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§47.32H Pre-Suit Notice Requirement - Noncompliance Excused for Extraordinary Cause

The Case: Stevens ex re. Stevens v. Hickman Comm. Health Care Services, Inc., 418 S.W.3d 547 (Tenn. 2013).

The Basic Facts: HIPAA authorization provided to healthcare providers did not substantially comply with the statutory requirements, and no extraordinary cause was shown to excuse noncompliance.

The Bottom Line:

 

·    “We now address the grounds relied on by the trial court that Plaintiff’s failure to comply with Tenn. Code. Ann. § 29-26-121(a)(2)(E) constituted extraordinary cause. The first of these grounds is that Mr. Stevens – the alleged victim of Defendants’ professional negligence – died before Plaintiff’s lawsuit was filed. Although Mr. Stevens’ death might have been unexpected, his death does not constitute extraordinary cause. While Mr. Stevens obviously could not sign the HIPAA medical authorization after his own death, the death of a decedent will necessarily be involved in every wrongful death claim, and his personal representative could easily have complied with this requirement in his stead. See Tenn. Code. Ann. § 63-2-101(b)(3) (2010) (‘If the patient becomes incapacitated or dies, and there is no legal representative for the patient, the patient’s next of kin will be considered to be an authorized representative for the patient.’); 45 C.F.R. § 164.502(g)(4) (‘If under applicable law an executor, administrator, or other person has authority to act on behalf of a deceased individual or of the individual’s estate, a covered entity must treat such person as a personal representative under this subchapter.’). Because Mr. Stevens’ death did not prevent his personal representative from complying with the pre-suit notice requirements of Tenn. Code. Ann. § 29-26-121(a)(2)(E), Mr. Stevens’ death did not constitute the extraordinary cause necessary to excuse Plaintiff’s failure to comply.” 418 S.W.3d at 559.

 

·     “The second and third factors cited by the trial court were that Defendants received actual notice of the lawsuit, and that Plaintiff complied with Tenn. Code. Ann. § 29-26-122’s requirement that she file a certificate of good faith. Although Plaintiff gave Defendants actual notice of her claim and also filed a certificate of good faith as required by Tenn. Code. Ann. § 29-26-122, these facts do not excuse Plaintiff’s failure to comply with the requirements of Tenn. Code. Ann. § 29-26-121(a)(2)(E). As we explained previously, in contrast to the requirements of § 29-26-121(a)(1), the purpose of § 29-26-121(a)(2)(E) is not to provide actual notice to defendants. We also cannot render Tenn. Code. Ann. § 29-26-121(a)(2)(E) superfluous by excusing performance whenever a certificate of good faith is filed in accordance with Tenn. Code. Ann. § 29-26-122. Accordingly, Plaintiff’s failure to provide Defendants with the HIPAA compliant medical authorization required by Tenn. Code. Ann. § 29-26-121(a)(2)(E) cannot be excused by Plaintiff’s acts of furnishing Defendants with notice of a potential claim or filing a certificate of good faith.” Id.

 

·        “Lastly, Plaintiff argues that her failure to comply with Tenn. Code. Ann. § 29-26-121(a)(2)(E) should be excused because Defendants did not inform her that her medical authorization was deficient before filing a motion to dismiss. Plaintiff cites no authority to support this proposition, and we have found none. Plaintiff – not Defendants – was responsible for complying with the requirements of Tenn. Code. Ann. § 29-26-121(a)(2)(E).” Id.

Recent Cases:  Hawkins v. Martin, No. W2011-02318-COA-R3-CV, 2012 WL 3007680 (Tenn. Ct. App. July 24, 2012) (when considering whether to excuse compliance with pre-suit notice requirements for extraordinary cause, trial courts should consider the totality of the circumstances and should excuse compliance “for attorney oversight caused by unique and extraordinary circumstances”).

 

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The foregoing is an excerpt from Day on Torts: Leading Cases in Tennessee Tort Law, published by John A. Day, Civil Trial Specialist, Fellow in the American College of Trial Lawyers, recipient of Best Lawyers in America recognition, Martindale-Hubbell AV® Preeminent™ rated attorney, and Top 100 Tennessee Mid-South Super Lawyers designee. Read John’s full bio here.

To order a copy of the book, visit www.dayontortsbook.com. John also blogs regularly on key issues for tort lawyers. To subscribe to the Day on Torts blog, visit www.dayontorts.com.

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