Improper Notice Under TCA § 29-26-121 – The Savings Statute Does Not Save Case

If an HCLA plaintiff fails to provide proper pre-suit notice and files her first complaint after the statute of limitations has passed (but within the 120-day grace period), her case will not be saved by voluntarily dismissing and trying to use the savings statute to refile.

In Dortch v. Methodist Healthcare Memphis Hospitals, No. W2017-01121-COA-R3-CV (Tenn. Ct. App. Feb. 5, 2018), plaintiff filed a health care liability suit against defendants based on the death of her son following a surgery on April 3, 2014. On April 6, 2015, plaintiff’s counsel served a purported pre-suit notice of her HCLA claim on defendants, pursuant to Tenn. Code Ann. § 29-26-121. This notice contained HIPAA authorization forms that “only permitted the recipient entity to send the medical records of [the deceased] to plaintiff’s counsel.” The statute, however, requires that the HIPAA forms included with the notice permit “the provider receiving the notice to obtain complete medical records from each other provider being sent a notice.” (Tenn. Code Ann. § 29-26-121(a)(2)(E)).

Plaintiff filed her initial complaint on July 1, 2015, after which defendants filed a motion to dismiss based on the deficiencies in the pre-suit notice. Plaintiff then filed a notice of voluntary dismissal, and an order of dismissal was entered on September 17, 2015.

On July 6, 2016, plaintiff sent a second pre-suit notice to defendants, then she re-filed her complaint on September 16, 2016. Defendants moved to dismiss this complaint, alleging that plaintiff’s first complaint was untimely and that she was thus not entitled to take advantage of the one-year savings statute. The trial court agreed, granting the motion to dismiss, and the Court of Appeals affirmed.

In order to voluntarily dismiss and then take advantage of the one-year savings statute to re-file a case, a plaintiff’s first complaint must be timely filed. In this case, the Court pointed out that plaintiff’s first complaint was filed outside the one-year limitations period running from the date of injury, so the only way the initial complaint could be considered timely is if plaintiff gave proper pre-suit notice and was thus entitled to the 120-day extension of the statute of limitations under the HCLA. The crux of this case, then, was whether plaintiff’s first purported pre-suit notice was sufficient, and the Court found that there was “no dispute that the medical authorization was deficient.” The HIPAA form sent by plaintiff “only permitted the recipient providers to send medical records to plaintiff’s counsel, not to each other provider being sent notice…” The Court pointed out that “this error has been determined on multiple occasions to be a failure to substantially comply with the pre-suit notice requirements in section 121.” (internal citations omitted). Because her pre-suit notice was deficient, plaintiff did not receive the 120-day extension, and her first complaint was time-barred.

Plaintiff argued that the trial court erred by looking back to the timeliness of the first complaint, asserting that this second complaint was “an entirely new cause of action.” The Court rejected this argument, holding that “the trial court in this case properly looked to the timeliness of the first complaint to determine whether the second complaint was time-barred.” Because the first complaint was filed outside the statute of limitations, the savings statute did not apply, and dismissal was affirmed.

As questions around the HCLA become more settled, we are seeing fewer of these deficient pre-suit notice cases. This case is a reminder, though, that plaintiff’s counsel must carefully follow the HCLA pre-suit notice requirements. Failure to do so can be catastrophic to a case.

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