By Daniel Horwitz:
In February of 2012, the Juvenile Court of Sumner County awarded temporary custody of “M.L.” – a minor child – to her great aunt and uncle. However, the Court’s custody order also provided that M.L.’s biological parents – Adam and Ashley Ellithorpe – were permitted to participate in any counseling that she received. After the Ellithorpes discovered that M.L. had received counseling for approximately two years without their knowledge, however, they sued M.L.’s counselor – Ms. Janet Weismark – for negligence. According to M.L.’s parents, Ms. Weismark – a licensed clinical social worker – acted recklessly and caused their daughter substantial harm by providing her counseling services without first obtaining their consent to do so.
After receiving the Ellithorpes’ complaint, Ms. Weismark asked the court to dismiss it on the basis that the Ellithorpes had failed to comply with the pre-suit notice requirements of the Tennessee Health Care Liability Act (the “HCLA”). In Tennessee, people who want to file lawsuits involving the provision of health care services are first required to comply with a variety of procedural requirements that are unique to health care claims. Given that the HCLA’s pre-suit notice requirements serve as a minefield to unwary litigants and frequently result in otherwise-valid claims being dismissed on technical procedural grounds, the author has previously characterized these requirements as “red tape with fangs.” See Daniel A. Horwitz, The Law of Unintended Consequences: Avoiding the Health Care Liability Act Booby Trap, Nashville Bar Journal (June 2015) (feature article), available at http://issuu.com/nbanikki/docs/nbjjune15/17.
Chief among the HCLA’s pre-suit notice requirements is a rule that “[i]n any health care liability action in which expert testimony is required by § 29-26-115, the plaintiff or plaintiff’s counsel shall file a certificate of good faith with the complaint.” This rule requires a plaintiff to certify that before filing the lawsuit, the plaintiff consulted at least one medical expert who concluded that there was a good faith basis to pursue the claim. Tennessee law also provides that a plaintiff’s failure to comply with this requirement results in his or her complaint being dismissed with prejudice, which means that the lawsuit is over and it can never be brought again.
Continue reading All claims related to the provision of health care are now governed by the Health Care Liability Act, holds Tennessee Supreme Court.
By Daniel A. Horwitz
In yet another round of litigation concerning Tennessee’s medical malpractice statute (known as the Health Care Liability Act, or the HCLA), the Tennessee Supreme Court has held that litigants may use commercial carriers like FedEx to deliver pre-suit notice letters. This holding is significant because the HCLA specifically provides that pre-suit notice letters must be delivered by “the United States postal service.” Thus, by excusing a plaintiff’s technical non-compliance with the HCLA’s service requirement, the Court’s decision in Arden v. Kozawa represents a further extension of the “substantial compliance doctrine,” which this author has previously described as “the rule that ‘close is close enough.’” Furthermore, Arden represents yet another iteration of the Court’s view that “[s]o long as a health care defendant is not prejudiced” by a plaintiff’s procedural errors, “substantial compliance with . . . statutory requirements will suffice.”
The underlying law in Arden was not in dispute. Before filing a medical malpractice claim, Tennessee law “require[s] medical malpractice plaintiffs to satisfy six pre-suit ‘notice requirements[.]’” Those requirements include, for example, providing a medical malpractice defendant (usually a doctor or a hospital): (1) “[t]he full name and date of birth of the patient whose treatment is at issue;” (2) “[t]he name and address of the attorney sending the notice, if applicable;” and (3) “[a] HIPAA compliant medical authorization permitting the provider receiving the notice to obtain complete medical records from each other provider being sent a notice.” Of note, the HCLA also states that plaintiffs must demonstrate that pre-suit notice was actually provided to defendants through either “[p]ersonal delivery of the notice” or “[m]ailing of the notice.”
If a plaintiff chooses to mail the notice, rather than hand-delivering it (something that avoids a great deal of angst, as nobody—doctors included—enjoys being personally served with notice of an impending lawsuit), then the HCLA states that proof of mailing: “shall be demonstrated by filing a certificate of mailing from the United States postal service[.]” In Arden, the plaintiff’s attorney admitted that Continue reading FedEx can deliver HCLA pre-suit notice letters, too, holds Tennessee Supreme Court
[Note: This entry was published as the feature article of the Nashville Bar Journal’s June 2015 edition. Interested readers should cite it as: Daniel A. Horwitz, The Law of Unintended Consequences: Avoiding the Health Care Liability Act Booby Trap, Nashville Bar Journal (June 2015), available at http://scotblog.org/2015/06/tennessee-supreme-court-should-correct-lower-courts-erroneous-interpretations-of-its-decision-in-stevens-restore-sanity-to-health-care-liability-cases/.]
The Law of Unintended Consequences: Avoiding the Health Care Liability Act Booby Trap
By Daniel A. Horwitz
In 2009, interest groups representing both healthcare providers and injured patients worked together “to draft and pass” several amendments to Tennessee’s medical malpractice statute that aimed to improve medical malpractice litigation for all involved. According to the Tennessee Supreme Court, the goals of the 2009 amendments were “to give defendants written notice that a potential healthcare liability claim may be forthcoming,” to “facilitate early resolution of healthcare liability claims,” and to “equip defendants with the actual means to evaluate the substantive merits of a plaintiff’s claim by enabling early discovery of potential co-defendants and early access to a plaintiff’s medical records.” To accomplish these goals, the legislature required medical malpractice plaintiffs to satisfy six pre-suit “notice requirements,” and it further required plaintiffs to file a “certificate of good faith” with their complaints in cases in which expert testimony would eventually be required.
Due to the myriad technical dismissals that resulted from these reforms, however, the 2009 amendments unexpectedly turned out to be red tape with fangs for medical malpractice plaintiffs. For example, since the 2009 amendments were enacted, many plaintiffs have seen otherwise valid medical malpractice claims—now referred to as “health care liability actions”—barred forever due to their failure to file the requisite “certificate of good faith” at the proper time. More still have fallen prey to one or more of the pre-suit notice requirements created by the 2009 amendments, resulting in any number of Health Care Liability Act (“HCLA”) complaints being dismissed due to seemingly hyper-technical errors, such as sending a letter to a defendant via FedEx rather than USPS. Thus, what began as a laudable effort to improve medical malpractice litigation in Tennessee has instead created new procedural barriers that cause many cases to be dismissed on grounds that are completely unrelated to the merits of a plaintiff’s claim. Continue reading Tennessee Supreme Court Should Correct Lower Courts’ Erroneous Interpretation of its Decision in Stevens v. Hickman, Restore Sanity to Health Care Liability Act Cases
By Daniel A. Horwitz
Under Tennessee law, a doctor who operates on a patient generally faces liability for three potential claims if something goes wrong:
- Medical battery, which means that the doctor performed a procedure that the patient did not authorize;
- Medical malpractice – traditionally known as “negligence” or “medical negligence,” and now referred to as “health care liability” under Tennessee law – which means that the doctor’s performance fell below the recognized standard of acceptable professional practice in the doctor’s community; and
- Lack of informed consent, which means that the doctor failed to provide sufficient information to the patient to allow him or her to evaluate the risks of the procedure that was performed.
In Ike J. White, III v. David A. Beeks, M.D., the Tennessee Supreme Court addressed Continue reading Doctors must prospectively disclose all significant medical risks to their patients—not just those risks that ultimately cause harm, holds Tennessee Supreme Court.
By Daniel A. Horwitz
Is zero a number? The age-old question has frequently engendered debate among mathematicians, logicians and philosophers. When it comes to disclosing past violations of the “certificate of good faith” requirement of Tennessee’s Health Care Liability Act, however, the Tennessee Supreme Court has officially spoken: No, zero is not a number, and if a person has never previously violated Tenn. Code Ann. § 29-26-122, then the person has nothing to disclose.
Under Tennessee law, litigants who file claims for medical malpractice – now known as “health care liability actions” – are generally required to file a “certificate of good faith” with their complaint. See Tenn. Code Ann. § 29-26-122(a) (“In any health care liability action in which expert testimony is required by § 29-26-115, the plaintiff or plaintiff’s counsel shall file a certificate of good faith with the complaint.”). The primary purpose of the certificate of good faith requirement is to prevent people from filing frivolous lawsuits against doctors and health care providers. As a result, anyone who wants to sue a doctor or a health care provider under the Health Care Liability Act is required to Continue reading Zero Is Not a Number For Purposes of Tennessee’s Health Care Liability Act, Says Tennessee Supreme Court