Day on Torts
An HCLA plaintiff who does not comply with the pre-suit notice requirements in the statute is not entitled to the 120-day extension of the statute of limitations.
In Brookins v. Tabor, No. W2017-00576-COA-R3-CV (Tenn. Ct. App. March 8, 2015), plaintiff husband originally filed an HCLA suit against several defendants, including doctors Tabor, Lamothe, and Fleenor. This first suit was filed on January 29, 2015, and was nonsuited on April 16, 2015, in order to comply with the pre-suit notice requirements found in the HCLA.
On July 6, 2015, plaintiff husband re-filed the suit based on the same negligence against the same defendants. In this second suit, plaintiff wife also asserted a loss of consortium claim. Defendant doctors moved to dismiss the claims, alleging that they were time-barred because plaintiffs had failed to meet the pre-suit notice requirements and were thus unable to rely on the 120-day extension of the one-year statute of limitations. The trial court agreed, dismissing all claims against defendant doctors, and the Court of Appeals affirmed dismissal for various reasons.
Doctors Tabor and Lamothe argued that plaintiff failed to comply with the pre-suit notice requirement that each defendant be sent a HIPAA compliant medical authorization. This requirement, found in Tenn. Code Ann. § 29-26-121(a)(2)(E), only requires substantial compliance, but to “substantially comply…a plaintiff must provide a defendant with a HIPAA compliant medical authorization that will allow the defendant to obtain the plaintiff’s medical records from all other providers being sent the notice.” (internal citation omitted).
Here, the medical authorization provided to these two doctors did not allow them to obtain plaintiff’s medical records from a medical group also being provided notice. Accordingly, the Court of Appeals affirmed the finding that the authorization forms were not compliant with the statute, and that plaintiff was not entitled to a 120-day extension of the statute of limitations. Plaintiff’s claims against these defendants were therefore untimely (as they was filed more than one year after the initial nonsuit), and dismissal was affirmed.
As to defendant Doctor Fleenor, the Court found that dismissal was appropriate because plaintiff failed to comply with the savings statute as to this particular defendant. When the first suit was filed, Fleenor was never served with process, which is a requirement for use of the savings statute. The first suit against Fleenor was eventually dismissed for lack of prosecution, with process never being served. Rule 3 of the Tennessee Rules of Civil Procedure states that “[i]f process…is not served within 90 days from issuance…the plaintiff cannot rely upon the original commencement to toll the running of the statute of limitations unless the plaintiff continues the action by obtaining issuance of new process within one year from issuance of the previous process…” Use of the savings statute “is dependent upon a plaintiff’s compliance with Rule 3.” (internal citation omitted). Because plaintiff failed to comply with Rule 3, the initial complaint did not toll the statute of limitations as to Doctor Fleenor, and the second complaint was thus untimely.
Plaintiff attempted to save his claim against Fleenor by arguing that the limitations period was tolled by either fraudulent concealment or the discovery rule. The Court rejected these theories, noting that plaintiff had not plead anything “suggesting that Dr. Fleenor affirmatively concealed [plaintiff’s] injury of the fact that Dr. Fleenor was involved in the care of [plaintiff,]” and further that the first complaint showed that plaintiff was aware that Dr. Fleenor was “one of the physicians involved with his care.”
Finally, the Court of Appeals affirmed dismissal of plaintiff wife’s loss of consortium claim. The Court pointed out that wife was not named as a plaintiff in the first complaint, and that because the latest negligence could have possibly occurred was November 26, 2014, the one-year statute of limitations on wife’s claim had more than run by the time the 2016 complaint was filed. Because wife was “not a party to the 2015 complaint…, [she] was unable to take advantage of the saving statute that was available to her husband.”
Because all of the claims were untimely, dismissal was affirmed.
Giving proper pre-suit notice continues to trip up plaintiffs, especially as it relates to HIPAA compliant medical authorizations. If you are handling an HCLA claim, be sure to use care when preparing and sending these documents, paying attention to each statutory requirement.
And, if you are a pro se plaintiff (as the plaintiffs in this case were, at least on appeal), you are truly facing an uphill battle.