Articles Posted in Medical Negligence

As HCLA cases continue to make their way through the court system, we are learning more about what will constitute substantial compliance with the pre-suit notice content requirements. In the recent case of Harmon v. Shore, No. M2014-01339-COA-R3-CV (Tenn. Ct. App. April 23, 2015), the Court of Appeals reaffirmed what seems like an overly harsh result related to substantial compliance with the required HIPAA authorization.

In Harmon, plaintiff was injured by a procedure performed solely by Dr. Shore. Plaintiff submitted pre-suit notice to the two defendants she later named in her suit, Dr. Shore and the relevant hospital. The HIPAA form enclosed, however, only released plaintiff’s medical records to her own lawyer. Defendants filed a motion to dismiss, which was initially denied in 2013, but following a denial of Rule 9 appeal from the Court of Appeals and then a remand from the Supreme Court to reconsider in light of the holding in Stevens v. Hickman Cmty. Health Care Servs., 418 S.W.3d 547 (Tenn. 2013), the motion to dismiss was granted by the trial court.

Plaintiff did not argue that her HIPAA form strictly complied with the statutory requirements. Instead, her essential argument was that her non-compliance with the technical requirements should be excused because the defendants already had all the records at issue in this case. In her reply to defendants’ motion to dismiss, plaintiff stated:

Appellants submit that an example of sufficient “cause” is that Appellants knew [the hospital] had Dr. Shore’s records. We know [the hospital] had all of her records because it sent them to her four months before the Notice was sent and Dr. Shore’s records were included.

[The hospital] also had a HIPAA compliant medical authorization in its possession as early as June 7, 2012, scarcely a month after the incident. It also had the other Defendant’s records, i.e., Gregg Ian Shore, M.D. We know this because it sent those exact records to Ms. Harmon on June 7, 2010.

We also know that [the hospital] had the Shore records because Shore was their agent and he sent her the same records. Therefore, extraordinary cause exists for the exercise of judicial discretion.

The Court of Appeals rejected this argument and affirmed dismissal of plaintiff’s case. Citing Stevens, the Court stated that “because HIPAA itself prohibits medical providers from using or disclosing a plaintiff’s medical records without a fully compliant authorization form, it is a threshold requirement of the statute that the plaintiff’s medical authorization must be sufficient to enable defendants to obtain and review a plaintiff’s relevant medical records.” Though the errors in the HIPAA form that led to dismissal in Stevens were “multiple” and here plaintiff made the sole error of only allowing disclosure to her own attorney, the Court found this difference immaterial. Quoting Stevens, it noted that “First, and most importantly, by permitting disclosure only to Plaintiff’s counsel, Plaintiff’s medical authorization failed to satisfy the express requirement of Tenn. Code Ann. § 29-26-121(a)(2)(E) that a plaintiff’s medical authorization permit the provider receiving the notice to obtain complete medical records from each other provider being sent notice.”

The Court went on to cite Roberts v. Prill, No. E2013-02202-COA-R3-CV, 2014 WL 2921930 (Tenn. Ct. App. June 26, 2014), where it said that “[t]he question of whether a plaintiff’s permitting disclosure of medical records only to plaintiff’s lawyer is sufficient, standing alone, to warrant dismissal of a lawsuit on grounds of failure to substantially comply with the pre-suit notice requirements” had been answered in the affirmative. Like the plaintiff here, the plaintiff in Roberts argued that the defendant was not prejudiced by the non-compliant HIPAA form because he already had all the relevant records in his possession. The Roberts Court, however, held that “HIPAA generally provides that a covered entity may not use or disclose protected health information without valid authorization. Plaintiff’s case did not fall within one of the limited circumstances anticipated by HIPAA that would allow for the use of the records without authorization. The form failed to provide Defendants with the proper authorization to use the medical records to mount a defense.”

Likewise, the Court here ultimately upheld the trial court’s dismissal of plaintiff’s case, as the error on the HIPAA form allowing disclosure only to plaintiff’s counsel was determined to make the case subject to dismissal.

This result seems excessively harsh considering that the defendants in this case had access to all of the medical records they might have requested with proper HIPAA forms. With two cases on this issue, though, the Court of Appeals appears to have made its opinion fairly clear. It will be interesting to see if the Supreme Court takes one of these cases to provide clarity on this matter.

While some parts of the Health Care Liability Act (HCLA) are making their way towards substantial compliance, the Court of Appeals recently reiterated that the requirement to file a certificate of good faith under Tenn. Code Ann. § 29-26-122 is mandatory. In Dennis v. Smith, No. E2014-00636-COA-R3-CV (Tenn. Ct. App. March 31, 2015), plaintiffs filed an HCLA claim against defendant. Defendant filed a motion to dismiss on the grounds (1) that plaintiffs did not comply with the pre-suit notice requirements because plaintiffs did not attach a HIPAA compliant authorization form to the notice letter, did not attach a list of all heath care providers receiving notice, and did not list the address of the claimant, and (2) that plaintiffs failed to file a certificate of good faith and failed to disclose the number of prior disclosure violations under § 29-26-122(d)(4). The trial court granted defendant’s motion to dismiss, and the Court of Appeals affirmed.

On appeal, the Court focused solely on the certificate of good faith issue, as failure to comply with the certificate of good faith requirements leads to dismissal with prejudice and would therefore be dispositive of the case. Plaintiffs here “concede[d] in their brief on appeal that instead of filing a certificate of good faith in compliance with the statute, plaintiffs filed a statement signed by their expert.” According to plaintiffs, this filing “over-complied by providing more information than the statute requires.” Essentially, plaintiffs argued that they provided the required information plus some and thus should be excused for not technically complying with the statute. The Court firmly disagreed.

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The issue of whether a Tennessee plaintiff who nonsuits his or her first medical malpractice (now heatlh care liability)  complaint must give a second notice before re-filing is a closed matter given the recent ruling in Foster v. Chiles.   In the recent case of  Potter v. Perrigan, No. E2013-01442-COA-R3-CV (Tenn. Ct. App. March 26, 2015), just such a scenario played out.

Plaintiffs gave pre-suit notice on January 8, 2009; they filed their initial suit on April 8, 2009; then on September 8, 2009, they voluntarily dismissed the action. One year later, pursuant to the savings statute, plaintiffs filed a second complaint on September 8, 2010. Attached to this complaint was a certificate of good faith and copy of the previously filed pre-suit notice. Plaintiffs did not send defendants a second pre-suit notice before re-filing their claims. Upon motion of the defendant, the trial court dismissed for failure to comply with Tenn. Code Ann. § 29-26-121. The Court of Appeals initially reversed this decision, holding that “Plaintiffs fulfilled the notice requirement[.]” Defendant then appealed to the Tennessee Supreme Court, which remanded the case for reconsideration in light of an opinion it issued in January, 2015.

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            In Smith v. Testerman, No. E2014-00956-COA-R9-CV (Tenn. Ct. App. March 10, 2015), the Court of Appeals recently took up the issue of whether a case sounds in ordinary negligence or health care liability. After a hernia repair, plaintiff developed an infection requiring additional surgery to place a wound vacuum and a sponge. One defendant was allegedly tasked with changing the sponge as necessary, and another of the defendants was charged with removing the sponge at the appropriate time. When the wound vacuum was removed the sponge was not, eventually leading the wound to burst.  Plaintiff sued defendants alleging that they “were negligent by failing to either remove the sponge or communicate with the other physicians to ensure that the sponge had been removed.”

            Defendant filed a motion to dismiss asserting that the claims fell under the Health Care Liability Act (“HCLA”) and that plaintiff’s failure to comply with the pre-suit notice and certificate of good faith requirements thus necessitated dismissal of the case. Plaintiff responded that he was claiming only ordinary negligence and was therefore not required to comply with the HCLA. Plaintiff asserted that “the fact that the alleged malpractice lies within the common knowledge of laypersons” and therefore did not require expert testimony was proof that the claim sounded in ordinary negligence.

            The trial court denied the motion to dismiss, and the Court of Appeals granted interlocutory appeal to address “[w]hether an action seeking compensatory damages for injuries sustained as a result of a foreign object having been left in the patient’s body following surgery is a ‘health care liability action’ as defined by the [HCLA], such that the mandatory presuit provisions set forth in Tennessee Code Annotated sections 29-26-121 and 29-26-122 apply.”

            In its analysis, the Court noted that “cases involving health or medical entities do not automatically fall within the health care liability statute.” (Quoting Draper v. Westerfield, 181 S.W.3d 283 (Tenn. 2005). To determine whether a case falls within the parameters of the HCLA, the Court pointed to and quoted extensively from the 2011 amendments to the definitions contained in Tenn. Code Ann. § 29-26-101(a), which includes fairly detailed definitions for health care liability action, health care provider, and health care services.

           The Court found that in this particular case, “[e]ach defendant in this case meets the definition of a health care provider.” Further, “the complaint asserts that Defendants were negligent in their care of Plaintiff by failing to remove a sponge that had been placed to aid in Plaintiff’s recovery. Accordingly, Plaintiff’s action should be classified as a health care liability action, unless the context suggests otherwise…[.]”

            Plaintiff’s primary argument was that expert testimony would not be required here, so the claim was simply for ordinary negligence. The Court pointed out that Tennessee case law establishes that “[a] health care liability claimant must establish the statutory elements through the testimony of an expert who meets the qualifications set forth in [the Act],” but that “expert testimony is not required if the negligence is obvious and readily understandable by an average layperson.” (Internal citations omitted). Thus, the Court rejected the argument that the lack of a need for expert testimony automatically excluded a claim from the requirements of the HCLA. Because the need for expert testimony is not dispositive on the issue of whether a claim falls under the HCLA, and because plaintiff’s claims otherwise met the applicable HCLA definitions, the Court held that this was an HCLA case and that the pre-suit notice provisions of § 29-26-121 applied.

            After finding that this was an HCLA claim, the Court determined that this case would require expert testimony, as “[t]he care at issue here goes beyond the type of ‘basic’ or ‘routine’ care that the Supreme Court referred to in [Estate of French v. Stratford House, 333 S.W.3d 546 (Tenn. 2011)] as not requiring expert testimony to establish the standard of care.” The Court determined that this “was not the type of case where a sponge was simply left in the body during surgery,” but that a specific surgery to place the sponge and continued care was needed. The certificate of good faith requirement found in § 29-26-122 was thus applicable, and because plaintiff failed to comply with such requirement his case was dismissed with prejudice.

            This case is a great reminder that when a case involves doctors and medical treatment, it is safest to assume it will under the HCLA and comply with pre-suit notice and certificate of good faith requirements. While it may seem like common sense that a certain action failed to meet the standard of care, if the courts disagree this mistake will likely be fatal to your client’s case.

         Tenn. Code Ann. § 29-26-121(f) allows defendants in a Tennessee medical malpractice (now called healthcare liability) case to petition the court for a “qualified protective order allowing the defendant…and their attorneys the right to obtain protected health information during interviews, outside the presence of claimant or claimant’s counsel, with the relevant patient’s treating ‘healthcare providers[.]’” The section goes on to specifically list four conditions placed on these interviews: (1) that the petition identify healthcare providers the defendant seeks to interview; (2) that plaintiff may object and seek to limit or prohibit the interview, which “may be granted upon good cause shown that a treating healthcare provider does not possess relevant information[;]” (3) that the protective order should limit the use/dissemination of the information and provide for its return or destruction after the litigation; and (4) that the protective order expressly states that a healthcare provider’s participation in such interview is voluntary.[1] In two almost identical recent cases, the Court of Appeals took up the issue of whether a trial court may place additional conditions or restraints on these interviews.

            In both Dean-Hayslett v. Methodist Healthcare, No. W2014-00625-COA-R10-CV (Tenn. Ct. App. Jan. 20, 2015) and S.W. v. Baptist Memorial Hosp., No. W2014-00621-COA-R10-CV (Tenn. Ct. App. Feb. 27, 2015), plaintiffs filed health care liability claims against defendants for alleged professional negligence. At issue in these appeals were the ex parte interviews defendants wanted to conduct with plaintiffs’ treating physicians without plaintiffs or their counsel present. Both sets of defendants moved for qualified protective orders to conduct these interviews, pursuant to § 29-26-121(f), which plaintiffs opposed. The trial courts granted the qualified protective order for the interviews but ultimately placed eight conditions on the interviews in both cases:

(1) That participation by healthcare providers in the interviews was voluntary;

(2) That defendants “should not attempt to elicit or discuss Protected Health Information which is not relevant to the issues in this lawsuit;

(3) That protected health information obtained in the interviews only be used in conjunction with the lawsuit;

(4) That protected health information obtained be destroyed at the end of the litigation;

(5) That defendants could not begin the interviews until a certain date;

(6) That a court reporter had to be present and “record all questions and answers during the interview;”

(7) That the “answers during the interview must be given under oath;”

(8) And that the transcript be filed under seal with plaintiff able to gain access to the record to determine whether there was a HIPAA violation upon showing good cause.

Defendants filed for Rule 10 extraordinary appeals to contest some of these restrictions, and the Court of Appeals granted limited review. Specifically, the Court took up the issue of whether limitations 6-8 (regarding the court reporter, oath, and filing of the transcript) and limitation 2 (regarding limiting the scope of the interviews to protected health information relevant to the issues of the lawsuit) were permissible under the statute.

            In addressing this issue in Dean-Hayslett, the Court reviewed the history of ex parte interviews, noting that the legislature adopted the statutory provision specifically allowing these interviews after they were prohibited by case law. Under the statute, however, ex parte interviews are not unlimited. By its terms, the statute limits the interviews to healthcare information that is relevant to the litigation and it sets parameters for the use and return or destruction of the material.  The defendants in the instant case argued that, pursuant to the statute, the trial court could not impose any additional restrictions on the qualified protective order. The plaintiff, on the other hand, asserted that this protective order was like a pretrial discovery order and the court therefore had the authority to place limitations on the interviews. Disagreeing with plaintiff, the Court determined that the interviews in question did not fall under “discovery.”        

            With this historical and analytical framework established, the Court of Appeals in Dean-Hayslett first addressed the limitations requiring a court reporter, oath, and the filing of the transcript. The Court found that these limitations were not allowable as they would “transform the investigatory interviews authorized by the section into quasi-depositions in contravention of the substantive purpose of the [statute].” Because the section was adopted specifically to allow less formal interviews, the Court held that the trial court did not have the authority to include these provisions in the qualified protective order.

            Regarding the limitation that defendants elicit protected health information only if it was relevant to the litigation, the Dean-Hayslett Court upheld the trial court’s ability to impose this restriction. Although defendants argued that they should be able to inquire into standard of care, causation and other matters, the Court disagreed. The Court found that the statute was “designed to enable defendants to ascertain identifying information and relevant healthcare information more expeditiously than otherwise allowed by the formal discovery process in order ‘to evaluate the substantive merits of a plaintiff’s claim.’” The Court stated that these informal interviews did not extend to opinions regarding causation and standard of care, and it held that this specific limitation could be imposed by the trial court because it did no more than “reflect the parameters of the statute[.]”

            In the S.W. case, the Court of Appeals adopted its reasoning from Dean-Hayslett and quoted lengthily therefrom, coming to the same result. The Court held that the requirements regarding the court reporter, oath and filing of the transcript “transform[ed] the ex parte interviews authorized by the section into quasi-depositions in contravention of the legislative purpose of the statute,” thus striking down those limitations. The Court upheld the restriction related to relevant protected health information “[b]ecause this provision in the trial court’s order does no more than reiterate the parameters set-forth in the statute[.]”

            Because these are the first Court of Appeals cases to address whether the trial court can limited a qualified protective order granted under § 29-26-121(f), they are important to note. Pursuant to these cases, it appears that a plaintiff can only seek limitations on these ex parte interviews based on a healthcare provider not having relevant information. Restrictions that go beyond the statutory limitations will not be allowed. On the other hand, though, defendants will be somewhat limited in the scope of these interviews. Defendants cannot use these interviews to inquire into healthcare topics beyond health information relevant to the litigation.

            Interestingly, Judge Stafford wrote a separate concurring opinion in Dean-Hayslett, which he relied upon and adopted in a concurrence on S.W., expressing concern with the implications of Tenn. Code Ann. 29-26-121(f):

From my reading, Tennessee Code Annotated Section 29-26-121(f)(1)(B) only allows a court to    limit or prohibit an ex parte interview with a treating physician based upon a finding that the physician can offer no evidence relevant to the litigation. It provides no discretion to the trial court to place limits on ex parte interviews where there is high risk that irrelevant and prejudicial information could be inadvertently or intentionally disseminated, nor upon any other showing that such limitation or prohibition may be warranted based upon the facts of that particular case. By limiting the court’s power to place additional restrictions on the grant of qualified protective orders, as may be necessary depending on the circumstances of each individual case, I am disquieted by the fact that Tennessee Code Annotated Section 29-26-121(f)(1) deprives the court of one of its greatest strengths—the ability to evaluate cases on an individual basis, rather than by pandemic approval or prohibition.

Under these circumstances, while I discern no legal basis to dissent from the majority’s holding, given the current state of the law, I write separately to express my belief that this decision may constitute a step backward in patient privacy jurisprudence.

As the courts continue to interpret the HCLA and the legislature continues to mold and amend the statute, it will be interesting to see if this concern is heeded.

[1] Note that the fourth condition, found in § 29-26-121(f)(1)(C), was added to the Code in 2013. Because the Dean-Hayslett case was filed in 2012, it was decided under a previous version of the statute which did not include the voluntariness condition, but this did not affect the outcome of this case.

The Tennessee Supreme Court will hear two health care liability disputes among four cases scheduled for oral arguments March 4, 2015 in Jackson, Tennessee, one of which will address an interesting civil procedure question.

The first case concerns the procedures required when filing a health care liability lawsuit. At the time the suit was filed, state law required a plaintiff to file a certificate within 90 days of the initiation of a lawsuit, confirming that the plaintiff has consulted with medical experts before filing the suit and stating whether the plaintiff’s lawyer has ever been in violation of the law requiring the certificate. In this case from Dyer County, the attorney, who had never violated the statute, filed the required certificate but did not state that he had zero prior violations of the statute. The defendants sought dismissal of the case based on that omission. The plaintiffs sought to dismiss the case with the option to refile it.

The trial court allowed the dismissal and the defendants appealed. The Supreme Court will consider whether the failure to indicate zero prior violations of the law constitutes a failure to comply with the law requiring the good faith certificate.  The case is Timothy Davis v. Michael Ibach, M.D. and Martinson Ansah, M.D. 

In the second health care liability case, the Supreme Court will consider whether to change the standard for granting and denying motions for summary judgment. Summary judgment is a decision by a trial court before the case is heard, based on a determination that there is no material dispute about the case’s facts.

In this case, a couple sued a Memphis health care center for failing to provide treatment during the mother’s pregnancy that, while not injuring the mother or harming her unborn child, could lead to complications in future pregnancies. The Court will determine whether the trial court properly granted the defendant’s summary judgment on some of the issues in the case. Michelle Rye  v. Women’s Care Center of Memphis, MPLLC.  

         The interplay between the saving statute and the 120-day extension provided by the HCLA in Tenn. Code Ann. § 29-26-121(c) continues to be a hotly litigated topic, with the Tennessee Court of Appeals adding another opinion to the mix this week. In 2013, the Supreme Court held that transitional plaintiffs (those whose initial suits were filed before the pre-suit notice requirement was enacted but who nonsuited and re-filed after the pre-suit notice requirement went into effect), who were required to give pre-suit notice before re-filing their lawsuit, were entitled to the 120-day extension even though they were filing their second suit pursuant to the saving statute instead of the traditional statute of limitation. Rajvongs v. Wright, 432 S.W.3d 808 (Tenn. 2013). Then just a month ago, the Supreme Court held that the HCLA “requires that plaintiffs provide pre-suit notice to prospective health care defendants each time a complaint is filed,” meaning that a plaintiff who gives proper notice, nonsuits, then re-files must give a second notice before the re-filing of the claims, even if the claims are identical. Foster v. Chiles, 2015 WL 343872 (Tenn. Jan. 27, 2015). Now, in Tinnel v. East Tenn. Ear, Nose, and Throat Specialists, P.C., No. E2014-00906-COA-R3-CV (Tenn. Ct. App. Feb. 25, 2015), the Court of Appeals has interpreted these prior cases to find that a plaintiff who nonsuits an HCLA case and then gives proper notice and re-files is entitled to the 120-day extension on the re-filed complaint.

            In Tinnel, plaintiff suffered an injury during an outpatient procedure resulting in blindness in one eye. The procedure was performed on February 3, 2009. Plaintiff gave proper pre-suit notice on May 19, 2009, then filed suit on February 3, 2010. On December 14, 2010, plaintiff voluntarily dismissed the first lawsuit. Subsequently, on October 18, 2011 and within one year of the nonsuit, plaintiff provided a second set of pre-suit notices to defendants. Plaintiff filed her second suit on April 3, 2012, which was more than a year from the date of her previous nonsuit but within the time that would be included if the 120-day extension were applied. Defendant moved for summary judgment on the basis that the second suit was not timely.

            Plaintiff argued that the reasoning the Supreme Court used in Rajvongs should not be confined to transitional plaintiffs and should apply to provide her with the 120-day extension. Moreover, she asserted that since her first suit was filed within the traditional one-year statute of limitation, she had not yet utilized the 120-day extension. Defendants asserted that the Rajvongs holding should be limited only to transitional plaintiffs and that plaintiff automatically received the 120-day extension on her first suit, whether she used it or not, and was therefore not entitled to another extension. The trial court dismissed the case, and plaintiff appealed.

            In its analysis, the Court quoted lengthily from both Rajvongs and Foster, emphasizing that in Foster the Supreme Court made it clear that plaintiffs who utilize a nonsuit must give a second notice before re-filing the same complaint and that in Rajvongs the same court stated that they were “unable to conclude that the General Assembly would require transitional plaintiffs to provide pre-suit notice before refiling under the saving statute and yet deprive such plaintiffs of the 120-day extension.” Rajvongs, 432 S.W.3d at 814. The Court of Appeals thus held:

             Like the Supreme Court in Rajvongs, we are unable to conclude that the General Assembly would require plaintiffs to provide pre-suit notice before refiling under the saving statute and yet deprive them of the 120-day extension. …We hold that Plaintiff was entitled to the 120-day extension provided for in section 29-26-121(c) because she provided Defendants with pre-suit notice that she intended to recommence her action. In so holding, we reject Defendants’ argument that Plaintiff was only entitled to the use of one extension. Plaintiff’s re-filed complaint was a new and independent action.

              Accordingly, the Court removed the “transitional plaintiff” limitation from the Rajvongs ruling and held that the 120-day extension applies to all HCLA plaintiffs re-filing under the saving statute, whether they have previously used such an extension or not, so long as pre-suit notice is provided.

            The Court of Appeals reached the sensible result in this case. If plaintiffs are required to give pre-suit notice before re-filing a complaint identical to one that was previously nonsuited, then they should also be given the benefits that come along with such notice. Otherwise, the defendant receives the procedural benefit of notice (and the corresponding challenges that often come regarding the sufficiency of such notice), yet the plaintiff loses the benefit statutorily tied to this additional requirement. Since current case law requires a pre-suit notice for each filing, an extension should also accompany each pre-suit notice.

            Should defendant decide to appeal, it will be interesting to see whether the Supreme Court decides to take this case. The tone of this opinion seems a bit reactive—a panel of the Court of Appeals held in the recently decided Foster case that an original notice was sufficient for any subsequently filed complaints, but then the Supreme Court reversed that holding. The Court of Appeals in the present matter specifically points out this disagreement and then uses language pulled from Foster to find that if a pre-suit notice is required, then plaintiffs should at least gain the benefit of the 120-day extension. This is definitely an area of HCLA interpretation that is important for practitioners to watch, as it is unclear what the Supreme Court would hold regarding this issue.

          In 2011, the Tennessee legislature amended the Health Care Liability Act (“HCLA”) to add language regarding governmental entities to the chapter. Per the amendments, health care liability action now specifically includes “claims against the state or a political subdivision thereof,” and health care provider includes “those physicians and nurses employed by a governmental health facility.” Tenn. Code Ann. § 29-26-101. The Court of Appeals first found that this language meant that the 120-day extension of the statute of limitations applies to HCLA cases that fall under the Governmental Tort Liability Act in Harper v. Bradley County, No. E2014-00107-COA-R9-CV, 2014 WL 5487788 (Tenn. Ct. App. Oct. 30, 2014). Now the Court has come to that same conclusion in two additional opinions.

            Before the 2011 amendments took effect, the HCLA contained no reference to governmental entities. In Cunningham v. Williamson Cnty. Hosp. Dist., 405 S.W.3d 41 (Tenn. 2013), the Tennessee Supreme Court determined that the HCLA, as it existed prior to the 2011 amendments, did not “evince an express legislative intent to extend the statute of limitations in GTLA cases.” Accordingly, a plaintiff bringing an HCLA claim against a governmental entity was still constricted by the one-year statute of limitations and unable to take advantage of the 120-day extension granted to plaintiffs who give proper pre-suit notice.

            Although the Supreme Court has not addressed the interplay of the GTLA and HCLA since the 2011 amendments took effect, the Court of Appeals has now found in three cases that, pursuant to the new language, plaintiffs suing governmental entities under the HCLA are entitled to the 120-day extension so long as they provide proper pre-suit notice. After Harper, the Court reaffirmed its reasoning in Banks v. Bordeaux Long Term Care, 2014 WL 6872979 (Tenn. Ct. App. Dec. 4, 2014). Here, plaintiff sent pre-suit notice prior to the expiration of the one-year statute of limitations then filed suit within the subsequent 120-day window. The trial court dismissed plaintiff’s claim as untimely, but the Court of Appeals reversed. After citing the changes to the HCLA and the reasoning from Harper, the Court held that “Plaintiff’s pre-suit ‘notice’ to the governmental entities was sufficient in all respects; therefore, the GTLA statute of limitations was tolled for an additional 120 days.”

            Likewise, in Wade v. Jackson-Madison Cnty. Gen. Hosp. Dist., No. W2014-01103-COA-R3-CV (Tenn. Ct. App. Jan. 27, 2015), the trial court dismissed plaintiff’s claims as untimely. Here, plaintiff was first admitted to the hospital on October 11, 2011, with several procedures and treatments following that date and a final surgery on December 1, 2011. In this particular case, the defendants asserted a new argument regarding why the 120-day extension should not apply to them. The definitions of health care liability action and health care provider were amended to include references to governmental entities effective October 1, 2011, before the cause of action in this case accrued. The remainder of the HCLA at that time, however, still used the term “medical malpractice,” including the section that granted the 120-day time extension. (The term “health care liability” was not added to § 29-26-121 until April 23, 2012.) The defendants in Wade argued that because the HCLA “did not use the term ‘health care liability action’ at the time of the allegedly negligent conduct in this case, the definition of ‘health care liability action’ in [§ 29-26-101(a)(1)] is wholly irrelevant to this case.” According to the defendants,  “the definition of a term cannot amend a statute unless the statute actually contains the term in the first place.”

            The Court rejected this argument in three ways. First, it stated that the terms “health care liability action” and “medical malpractice” are “synonymous and interchangeable,” such that the definition of one could be considered when interpreting the other. Second, the Court found that the legislature intended the 2011 amendments to have an effect on the HCLA, and that defendants’ argument would render the language change effect-less. Finally, the Court held that even if the language in the statute at the time was ambiguous, the “Tennessee Civil Justice Act evince[d] a legislative intent that ‘health care liability action’ be synonymous with medical malpractice.” Accordingly, the Court in Wade also found that the legislature intended that HCLA cases falling under the GTLA be subject to the 120-day extension and thus reversed the trial court’s dismissal of the case.

            These cases clearly reached the correct result. The 2011 amendments to the HCLA clearly show that the legislature intended for the HCLA time extension to override the GTLA’s one-year statute of limitations. Although the Supreme Court has not yet spoken on this issue, the Court of Appeals has shown that it will continue to decide this issue in favor of plaintiffs who take advantage of the time extension in such cases.  That said, until the TSC speaks, we cannot be assured that it will do what it should and thus practitioners should plan accordingly.

          As Tennessee courts continue to decide new Health Care Liability Act (“HCLA”) cases, nuances of the law are beginning to be parsed out for practitioners’ guidance. The Tennessee Supreme Court recently took up such a nuance, determining that pre-suit notice must be given before the filing of each complaint under the HCLA.

            In Foster v. Chiles, No. E2012-01780-SC-R11-CV (Tenn. Jan. 27, 2015), plaintiffs filed an HCLA claim against multiple defendants on March 17, 2011, which was within the appropriate statute of limitations. In connection with this first complaint, plaintiffs gave proper pre-suit notice under Tenn. Code Ann. § 29-26-121(a). On May 6, 2011, plaintiffs voluntarily dismissed the case. On May 4, 2012, within the one-year savings statute, plaintiffs filed a new complaint asserting the same claims against the same defendants. This second complaint stated that the notice requirements had been met as shown by an attached affidavit, but nothing was attached. The plaintiffs, in fact, did not give pre-suit notice after dismissing their first complaint and before filing their second. Instead, they relied on the first notice given to comply with the HCLA.        

            Defendants moved to dismiss, asserting that the HCLA required plaintiffs to give notice each time a complaint was filed. The trial court agreed, dismissing plaintiffs’ second complaint with prejudice. The Court of Appeals, however, reversed, finding that the HCLA “required only that Defendants be notified once.” The Supreme Court then took up the issue on appeal.

            The Court pointed to the word “shall” used in § 29-26-121(a), as well as a quote from the bill’s co-sponsor saying the law was “designed to give people notice that there’s about to be a claim and to put everyone who might be involved on notice that a suit will shortly be filed.” The Court also examined the purpose of the pre-suit notice requirement, stating that it was intended to give timely notice, to “afford defendants the opportunity to investigate the merits of a claim and to pursue settlement negotiations before a suit is filed.” Because the plaintiffs here did not give pre-suit notice before filing their second complaint, the Court determined that the purpose of the statute was frustrated, as defendants “had no advance notice of the second suit, no chance to investigate the claim, and no opportunity to pursue settlement negotiations before the suit was filed.”

            Accordingly, the Court held that the HCLA “requires that plaintiffs provide pre-suit notice to prospective health care defendants each time a complaint is filed,” even in a case such as this where a previous complaint alleging the same claims against the same defendants had been properly noticed and filed. When plaintiffs fail to give this notice, the Court held that the proper sanction is dismissal without prejudice.

            Justice Wade filed a separate, dissenting opinion in this case, in which he sided with the Court of Appeals. He stressed that a voluntary nonsuit is not unusual and does not have any affect on the defendants’ prior notice of the claims. He stated that nothing in the HCLA requires more than one notice of the same claims, the HCLA does not provide for a notice lapsing or expiring upon a nonsuit, and that plaintiffs here had complied with the law.

            The dissenting opinion here seems to be the more reasonable approach. While the HCLA requires that pre-suit notice be given at sixty days before filing suit, it does not contain an outside limit on how long a proper pre-suit notice lasts. As Justice Wade noted, pre-suit notices do not statutorily expire. Despite the well-reasoned dissent, though, the law now requires plaintiff give defendants pre-suit notice before each complaint, even if the complaint filed is identical to one previously filed.  Therefore,  an attorney who takes a nonsuit with the intent to re-file in an HCLA case needs to make sure to calendar not just the savings statute deadline, but the resending of pre-suit notice as well.

             The purpose of the pre-suit notice law was to give potential defendants the opportunity to settle meritorious cases and narrow down the number of defendants in cases that were actually filed.  Instead, it is turned into a series of complicated hoops that one must jump through to be able to file suit – hoops that have nothing to do with the merits of the case.  

           A plaintiff filing a claim under the Tennessee Health Care Liability Act (HCLA) must prove certain elements, such as the recognized standard of practice, by expert testimony. Tenn. Code Ann. § 29-26-115(b) contains requirements for experts to qualify under the Act, including that the expert was licensed to practice in Tennessee or a contiguous state in a relevant profession or specialty and that the person practiced that profession or specialty in such a state during the year preceding the alleged injury. According to a recent Tennessee Court of Appeals case, however, the HCLA does not require a purported expert to have received monetary compensation for the practice in order to qualify under the Act.

               In Adkins v. Assoc. of the Memorial/Mission Outpatient Surgery Ctr., LLC, No. E2014-00790-COA-R3-CV (Tenn. Ct. App. Jan. 13, 2015), plaintiff had received a nerve block during a knee procedure, rendering her leg immobile. Her leg was still immobile upon discharge, so a nurse helped plaintiff to her vehicle in a wheelchair and proceeded to lift her into the car. While assisting plaintiff, the nurse dropped plaintiff between the front seat and dashboard of the vehicle, and plaintiff sustained injuries.

               Plaintiff gave proper pre-suit notice and filed her complaint, attaching a certificate of good faith as required by the HCLA. The only expert identified by plaintiff was Sandra Gupton, R.N. Defendant moved for summary judgment on the grounds that Gupton was not qualified as an expert because she was not a practicing nurse in the year preceding the incident. Defendant pointed to Gupton’s deposition testimony where “she stated she had not practiced in the nursing profession during the time period in question.” Plaintiff argued that Gupton had testified that she was busy with her mother-in-law, and that Gupton had in fact been her mother-in-law’s private nurse during this time. Defendant asserted that the alleged employment with her mother-in-law was not sufficient to qualify her as an expert because she was not compensated.

               The trial court found for defendant, relying on the fact that there was no evidence Gupton had been compensated for nursing services during the relevant year. The Court of Appeals, however, overturned this ruling.

               The Court first noted that while the requirements for an expert under the HCLA are that the expert be licensed to practice and have practiced within a relevant time frame, the HCLA does not define the term practice. Defendant pointed to Tenn. Code Ann. § 63-7-103(a)(1), a separate portion of the Tennessee Code related to professions of the healing arts, which defines the “practice of professional nursing” as the “performance for compensation of any act [falling within a certain definition]….” The Court of Appeals pointed out, however, that in 2005 the legislature amended the introductory section of this chapter to remove any reference to compensation. See Tenn. Code Ann. § 63-7-101. By taking out the compensation reference, the Court concluded that “the legislature recognized what this court also recognizes, namely that one may practice the nursing profession with our without receiving compensation.” The Court further found that the HCLA expert statute “does not contain a compensation requirement, and to read one into the statute would be contrary to the legislature’s intent.”

               The Court of Appeals thus held that “monetary compensation is not required to establish that an expert has practiced in his or her field,” overturned the summary judgment for defendant, and found that Gupton’s failure to receive compensation for the services she provided her mother-in-law did not bar her from being qualified as an expert under the HCLA.

               This was clearly the correct result in this case. Whether a person has practiced a health care profession (and thus is familiar with the standard of care)  is not necessarily contingent on whether he or she was paid for those services. One can think of a myriad of situations where a person might not receive traditional compensation, such as caring for a friend or family member or performing volunteer work. Deciding to practice in one of these scenarios should not operate as an automatic bar to expert qualification under the HCLA.  Rather, the jury should consider all prior experience, for pay and otherwise, in determining whether the expert is truly aware of the standard of care.