Day on Torts
Tennessee Courts continue to make it clear that each time you re-file a previously dismissed Tennessee medical malpractice (now health care liability) claim, you must abide by the statutory requirements. In Cright v. Overly, No. E2015-01215-COA-R3-CV (Tenn. Ct. App. Oct. 17, 2016), the Court of Appeals addressed the need for a plaintiff who was re-filing a previously nonsuited complaint to attach a new HIPAA-compliant release to the second pre-suit notice letter, determining that her failure to do so meant the complaint should be dismissed.
Plaintiff sued multiple defendants related to the treatment and death of her husband. In August 2009, before filing the first suit, plaintiff sent pre-suit notices with a HIPAA-compliant medical authorization to each of the defendants. This action proceeded through discovery and eventually made it to trial, but three days into trial plaintiff moved for a voluntary dismissal.
After the dismissal, plaintiff sent pre-suit notices to the defendants again, but this time she did not include a HIPAA release. Instead, the letter stated: “Medical records of the entire UT Hospital admission at issue have been previously provided to you, as well as any other records you wished to obtain pursuant to an Agreed RAS Order entered in the [original suit].” When plaintiff filed her second complaint, defendants all filed motions to dismiss based on plaintiff’s failure to include a HIPAA-compliant release with her pre-suit notice pursuant to Tenn. Code Ann. § 29-26-121. Plaintiff’s attorney asserted that a HIPAA release “was not attached, because the parties had previously entered an agreed order that the RAS service and record ordering procedure was to be the exclusive means for obtaining the deceased’s medical records, to the exclusion of any medical authorizations previously provided.” The trial court, however, granted the motions to dismiss, and the Court of Appeals affirmed.
In analyzing this issue, the Court noted that “a plaintiff’s less-than-perfect compliance with Tenn. Code Ann. § 29-26-121(a)(2)(E) should not derail a healthcare liability claim,” and that a “plaintiff must substantially comply, rather than strictly comply, with the” statutory requirements contained therein. (internal citations omitted). The test for substantial compliance is “the significance of the plaintiff’s errors and omissions and whether the defendant was prejudiced by the plaintiff’s noncompliance.” (internal citation omitted).
Here, instead of providing a HIPAA form, plaintiff referenced an agreed order from the previously dismissed case. That order, though, stated that it remained in effect “until the final disposition of the above-styled lawsuit.” When plaintiff’s nonsuit was entered, the order was thus invalid, and it had been invalid “for several months prior to the filing of this case.” Further, as the Court has done in HIPAA form cases before, it pointed out that the HIPAA release is needed to both disclose and use medical information. Even if the defendants had the relevant information, the Court reasoned that they could not use the information in the current suit without an appropriate HIPAA-compliant release. Accordingly, the Court held that plaintiff’s “failure to provide a medical authorization in this case is significant and would necessarily prejudice the defendants if this case proceeded further.”
Plaintiff argued that her failure to provide a HIPAA form should be excused for extraordinary cause, but the Court quickly rejected this. To support her argument, plaintiff pointed to the allegation that all parties knew the original dismissal was not the conclusion of the case; that the previously entered order “reflected the past agreement of the parties that took the records outside of the use of further HIPAA authorizations altogether;” that defendants did not raise the lack of HIPAA form in their answer (which they were not required to do); that dismissing the case would be “against all logic and…a severe injustice;” and that the case should be decided on its merits. The Court, though, noted that none of these allegations, even if true, rose to the level of extraordinary cause contemplated by the statute, and the requirement to file the HIPAA form was thus not waived.
Finally, plaintiff argued that some of her claims should have survived dismissal as they fell under ordinary negligence rather than medical malpractice. Specifically, she asserted that her claims that one of the defendants failed to follow policy were claims of ordinary negligence. Because this claim arose before the 2011 amendments to the HCLA, it was analyzed under the common law standard, although the outcome would have most likely been the same under either. The Court upheld dismissal of all claims as HCLA claims, finding that “knowing whether hospital procedures, training, documentation, and communication were proper would be beyond the scope of an ordinary person’s basic understanding.” The dismissal of the case in total was thus affirmed.
This is one of those cases where common sense and the HCLA don’t always seem to land on the same page. Here, defendants unquestionably had all the relevant records already. The previous case had made it all the way through discovery and trial had begun. The statute requires, however, that each new filing have its own pre-suit notice and HIPAA form, and plaintiffs need to be careful to comply or risk having their entire case dismissed.