Failure to comply with HCLA pre-suit notice requirements will not be excused due to local practice, and a final order dismissing defendants from a suit that is not appealed cannot later be revised by the trial court through a decision in a second suit.
In Smith v. Wellmont Health System, No. E2017-00850-COA-R9-CV (Tenn. Ct. App. July 9, 2018), plaintiff filed an HCLA claim against several defendants, all of whom filed motions to dismiss based on an inadequate HIPAA authorization in the pre-suit notice. The trial court granted three defendants’ joint motion to dismiss and entered a dismissal order, from which plaintiff did not appeal. Before the motions from the other defendants were decided, plaintiff voluntarily nonsuited those claims.
Plaintiff subsequently sent a second pre-suit notice to all original defendants and filed a second suit naming all of them, including the three dismissed from the original suit. All defendants filed motions to dismiss in this case as well, and the trial court denied them all. It ruled that its first dismissal order was incorrect because “plaintiff’s first complaint was not time-barred because…plaintiff provided proper pre-suit notice.” This interlocutory appeal followed.
The issues in this case were identical to those in Roberts v. Wellmont Health System, No. 2017-00845-COA-R9-CV (Tenn. Ct. App. July 5, 2018), a decision that came out just four days before this one. In both cases, plaintiff provided a HIPAA authorization that left blanks for which parties could disclose protected health information, to whom disclosures could be made, and the expiration date. Here, the Court noted that plaintiff expressly stated in a letter accompanying the HIPAA form that defendants “could use the authorizations to get the records of the other Defendants and he invited them to contact him if they had any questions.” In this case, like in Roberts, the plaintiff and trial court relied on the fact that providing blank forms was the local practice to deem the forms sufficient.