On April 17, 2013, the Court of Appeals of Tennessee turned down a constitutional challenge and upheld Tennessee Code Annotated Section 29-26-121, which requires a medical malpractice claimant to provide notice sixty days prior to filing suit, holding that section 29-26-121 is not an unconstitutional infringement upon the courts’ rule-making authority, that it is not preempted by HIPAA, and that it does not violate the equal protection and due process provisions of state and federal law.
Section 29-26-121 states in relevant part:
(a)(1) Any person, or that person’s authorized agent, asserting a potential claim for medical malpractice shall give written notice of the potential claim to each health care provider that will be a named defendant at least sixty (60) days before the filing of a complaint based upon medical malpractice in any court of this state.
(2) The notice shall include:
(A) The full name and date of birth of the patient whose treatment is at issue;
(B) The name and address of the claimant authorizing the notice and the relationship to the patient, if the notice is not sent by the patient;
(C) The name and address of the attorney sending the notice, if applicable;
(D) A list of the name and address of all providers being sent a notice; and
(E) A HIPAA compliant medical authorization permitting the provider receiving the notice to obtain complete medical records from each other provider being sent a notice.
(3) The requirement of service of written notice prior to suit is deemed satisfied if, within the statutes of limitations and statutes of repose applicable to the provider, one of the following occurs, as established by the specified proof of service, which shall be filed with the complaint:
(A) Personal delivery of the notice to the health care provider or an identified individual whose job function includes receptionist for deliveries to the provider or for arrival of the provider’s patients at the provider’s current practice location. Delivery must be established by an affidavit stating that the notice was personally delivered and the identity of the individual to whom the notice was delivered; or
(B) Mailing of the notice:
(i) To an individual health care provider at both the address listed for the provider on the Tennessee department of health web site and the provider’s current business address, if different from the address maintained by the Tennessee department of health; provided, that, if the mailings are returned undelivered from both addresses, then, within five (5) business days after receipt of the second undelivered letter, the notice shall be mailed in the specified manner to the provider’s office or business address at the location where the provider last provided a medical service to the patient; or
(ii) To a health care provider that is a corporation or other business entity at both the address for the agent for service of process, and the provider’s current business address, if different from that of the agent for service of process; provided, that, if the mailings are returned undelivered from both addresses, then, within five (5) business days after receipt of the second undelivered letter, the notice shall be mailed in the specified manner to the provider’s office or business address at the location where the provider last provided a medical service to the patient.
(4) Compliance with subdivision (a)(3)(B) shall be demonstrated by filing a certificate of mailing from the United States postal service stamped with the date of mailing and an affidavit of the party mailing the notice establishing that the specified notice was timely mailed by certified mail, return receipt requested. A copy of the notice sent shall be attached to the affidavit. It is not necessary that the addressee of the notice sign or return the return receipt card that accompanies a letter sent by certified mail for service to be effective.
(b) If a complaint is filed in any court alleging a claim for health care liability, the pleadings shall state whether each party has complied with subsection (a) and shall provide the documentation specified in subdivision (a)(2). The court may require additional evidence of compliance to determine if the provisions of this section have been met. The court has discretion to excuse compliance with this section only for extraordinary cause shown.
(c) When notice is given to a provider as provided in this section, the applicable statutes of limitations and repose shall be extended for a period of one hundred twenty (120) days from the date of expiration of the statute of limitations and statute of repose applicable to that provider. . . .
(d)(1) All parties in an action covered by this section shall be entitled to obtain complete copies of the claimant’s medical records from any other provider receiving notice. A party shall provide a copy of the specified portions of the claimant’s medical records as of the date of the receipt of a legally authorized written request for the records within thirty (30) days thereafter. The claimant complies with this requirement by providing the providers with the authorized HIPAA compliant medical authorization required to accompany the notice.
The provider may comply with this section by:
(A) Mailing a copy of the requested portions of the records with a statement for the cost of duplication of the records to the individual requesting the records;
(B) Informing the individual requesting the records that the records will be mailed only upon advance payment for the records for the stated cost of the records, calculated as provided in § 63-2-102. Any request for advance payment must be made in writing twenty (20) days after the receipt of the request for medical records. The provider must send the records within three (3) business days after receipt of payment for the records; or
(C) Fulfilling such other method that the provider and the individual requesting the records agree to in writing.
(2) The records received by the parties shall be treated as confidential, to be used only by the parties, their counsel, and their consultants.
In upholding the constitutionality of Section 29-26-121, the Court of Appeals of Tennessee’s opinion cited one of it prior cases in which it stated, “the purpose of section 29-26-121 is “‘to give the defendant the opportunity to investigate and perhaps even settle the case before it is actually filed. At a minimum, it will give the defendant the opportunity to gather information before suit is filed and should eliminate the need for extensions of time to answer the complaint or slow-walk discovery.’” The Court of Appeals of Tennessee further noted “the statutory presuit notice requirements are easily met and they work to promote both early evaluation and streamlined disclosure of medical records in order to facilitate the statutory goals of information gathering and litigation expediency.”
With regard to the medical malpractice plaintiffs’ argument that Section 29-26-121 allows for the release of protected health information without either a court order or the patient’s consent, in violation of HIPAA, the Court of Appeals of Tennessee stated, “section 29-26-121 allows for the release of protected health information without either a court order or the patient’s consent, in violation of HIPAA. By pursuing a malpractice claim, the plaintiff consents to the disclosure of relevant medical information …. section 29-26-121 specifically demands that the claimant’s authorization to release medical records be “HIPAA complaint[,]” it limits the discoverable medical records to those held by providers sent notice by the claimant, and it requires the records be treated as confidential and be used only by the parties, their counsel, and their consultants.”
With regard to the medical malpractice plaintiffs’ argument that Section 29-26-12 violates Equal Protection, the Court of Appeals of Tennessee stated, “Simply put, we find that the legislature could conceive of a relationship between section 29-26-121’s pre-suit notice requirements and its legislative objectives of preventing protracted litigation through early investigation, and possibly, facilitating early resolution through settlement …. These objectives are of particular importance in the context of medical malpractice claims where, as discussed above, increased malpractice insurance costs threaten both health care affordability and accessibility. In sum, because the classification rests upon a reasonable basis, we reject Plaintiffs’ claim that section 29-26-121 violates the equal protection provisions of the Tennessee and United States constitutions.”
With regard to the medical malpractice plaintiffs’ argument that Section 29-26-12 violates Due Process, the Court of Appeals of Tennessee stated, “we reject Plaintiffs’ contention that section 29-26-121 deprives them of their property without due process of law. As explained above, section 29-26-121 simply requires a medical malpractice plaintiff, within the standard statute of limitations, to provide minimal, easily-accessible information to health care providers who will be named as defendants, and several clearly-explained delivery methods for this information are available …. Section 29-26-121 simply does not deprive Plaintiffs of a meaningful opportunity to pursue their medical malpractice claim so as to violate procedural due process …. section 29-26-121’s pre-suit notice requirements bear a reasonable relation to the proper legislative objectives of preventing protracted litigation through early investigation, and possibly, facilitating early resolution through settlement …. Despite Plaintiffs’ argument that such objectives are applicable to all tort cases and therefore may not provide grounds for differential treatment within the medical malpractice context, we find that these objectives are of particular importance in the medical malpractice arena as, again, increased malpractice insurance costs threaten both health care affordability and accessibility …. Accordingly, we conclude that section 29-26-121 passes substantive due process muster as it is reasonably related to proper legislative purposes and it is neither arbitrary nor discriminatory.”
If you or a loved one may have been injured due to medical malpractice in Tennessee, you or your loved one should promptly contact a Tennessee medical malpractice attorney who may agree to represent you or your loved one in a Tennessee medical malpractice claim.
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