Defective Pre-Suit Notice In Case 1 Bars Use of Savings Statute in Case 2

 

In order to take advantage of the 120-day extension of the Tennessee HCLA provided by giving pre-suit notice, a plaintiff must have provided a HIPAA-compliant medical authorization with the notice.

The case of Webb v. AMISUB (SFH) Inc., No. W2017-02539-COA-R3-CV (Tenn. Ct. App. Mar. 29, 2019), concerned whether a re-filed healthcare liability claim that was filed in reliance on the savings statute was timely, with the Court of Appeals ultimately affirming dismissal of the case. The alleged medical negligence took place on July 26, 2009, and plaintiffs initially gave pre-suit notice on July 21, 2010. That notice included purported HIPAA releases, but “the portion of the forms designating to whom records may be released was left blank.” On September 23, 2010, plaintiffs filed their initial lawsuit, naming as defendants the hospital, a doctor, and four nurses. The doctor and nurses filed a motion for summary judgment, arguing that plaintiffs’ HIPAA authorizations were insufficient, and that they could thus not take advantage of the 120-day extension under the HCLA and the suit was barred by the one-year statute of limitations. The trial court agreed, and after an interlocutory appeal, plaintiffs voluntarily dismissed their claim against the hospital.

Within one year of this nonsuit, plaintiffs re-filed the instant matter against the hospital, relying on the savings statute. Defendant hospital filed a motion to dismiss, asserting that “Plaintiffs could not rely on the Savings Statute because Plaintiffs did not commence the 2010 action within the one-year statute of limitations,” and that “Plaintiffs did not qualify for § 121(c)’s 120-day extension to the statute of limitations because they failed to provide a HIPAA-compliant medical authorization with the 2010 pre-suit notice.” Because the first suit was untimely, defendant asserted, this second suit was also time-barred. The trial court agreed, and the Court of Appeals affirmed.

On appeal, plaintiffs put forth several arguments to support their theory that the case was timely. Plaintiffs asserted that “decisions by the Tennessee Supreme Court and the rules of statutory construction establish that a claimant is entitled to the 120-day extension under § 121(c) simply by providing pre-suit notice to potential defendants,” and/or that “compliance with the notice-content requirements in § 121(a)(2)(A) through (D) constitutes substantial compliance with § 121(a) ‘as a whole’ and entitles claimant to the extension.” The Court rejected both of these arguments, finding that “Tennessee courts have interpreted § 121(c) as requiring plaintiffs to comply with [the HIPAA authorization subsection] to qualify for the 120-day extension.” The Court held that “a plaintiff cannot qualify for the extension under the [HCLA] without complying with [the HIPAA authorization subsection]” of the healthcare liability statute.

The Court also rejected plaintiffs’ assertion that “the trial court’s holding has the effect of a dismissal with prejudice and, thus, is contrary to the Tennessee Supreme Court’s directive” in a prior case. The Court noted that it was undisputed that the first suit was filed outside the one-year statute of limitations, and it made the distinction that it was “not dismissing Plaintiffs’ second complaint for noncompliance with § 121(a)(2)(E); rather, we are holding that Plaintiffs’ noncompliance prevented them from obtaining the 120-day extension and, thus, Plaintiffs did not qualify for the one-year savings period[.]” The Court therefore affirmed dismissal of the case.

The Court of Appeals also considered plaintiffs’ argument that the HCLA violated the right to privacy, finding that when a plaintiff brings an HCLA case they are voluntarily waiving their constitutional right to privacy.

This case shows how difficult it can be to correct an issue with pre-suit notice. Here, even though plaintiff may have given sufficient pre-suit notice in the second case, the failure to do so initially meant that the first case, and thus also the second case, was time-barred.