A recent Court of Appeals opinion shows yet another case of a potentially valid health care liability claim failing because of plaintiff’s failure to follow the goofy yet mandatory procedural notice requirements of the HCLA statute.
In Piper v. Cumberland Medical Center, No. E2016-00532-COA-R3-CV (Tenn. Ct. App. Jan. 20, 2017), plaintiff wife sued after her husband died while under the care of defendant physicians and hospital. According to the allegations in the complaint, husband went to the hospital due to fatigue and was diagnosed with stage four kidney failure. Plaintiff asserted that ten days after her husband’s admission to the hospital, one of the defendant physicians told her that “it was a shame they couldn’t treat her husband due to his religious beliefs.” At this point, plaintiff discovered that her husband had incorrectly been identified as a Jehovah’s Witness. She corrected the information and gave consent to treat, but her husband died shortly thereafter. Plaintiff alleged that defendants provided negligent treatment and “were negligent because they incorrectly assumed that Decedent’s religious beliefs guaranteed that he would reject available life-saving treatment and because they failed to ask Decedent or [plaintiff] for permission to administer such treatment.”
In her complaint, plaintiff alleged to have complied with the notice provisions of the HCLA, Tenn. Code Ann. § 29-26-121. Plaintiff, however, only attached to her complaint “copies of undated postal receipts addressed to each defendant.” She did not attach “a certificate of mailing from the United States Postal Service, an affidavit regarding her mailing of the notices, or copies of the notices.” Defendants moved to dismiss based on plaintiff’s failure to comply with the pre-suit notice requirements. According to defendants, the only thing they received from plaintiff prior to her filing the complaint was an undated notice letter.
The trial court granted defendants’ motions to dismiss, finding that plaintiff had failed to comply with § 29-26-121(a)(2)((D) and (E) when she did not provide defendants with “a list of the name and address of all providers being sent notice” and a HIPAA compliant medical authorization. The Court of Appeals affirmed dismissal.
The content requirements of the HCLA pre-suit notice can be fulfilled through substantial compliance. (internal citation omitted). “[T]o determine whether a plaintiff has substantially complied with a statutory requirement, a reviewing court should consider the extent and significance of the plaintiff’s errors and omissions and whether the defendant was prejudiced by the plaintiff’s noncompliance.” (internal citation and quotation omitted). Subsections (a)(2)(D) and (E) of the notice statute specifically require a plaintiff to provide defendants with a list of other providers being sent notice and a HIPAA compliant medical authorization. These components of the pre-suit notice “serve an investigatory function, equipping defendants with the actual means to evaluate the substantive merits of a plaintiff’s claim by enabling early discovery of potential co-defendants and early access to a plaintiff’s medical records.” (internal citation omitted).
Here, the Court ruled that plaintiff’s failure to provide these two notice components “would prohibit Defendants from obtaining medical records from other co-defendants and utilizing their own records to mount a defense.” The Court thus held that plaintiff’s “errors and omissions in this matter were significant and that the Defendants were prejudiced thereby.”
Plaintiff argued that she had sent a HIPAA release to defendants several months before the pre-suit notice was sent, and that this should count towards compliance with the notice statute. The Court, though, pointed out that this release “allowed disclosure of Decedent’s protected health information only to [plaintiff’s] counsel,” and that this release would not satisfy the pre-suit notice statute “because it does not allow the health care providers to obtain medical records from one another and does not allow the health care providers to use the medical records in their own possession to prepare a defense.” The Court stated that “[a]ssuming, arguendo, that mailing a medical authorization to a medical defendant some months prior to the actual dispatch of a pre-suit notice letter could constitute substantial compliance with Tennessee Code Annotated § 29-26-121(a)(2)(E), we determine that the authorizations sent by [plaintiff] were nonetheless noncompliant.”
Plaintiff also asserted that her noncompliance should be considered “excusable neglect” under Rule 60 of the Tennessee Rules of Civil Procedure because “the attorney who prepared the notices was inexperienced and because allegedly the actions of the defendants resulted in Decedent’s death.” The Court found this issue to be waived, as this argument was not made at the trial court level. Further, the Court pointed out that the notice statute “provides trial courts with discretion to excuse compliance only for ‘extraordinary cause shown’ and makes no mention of excusable neglect.”
Dismissal of the complaint was thus affirmed.
This is another unfortunate case of a potentially meritorious case being dismissed based on a plaintiff’s failure to follow the pre-suit notice requirements of the HCLA. The statute is a significant challenge for even lawyers with significant experience, and those neophytes who attempt to file an HCLA claim will find the giving of notice and the filing of a complaint the first of only a long line of substantive, procedural and tactical high hurdles.