Med Mal Notice Statute and Governmental Entities

Substantial compliance is sufficient to meet the requirements regarding documents to be attached to a Tennessee HCLA complaint, even when the defendant is a governmental entity.

In Clary v. Miller, No. M2016-00794-COA-R3-CV (Tenn. Ct. App. Aug. 8, 2017), plaintiff served timely pre-suit notice of her HCLA complaint, and attached a HIPAA-compliant authorization to the pre-suit notice. When she later filed her complaint, she attached copies of the pre-suit notice and proof of service, but she failed to attach copies of the HIPAA authorization.

Defendants, which included a medical center considered a governmental entity, moved to dismiss on the basis that the HIPAA authorizations were not attached to the complaint. The trial court granted the motion, finding that plaintiff substantially complied with the HCLA requirements but that “strict compliance was required because [defendant] was a governmental entity.” The Court of Appeals, however, reversed this holding.

The HCLA requires that “pleadings shall state whether each party has complied with [the pre-suit notice requirements] and shall provide the documentation specified in subdivision (a)(2),” which includes the HIPAA compliant medical authorization. (Tenn. Code Ann. § 29-26-121(b)). Defendants argued that “the requirement to provide copies of the medical authorizations is mandatory because the Legislature used the commanding word ‘shall.’” The Court ruled, though, that while compliance with subsection (a)(1) of the relevant statute which requires pre-suit notice be sent is mandatory, “in the absence of prejudice to the opposing party, substantial compliance with other requirements in the statute is enough to avoid dismissal of the complaint.” (internal citation omitted). The specific requirement here, that a plaintiff attach a copy of the medical authorization to the complaint, “serves to confirm the content of the document that was given to the potential defendants.” In this case, though, “the content of the medical authorizations [was] undisputed.”

Applying these concepts to the facts at hand, the Court reasoned:

Consistent with our supreme court precedent, we conclude that the documentation requirement of Tennessee Code Annotated § 29-26-121(b) is not mandatory, and substantial compliance is sufficient. …[Plaintiff] timely provided HIPAA-compliant medical authorizations to Defendants with her pre-suit notice, her notice was served in accordance with the statute, and the late-filed exhibits were true and correct copies of the authorizations. Thus, strict compliance with the documentation requirement is not essential to avoid prejudice to the Defendants. The record in this case supports the trial court’s finding that [plaintiff] substantially complied with the documentation requirement. …[She] satisfied all the statutory requirements except for filing copies of the medical authorizations, and she rectified her mistake at an early stage. Defendants suffered no prejudice from the filing delay because they received the authorizations with the pre-suit notice. Allowing [plaintiff] to proceed under these circumstances promotes the judicial goal of disposing of a case on its merits.

(internal citations omitted).

Having ruled that plaintiff substantially complied and that substantial compliance was all that was required in ordinary cases, the Court then moved on to consider whether the fact that defendant was a governmental entity meant that strict compliance should be required here. The Court acknowledged that “statutes waiving governmental immunity” should be strictly construed, and that “this rule of construction [is] expressly incorporated into the GTLA.” (internal citation and quotation omitted). The Court found, though, that “allowing substantial compliance with the documentation requirement under the circumstances presented here does not conflict with our duty to strictly construe the GTLA.” The Court explained:

Even though we strictly construe the immunity waiver in the GTLA, when faced with express legislative intent to apply the procedural requirements of another statute to governmental entities, we must give effect to the legislative intent. … Our courts have uniformly held that by including governmental entities within the definitions of ‘health care liability action’ and ‘health care provider,’ the Legislature clearly expressed its intent for the procedural requirements and the corresponding benefits of the Act to apply to claims against governmental entities. Contrary to [defendant’s] position, we find no indication in the Act that the Legislature intended for courts to apply its provisions differently based on whether the health care provider was a governmental entity or not. The inclusion of governmental entities in the Act definitions supports the proposition that governmental health care providers are to be treated the same as non-governmental ones.

(internal citations and quotations omitted). Accordingly, the Court held that “the Act should be applied uniformly to all health care providers even when the defendant is a governmental entity,” and dismissal was reversed.

This was a good opinion, with the Court reaching the correct result. Nothing in the HCLA suggests that governmental entity defendants should be treated differently, and the Court was right to hold that the HCLA requirements are the same even in the case of government defendants.