray holding, the Court held that the HIPAA-compliant authorization requirement was “inapplicable to [plaintiff’s] pre-suit notice in this matter because Parkwest was the sole defendant.” Dismissal on this basis was thus reversed.
Second, the Court affirmed the finding that plaintiff had substantially complied with the HCLA filing requirements. Tenn. Code Ann. § 29-26-121 states that a plaintiff should file certain documents with an HCLA complaint, including a certificate of mailing, an affidavit from the person who mailed the pre-suit notice, and a copy of the pre-suit notice. When plaintiff in this case filed suit, she failed to attach these documents, though she did state in her complaint that she had provided proper pre-suit notice. Plaintiff supplemented her complaint with the filing of her pre-suit notice less than two months after her complaint had been filed, but “the requisite affidavit of the party mailing the notice was never filed.
“The content and affidavit requirements” at issue in this case “can be achieved through substantial compliance.” (internal citation and quotations omitted). In determining whether plaintiff had substantially complied with the HCLA, the Court quoted extensively from Thurmond v. Mid-Cumberland Infectious Disease Consultants, PLC, 433 S.W.3d 512 (Tenn. 2012), a case in which the Supreme Court found that a plaintiff had substantially complied with the filing requirements despite not initially attaching all required documents to the complaint. In Thurmond, the Court noted:
While the statute states that the requirement of timely service of pre-suit notice will be deemed satisfied if a plaintiff files an affidavit and other documents with the complaint, conspicuously absent from the statute is any language indicating that the failure to file the affidavit, and other specific documents, with the complaint renders timely service of pre-suit notice ineffective. …As this case clearly illustrates, where pre-suit notice was timely serviced, insisting upon strict compliance with the statute requiring the filing of an affidavit ‘with the complaint,’…is not ‘essential to avoid prejudicing an opposing litigant.’
(internal citations omitted).
Here, the Court pointed out that plaintiff did eventually file a copy of her pre-suit notice letter and a “signed, certified mail receipt,” and that she “explicitly stated in her complaint that pre-suit notice had been provided.” The Court reasoned:
[Defendant] did not dispute receipt of pre-suit notice and did not claim that the lack of the affidavit prejudiced its position in any way. As our Supreme Court has explained, the affidavit would have merely confirmed the specific information [plaintiff] had already provided.
(internal citation omitted). Accordingly, the Court affirmed the holding that plaintiff had substantially complied with the HCLA.
The Court clearly decided this case correctly. While plaintiff did not file the statutorily required affidavit, defendant was not prejudiced by this failure. Allowing this case to move forward and be decided on the merits was the right result.