In its opinion filed on August 8, 2017, the Court of Appeals of Tennessee at Nashville (“Tennessee Appellate Court”) affirmed that substantial compliance with the documentation requirement in Tennessee Code Annotated § 29-26-121(b) is sufficient even when the defendant is a governmental entity.
The Tennessee Appellate Court addressed the dismissal of a health care liability action (i.e., medical malpractice lawsuit) for noncompliance with the Health Care Liability Act, specifically Tennessee Code Annotated § 29-26-121 (Supp. 2016). Before the plaintiff filed her Tennessee medical malpractice lawsuit, she gave timely written pre-suit notice of her health care liability claim, including the required medical authorizations, to all potential defendants. But when she filed her medical malpractice complaint, the plaintiff failed to provide copies of the medical authorizations as required by statute.
Both of the Tennessee medical malpractice defendants filed motions to dismiss based on the missing documents. The trial court determined that the plaintiff had substantially complied with the statute and that the defendants were not prejudiced by the omission. Nonetheless, the trial court dismissed the Tennessee medical malpractice complaint with prejudice after concluding that strict compliance with the statute was required when the defendant was a governmental entity.
Tennessee Code Annotated § 29-26-121(a)(1)
Tennessee Code Annotated § 29-26-121(a)(1)provides: “[a]ny person, or that person’s authorized agent, asserting a potential claim for health care liability 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 health care liability in any court of this state.”
Tennessee Code Annotated § 29-26-121(a)(2)
In addition to the HIPPA compliant medical authorization, the pre-suit notice must include the following: (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 . . . Tenn. Code Ann. § 29-26-121(a)(2).
Tennessee Code Annotated § 29-26-121(b)
Tennessee Code Annotated § 29-26-121(b) provides as follows: “[T]he 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.”
The Tennessee Appellate Court stated that it was solely concerned with the documentation requirement in subsection (b). The Tennessee Appellate Court concluded that the documentation requirement of Tennessee Code Annotated § 29-26-121(b) is not mandatory, and that substantial compliance is sufficient. The plaintiff timely provided HIPAA-compliant medical authorizations to the 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 Tennessee Appellate Court stated that the plaintiff satisfied all the statutory requirements except for filing copies of the medical authorizations, and she rectified her mistake at an early stage. The defendants suffered no prejudice from the filing delay because they received the authorizations with the pre-suit notice. The Tennessee Appellate Court held that allowing the plaintiff to proceed under these circumstances promotes the judicial goal of disposing of a case on its merits.
The Tennessee Appellate Court next addressed the issue whether strict compliance with Tennessee Code Annotated § 29-26-121 is required because one of the defendants is a governmental entity. The Tennessee Appellate Court stated that allowing substantial compliance with the documentation requirement under the circumstances presented in this case does not conflict with its duty to strictly construe the Tennessee Governmental Tort Liability Act (“GTLA”), which reaffirmed and extended the doctrine of sovereign immunity for counties, municipalities, and other local governmental agencies and then waived immunity for injuries arising from specified circumstances: a health care liability action against a governmental entity falls within the waiver of governmental immunity in the GTLA.
The Tennessee Appellate Court stated that it was required to construe statutes waiving governmental immunity strictly because they are in derogation of the common law, and this rule of construction has been expressly incorporated into the GTLA. Nonetheless, the Tennessee Appellate Court stated that allowing substantial compliance with the documentation requirement under the circumstances presented in the present case does not conflict with its duty to strictly construe the GTLA: even though the Tennessee Appellate Court must 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, it must give effect to the legislative intent and strict construction should never be used to defeat the obvious intention of the legislature.
The Tennessee Appellate Court stated that Tennessee courts have uniformly held that by including governmental entities within the definitions of “health care liability action” and “health care provider,” the Tennessee Legislature clearly expressed its intent for the procedural requirements and the corresponding benefits of the Act to apply to claims against governmental entities. The Tennessee Appellate Court found 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’s definitions supports the proposition that governmental health care providers are to be treated the same as nongovernmental ones. The Tennessee Appellate Court therefore held that the Act should be applied uniformly to all health care providers even when the defendant is a governmental entity.
Source Clary v. Miller, No. M2016-00794-COA-R3-CV
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