Tennessee Supreme Court Should Correct Lower Courts’ Erroneous Interpretation of its Decision in Stevens v. Hickman, Restore Sanity to Health Care Liability Act Cases

[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 https://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.[1]  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.”[2]  To accomplish these goals, the legislature required medical malpractice plaintiffs to satisfy six pre-suit “notice requirements,”[3] 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.[4]

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”[5]—barred forever due to their failure to file the requisite “certificate of good faith” at the proper time.[6]  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[7] (“HCLA”) complaints being dismissed due to seemingly hyper-technical errors, such as sending a letter to a defendant via FedEx rather than USPS.[8]  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.   

In an effort to mitigate the harshness of this reality, the Tennessee Supreme Court has consistently held that dismissals brought about by a plaintiff’s failure to comply with the HCLA’s pre-trial notice requirements generally must be without prejudice.[9]  Thus, at least in theory, a plaintiff need only fix his mistake and then re-file his complaint in order to get his day in court—serving to delay a plaintiff’s potential recovery, but not altogether denying it.

What has gone largely unrecognized to this point, however, is a fatal litigation trap lurking beneath the HCLA’s surface that currently functions to transform even dismissals without prejudice into permanent bars to recovery.  Specifically, based on the Tennessee Court of Appeals’ misreading of the Tennessee Supreme Court’s decision in Stevens ex rel. Stevens v. Hickman Community Health Care Services, Inc., the HCLA has been interpreted in such a way that it can be manipulated by defense practitioners to preclude recovery permanently whenever a health care liability plaintiff fails to comply with a pre-suit notice requirement.  In the author’s view, the Tennessee Supreme Court should remedy this unintended consequence by holding that a plaintiff’s substantial compliance with the pre-suit notice requirements of Tenn. Code Ann. § 29-26-121(a) as a whole is sufficient to earn the 120-day extension afforded by § 29-26-121(c).

The litigation trap at issue—explained in detail below—stems from asymmetrical knowledge as to the applicable statute of limitations in health care liability cases under circumstances when a plaintiff’s pre-trial notice letter does not substantially comply with one or more of the pre-suit notice requirements created by the 2009 amendments.  First, in order to be able to file a health care liability complaint at all, a plaintiff must comply with all six of the HCLA’s pre-suit notice requirements.[10]  After complying with these requirements, a plaintiff then earns a 120-day extension to the HCLA’s one-year statute of limitations.[11]  Thus, in every health care liability action, plaintiffs’ attorneys operate under the assumption that they have 485 days—rather than 365 days—within which to file a complaint.

The problem, however, is that if a plaintiff’s attorney has erred in complying with one or more of the HCLA’s pre-suit notice requirements, then he almost invariably will not discover his error until the initial one-year statute of limitations has expired.[12]  The reason for this is simple: defense attorneys do not typically make a habit of alerting plaintiffs when they have erred (nor should they),[13] and if a plaintiff’s attorney were going to fastidiously examine his pre-trial notice letter for technical errors, then it seems safe to assume that he would have done so before sending it, rather than afterward.  As a result, plaintiffs who mistakenly fail to comply with one or more of the HCLA’s pre-suit notice requirements will almost always be operating under the erroneous belief that the statute of limitations has been extended by 120 days, when in fact it has not.[14]  In contrast, however, any defense attorney who notices that a plaintiff’s pre-suit notice letter is non-compliant will be aware that the plaintiff actually has not earned the HCLA’s 120-day extension of the statute of limitations, and that the one-year statute of limitations still remains in effect.

Under such circumstances, in order to transform a dismissal without prejudice into one that “effectively operate[s] as a dismissal with prejudice because [the p]laintiff’s claim would be time-barred,”[15] defense practitioners need only pretend to go through the motions of discovery, engage in mock settlement negotiations, or otherwise delay calling attention to a plaintiff’s pre-suit notice error until the plaintiff’s one-year filing deadline has elapsed.  Thereafter, any subsequent dismissal—even a dismissal without prejudice—will function as a dismissal with prejudice because any re-filed complaint will necessarily fall beyond the applicable statute of limitations.[16]  Several published cases provide examples of such tactics being utilized in practice by defense attorneys in an effort to manufacture effective dismissals with prejudice.[17]  As one panel of the Court of Appeals has declaimed, however: “allowing a defendant to participate in discovery and negotiations while waiting to raise technical objections is not consistent with the purposes of the statutory requirements for filing medical malpractice lawsuits.”[18]

To illustrate how the situation described above might play out in practice, consider the following hypothetical scenario: A plaintiff suffers a serious injury as a result of a hospital’s grossly negligent medical treatment on January 1, 2015.  On September 1, 2015, the plaintiff’s attorney attempts to comply with the HCLA’s six pre-suit notice requirements by sending the hospital a detailed letter providing notice of the plaintiff’s potential claim.  Upon sending this letter, the plaintiff’s attorney believes that his client’s one-year filing deadline has been extended by 120 days, and that the statute of limitations will now expire on May 1, 2016.  After receiving the plaintiff’s pre-suit notice letter, however, the hospital realizes that it is technically deficient because the HIPAA authorization form included within it does not contain a written description of the attorney’s authority to act on the plaintiff’s behalf.[19]

If the applicable statute of limitations is not extended by 120 days under these unexceptional circumstances, then there is a strong chance that the plaintiff’s otherwise-meritorious lawsuit will become time-barred before the plaintiff’s attorney becomes aware of his mistake.  Specifically, because the plaintiff’s attorney will be operating under the erroneous impression that he has until May 1, 2016—rather than January 1, 2016—to file his client’s complaint, he will not recognize the urgency of his need to file, and the applicable one-year statute of limitations will very likely expire before he does so.  Consequently, under these circumstances, the hospital’s interest will not be to ask the plaintiff’s attorney to fix his mistake by furnishing a HIPAA-compliant authorization form.  Instead, the hospital’s interest will be to provide preliminary discovery, to drag out mock settlement negotiations, or to engage in some other form of deliberate delay in the hopes that the plaintiff’s attorney will not discover his error in time to fix it.  Moreover, because the plaintiff’s attorney usually will not become aware of his error until the defendant points it out in a motion to dismiss, the hospital’s tactics will probably succeed—resulting in the plaintiff’s eventual complaint being dismissed without prejudice, yet time-barred upon re-filing.

Notably, a version of this scenario actually took place in Stevens itself.  In that case, a health care liability defendant ignored a plaintiff’s obviously non-compliant HIPAA authorization form for more than seven months after receiving it.[20]  Thereafter, however—and, of course, only after the plaintiff’s one-year statute of limitations had expired—the defendant emerged to insist that the plaintiff’s complaint must be dismissed because her medical authorization form was not HIPAA-compliant.[21]

Given that the Stevens plaintiff had indeed failed to furnish a HIPAA-compliant authorization form, the defendant ultimately succeeded in having her complaint dismissed without prejudice.[22]  Whether the plaintiff’s complaint would be time-barred upon re-filing, however, was expressly left open by the Stevens Court.  Specifically, the court noted:

[The] Defendant argues that even if [the] Plaintiff’s claim is dismissed without prejudice, dismissing [the] Plaintiff’s claim in this case would effectively operate as a dismissal with prejudice because [the] Plaintiff’s claim would be time-barred.  The trial court did not reach this issue and, accordingly, we decline to address it.[23]

Since the end of 2013, four separate courts—including three panels of the Tennessee Court of Appeals—have considered the question left open by Stevens, and each has assumed that Stevens stands for the proposition that virtually any claim that is dismissed without prejudice for lack of effective pre-suit notice will be time-barred upon re-filing.[24]  Although it is certainly possible that the Tennessee Supreme Court will ultimately adopt that viewpoint, however, it should not and need not do so.  Instead, the Court should apply the substantial compliance doctrine—in layman’s terms, the rule that “close is close enough”—to the HCLA’s 120-day extension provision in precisely the same way that the Court has applied the substantial compliance doctrine to the HCLA’s individual pre-suit notice requirements.[25]  Specifically, the Court should hold that a plaintiff’s substantial compliance with the HCLA’s pre-suit notice requirements as a whole is sufficient to earn the 120-day extension afforded by § 29-26-121(c), even if a plaintiff did not succeed in complying with each notice requirement individually.  For example, in cases like Stevens and the hypothetical scenario presented above—where a plaintiff has successfully complied with all but one of the HCLA’s pre-suit notice requirements—the Tennessee Supreme Court should hold that plaintiffs have substantially complied with the HCLA’s notice requirements “as provided in this section,”[26] and the one-year statute of limitations for filing health care liability actions should be extended by 120 days accordingly.

The immediate result of such a holding would be twofold.  First, it would preclude the argument that a plaintiff’s complaint is automatically time-barred upon re-filing if it is filed after the initial one-year statute of limitations has elapsed.  Second, it would allow plaintiffs who discover their technical notice errors upon receipt of a defendant’s motion to dismiss to voluntarily dismiss their initial complaints without prejudice, and then to re-file under the protection of Tennessee’s saving statute and Tenn. R. Civ. P. 41.01.[27]  Taken together, these results would helpfully further Tennessee’s strong public policy of disposing of litigation on its merits,[28] rescuing any number of otherwise valid health care liability actions from unforeseen dismissals with prejudice in the process.

Most importantly, however, three separate reasons support the conclusion that the author’s suggested reading of Stevens—rather than the holding that has been adopted by the Tennessee Court of Appeals—is precisely what the legislature intended when it enacted the 2009 amendments.

First, the Court of Appeals’ current interpretation of the question left open in Stevens runs contrary to an express assumption made by several sponsors of the 2009 amendments during committee discussions about the bill’s likely effect in practice.  Specifically, sponsors in both chambers of the General Assembly quite clearly believed that as a result of the 2009 amendments, both plaintiffs and defendants would be aware of the precise date when the statute of limitations would expire in health care liability cases.[29]  Given the information asymmetry that has been created by the Court of Appeals’ interpretation of Stevens, however, the Court of Appeals has completely undermined that assumption in many cases.

Second, if the Tennessee Supreme Court were to accept the Court of Appeals’ current interpretation of the question that it left open in Stevens, in many instances the HCLA would not serve to “encourag[e] the evaluation of the merits of a claim before the commencement of litigation and facilitat[e] early settlement,” as its authors intended.[30]  Instead, it would function to undermine dialogue between litigants by creating perverse litigation incentives that facilitate only mock settlement negotiations and delusive discovery.  This result, too, would seriously undermine the purposes that the 2009 amendments were meant to accomplish.[31]

Third, taken together, the overarching 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.”[32]  In contrast, there is no indication whatsoever from Tenn. Code Ann. § 29-26-121’s text, purpose, or legislative history that the 2009 amendments were intended to create the fatal booby trap for unwary plaintiffs that they have recently become.[33]  Indeed, to the contrary, Tennessee law reflects a longstanding, consistent public policy that favors resolving litigation on its merits, rather than promoting dismissals based on purely procedural grounds.[34]  Thus, in light of multiple legislators’ express indication that the above-described litigation trap was neither intended nor anticipated by the authors of the 2009 amendments,[35] the Court of Appeals’ current interpretation of Stevens is not even tenable—much less statutorily compelled.

In conclusion, it is worth remembering that the use of technical procedural hurdles to prevent otherwise valid claims from being adjudicated on their merits is a relic of our past that has long since been retired.[36]  As Roscoe Pound, the preeminent former Dean of Harvard Law School, decried to the American Bar Association in 1906 about the “sporting theory of justice” in vogue at that time:

The inquiry is not, [w]hat do substantive law and justice require?  Instead, the inquiry is, [h]ave the rules of the game been carried out strictly?  If any material infraction is discovered . . . our sporting theory of justice awards new trials, or reverses judgments, or sustains demurrers in the interest of regular play.[37]

The legal system has evolved from these 19th and early 20th century notions of procedural justice, and it now reflects the broader understanding that “dismissals based on procedural grounds . . . run counter to the judicial system’s general objective of disposing of cases on the merits.”[38]   Given this reality, the Tennessee Supreme Court should take note of the fact that procedural pitfalls like the one that has been created by the Court of Appeals undermine the fundamental purpose of the civil justice system as an institution.  Consequently, the Tennessee Supreme Court should remedy this unintended consequence by holding that a plaintiff’s substantial compliance with the pre-suit notice requirements of Tenn. Code Ann. § 29-26-121(a) as a whole is sufficient to earn the 120-day extension afforded by § 29-26-121(c), saving myriad plaintiffs from having their claims barred forever as a result of their attorneys’ purely technical and non-prejudicial procedural mistakes.

Questions about this article?  Email Daniel Horwitz at daniel.a.horwitz@gmail.com.

Like ScotBlog?  Join our email list or contact us here, or follow along on Twitter @Scot_Blog and facebook at https://www.facebook.com/scotblog.org

[1] John A. Day, Med Mal Makeover 2009 Act Improves on ′08: The New New Medical Malpractice Notice and Certificate of Good Faith Statutes, 45 Tenn. B.J. 7, 16 (2009), available at http://www.tba.org/sites/default/files/journal_archives/2009/TBJ0709.pdf.

[2] Stevens ex rel. Stevens v. Hickman Cmty. Health Care Servs., Inc., 418 S.W.3d 547, 554 (Tenn. 2013).

[3] See Tenn. Code Ann. § 29-26-121(a)(1)-(2) (2013).  See also Stevens, 418 S.W.3d at 554 (“Tenn. Code Ann. § 29-26-121(a) establishes six separate requirements that serve related yet ultimately distinct goals.”).

[4] See Tenn. Code Ann. § 29-26-122(a) (2012) (“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.”).

[5] See Hamilton v. Abercrombie Radiological Consultants, Inc., No. E2014-00433-COA-R3-CV, 2014 WL 7117802, at *1 n.1 (Tenn. Ct. App. Dec. 15, 2014) (“[E]ffective April 23, 2012, the Tennessee General Assembly passed legislation replacing the term ‘medical malpractice’ with ‘health care liability’ in every place in the Tennessee Code.”); see also Tenn. Code Ann. § 29-26-101(a)(1) (2011) (“‘Health care liability action’  means any civil action, including claims against the state or a political subdivision thereof, alleging that a health care provider or providers have caused an injury related to the provision of, or failure to provide, health care services to a person, regardless of the theory of liability on which the action is based . . . .”).

[6] See, e.g., Goodwin v. United States, No. 2:13-CV-13445, 2014 WL 1685899, at *3 (E.D. Mich. Apr. 29, 2014) (applying Tennessee law and holding that a plaintiff’s “failure to comply with TCA § 29-26-122 requires [courts] to dismiss [the] complaint with prejudice”); Portwood v. Montgomery Cnty, Tenn., No. 3:13–CV–0186, 2013 WL 6179188, at *5 (M.D. Tenn. Nov. 25, 2013) (“If either a plaintiff or a defendant fails to comply with Section 122, the plaintiff’s complaint or the defendant’s allegations of fault against a non-party are, upon motion, subject to mandatory dismissal with prejudice.”); Myers v. AMISUB (SFH), Inc., 382 S.W.3d 300, 311 (Tenn. 2012) (holding that a plaintiff’s failure to file a certificate of good faith with a complaint  subjects the complaint to dismissal with prejudice); Sirbaugh v. Vanderbilt Univ., No. M2014-00153-COA-R9-CV, 2014 WL 7465676, at *6 (Tenn. Ct. App. Dec. 30, 2014) (“[Plaintiff] was obligated to file a statutorily compliant certificate of good faith with her amended complaint.  She violated Tennessee Code Annotated section 29–26[-]122 by failing to do so.  Therefore, dismissal of the claims against [the defendants] was mandated.”); Mathes v. Lane, No. E2013-01457-COA-R3-CV, 2014 WL 346676, at *8 (Tenn. Ct. App. Jan. 30, 2014) (citations omitted) (“[Plaintiff] offers no explanation for his failure to file the certificate of good faith other than his general assertion that the trial court should have afforded leniency in his pleadings due to his pro se and incarcerated status. . . .  [Plaintiff’s] self-represented status does not excuse him from following the procedural rules that represented parties must observe. . . .  The trial court did not err in dismissing [Plaintiff’s] complaint . . . .”); Caldwell v. Vanderbilt Univ., No. M2012-00328-COA-R3-CV, 2013 WL 655239, at *6–7 (Tenn. Ct. App. Feb. 20, 2013) (citation and footnote omitted) (“The certificate filed by [the plaintiff] is not in compliance with the requirements outlined in Tenn. Code Ann. § 29-26-122. . . .  As a consequence, [the] complaint must be dismissed . . . .”).  See also Tenn. Code Ann. § 29-26-122(c) (2012) (“The failure of a plaintiff to file a certificate of good faith in compliance with this section shall, upon motion, make the action subject to dismissal with prejudice.”).

[7] See Chambers ex rel. Chambers v. Bradley Cnty., No. E2013-01064-COA-R10-CV, 2014 WL 1266101, at *3 (Tenn. Ct. App. Mar. 28, 2014) (“The statute formerly known as the Medical Malpractice Act [is now] called the Health Care Liability Act . . . .”).

[8] See Arden v. Kozawa, No. E2013-01598-COA-R3-CV, 2014 WL 2768636, at *8 (Tenn. Ct. App. June 18, 2014) (“Having found that the sole acceptable method of mailing pre-suit notice would be through the U.S. Postal Service, we conclude that [plaintiff’s] mailing through Federal Express Priority service was improper and ineffective.”); see also Foster v. Chiles, No. E2012-01780-SC-R11-CV, 2015 WL 343872, at *2, *4 (Tenn. Jan. 27, 2015) (dismissing a plaintiff’s re-filed health care liability complaint on the basis that “Tenn. Code Ann. § 29-26-121(a)(1) requires that plaintiffs provide pre-suit notice to prospective health care defendants each time a complaint is filed”—even though the plaintiff’s re-filed complaint was “essentially identical” to the first complaint for which notice had already been provided).

[9] See, e.g., Stevens, 418 S.W.3d at 560 (“If the legislature had intended to punish a plaintiff’s failure to comply with the requirements of Tenn. Code Ann. § 29-26-121(a)(2)(E) by requiring courts to dismiss all such cases with prejudice, the legislature could easily have done so, as it did in Tenn. Code Ann. § 29-26-122.  Thus, we can only interpret the legislature’s failure to mandate the same remedy for Tenn. Code Ann. § 29-26-121(a)(2)(E) violations as an indication that dismissal with prejudice for such violations is not compulsory.”).  The sole exception to this holding has been in the case of non-compliance with the certificate of good faith requirement, which the act specifically states must be punished by dismissal with prejudice.  See Myers, 382 S.W.3d at 311–12.

[10] See Stevens, 418 S.W.3d at 554 (“Tenn. Code Ann. § 29-26-121(a) establishes six separate requirements that serve related yet ultimately distinct goals.”).

[11] See Tenn. Code Ann. § 29-26-121(c) (2013) (“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.”).

[12] Strictly for purposes of clarity, this article adopts the use of the words “he” and “his” to denote generic, gender-neutral third-person pronouns and antecedents.  No offense is intended.

[13] As the Tennessee Supreme Court has stated:  “[p]laintiff[s]—not [d]efendants—[are] responsible for complying with the requirements of Tenn. Code Ann. § 29-26-121(a)(2)(E),” and there is “no authority” to support the proposition that defendants are under the obligation to inform plaintiffs of their mistakes.  Stevens, 418 S.W.3d at 559.  See also Roberts v. Prill, No. E2013-02202-COA-R3-CV, 2014 WL 2921930, at *6 (Tenn. Ct. App. June 26, 2014) (“Plaintiff admits that she intentionally left sections of the form blank and anticipated that Defendants would fill in the form.  She essentially argues that the onus should be placed on Defendants to test the sufficiency of the form or even to complete an inadequate form.  Plaintiff’s argument is akin to the argument rejected by the [Tennessee Supreme] Court in Stevens, namely that defendants should have informed plaintiff of the errors in the form before filing a motion to dismiss.”); Vaughn v. Mountain States Health Alliance, No. E2012-01042-COA-R3-CV, 2013 WL 817032, at *4 & n.8 (Tenn. Ct. App. Mar. 5, 2013) (“[Plaintiff] argues . . . that the [Defendants] should have contacted his counsel prior to an action being filed against them in order to inform [Plaintiff’s] counsel that the requirements of Tennessee Code Annotated section 29-26-121 had not been met.  We find that [Plaintiff’s] contention is without merit, as no provision in the Act requires potential defendants to assist a claimant with compliance.  As noted by [Defendant’s] counsel, ‘if defense counsel assisted Plaintiff’s counsel with prosecuting a malpractice case against our clients, we’d arguable [sic] be guilty of malpractice.’”).

[14] See, e.g., Vaughn, 2013 WL 817032 at *5 (“Subsection (c) of Tennessee Code Annotated section 29-26-121 provides that a claimant only gets the benefit of the extension of the applicable statute of limitations if the requirements of the section are given as directed . . . .”).

[15] Stevens, 418 S.W.3d at 560.

[16] See, e.g., Roberts, 2014 WL 2921930 at *3 (“Plaintiff concedes that without the extension of the statute of limitations pursuant to Tennessee Code Annotated section 29-26-121(c), her complaint was untimely.”).

[17] See, e.g., Stevens, 418 S.W.3d at 564 (Wade, C.J., concurring in part and dissenting in part) (noting that the health care liability defendant had ignored the plaintiff’s obviously non-compliant HIPAA authorization form for more than seven months after receiving it); Brown v. Samples, No. E2013-00799-COA-R9-CV, 2014 WL 1713773, at *1–2 (Tenn. Ct. App. Apr. 29, 2014) (where nearly fifteen months after receiving actual notice of plaintiff’s complaint, defendant alleged lack of effective notice and insisted “that plaintiffs were therefore not entitled to the 120-day extension of the statute of limitation and thus their action was time-barred.”); Hinkle v. Kindred Hosp., No. M2010-02499-COA-R3-CV, 2012 WL 3799215, at *2–3 (Tenn. Ct. App. Aug. 31, 2012) (where a defendant’s attorney “acknowledg[ed] receipt of the [Plaintiff’s pre-trial notice] letter,” “shared relevant medical information” for purposes of discovery, and then filed a motion to dismiss the Plaintiff’s complaint approximately nine months later on the basis that that “Plaintiff . . . had failed to fulfill the statutory notice requirements for filing a medical malpractice claim”).

[18] Hinkle, 2012 WL 3799215 at *15.

[19] The HCLA requires that plaintiffs provide defendants with a HIPAA-compliant medical authorization form in an effort to facilitate early pre-trial discovery and evaluation of a plaintiff’s potential claim.  See Stevens, 418 S.W.3d at 554 (“[T]he requirement[] of . . .  Tenn. Code Ann. § 29-26-121(a)(2)(E) serve[s] an investigatory function, equipping 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.”); see also Tenn. Code Ann. § 29-26-121(a)(2)(E) (2013) (“The notice shall include . . . [a] HIPAA compliant medical authorization permitting the provider receiving the notice to obtain complete medical records from each other provider being sent a notice.”).  In order to be HIPAA compliant, a plaintiff’s medical authorization form must contain, inter alia, a description of its signer’s authority to act on the plaintiff’s behalf if the form is signed by a representative of the plaintiff.  See Stevens, 418 S.W.3d at 556 (citing 45 C.F.R. § 164.508(c)(1) (2013)).  Errors of this nature have contributed to a plaintiff’s complaint being dismissed.  See, e.g., Roberts, 2014 WL 2921930 at *5 (“Plaintiff signed the form in her representative capacity but failed to provide a description of her authority to act for Decedent.  Due to Plaintiff’s errors, Defendants were not legally authorized to use the pertinent medical records to mount a defense, despite the fact that the records may have already been in their possession.  With these considerations in mind, we conclude that Plaintiff failed to substantially comply with section 29-26-121(a)(2)(E) . . . .”).

[20] See Stevens, 418 S.W.3d at 564 (Wade, C.J., concurring in part and dissenting in part) (“Here, the Defendants chose the third option, addressing the inadequate medical authorization form for the first time by filing motions to dismiss approximately seven months after receipt of the pre-suit notice.”).

[21] Id.

[22] Id. at 560.

[23] Id. (citation omitted).

[24] See In re New England Compounding Pharmacy, Inc. Products Liab. Litig., MDL No. 13-02419-RWZ, 2014 WL 4322409, at *11 n.9 (D. Mass. Aug. 29, 2014) (“The [Stevens] [C]ourt acknowledged . . . that the dismissal without prejudice effectively operated as a dismissal with prejudice because plaintiff’s claim would then be time-barred.”);.Johnson v. Parkwest Med. Ctr., No. E2013-01228-COA-R3CV, 2014 WL 3765702, at *7 (Tenn. Ct. App. July 31, 2014) (citations omitted) (“We therefore affirm the trial court’s dismissal of [the plaintiff’s] health care liability claims without prejudice.  In so holding, we note that any further health care liability claims by [the plaintiff] will be time[-]barred.”); Roberts, 2014 WL 2921930 at *5–6  (citations omitted) (“[T]he [Stevens] Court acknowledged but declined to address the fact that its dismissal without prejudice operated as a dismissal with prejudice because any future claim would be time-barred. . . .  [W]e affirm the dismissal of Plaintiffs’ claim without prejudice.  In so holding, we acknowledge that any further claims by Plaintiff will be time-barred.”); Givens v. Vanderbilt Univ., No. M2013-00266-COA-R3-CV, 2014 WL 820622, at *5–6 (Tenn. Ct. App. Feb. 27, 2014) (citations omitted) (“The [Stevens] Court acknowledged but declined to address the fact that its dismissal without prejudice operated as a dismissal with prejudice because any future claim would be time-barred. . . .  We affirm the dismissal of Plaintiffs’ claim without prejudice based upon the Court’s reasoning in Stevens.  In so holding, we acknowledge that any further claims by Plaintiff will be time-barred.”).

[25] See, e.g., Thurmond v. Mid-Cumberland Infectious Disease Consultants, PLC, 433 S.W.3d 512, 520 (Tenn. 2014) (applying the substantial compliance doctrine to Tenn. Code Ann. § 29–26–121(a)(4) (2013), and characterizing Myers and Stevens as “instruct[ing] that . . . unless strict compliance with a notice content requirement ‘is essential to avoid prejudicing an opposing litigant,’ substantial compliance with a content requirement will suffice[.]” (quoting Stevens, 418 S.W.3d at 555)).

[26] Tenn. Code Ann. § 29-26-121(c) (2013) (“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.”).

[27] See Rajvongs v. Wright, 432 S.W.3d 808, 811 (Tenn. 2013) (holding that pursuant to Tennessee’s savings statute, “if a timely filed action is dismissed without prejudice, a plaintiff may ‘commence a new action within one (1) year after’ the dismissal.” (quoting Tenn. Code Ann. § 28-1-105(a) (1985))); Davis v. Ibach, No. W2013-02514-COA-R3-CV, 2014 WL 3368847, at *4 (Tenn. Ct. App. July 9, 2014) (holding that “nothing in the statute governing certificates of good faith precludes a plaintiff from exercising the ‘free and unrestricted’ right to dismiss an action without prejudice provided in Tenn. R. Civ. P. 41.01.”).

[28] See, e.g., Brown, 2014 WL 1713773 at *8 (collecting cases and holding that “Tennessee courts have long recognized that the interests of justice are promoted by providing injured persons an opportunity to have their lawsuits heard and evaluated on the merits”); Givens v. Vanderbilt Univ., No. M2013-00266-COA-R3-CV, 2013 WL 5773431, at *4 (Tenn. Ct. App. Oct. 24, 2013) (“We conclude that section 121 does not require a court to dismiss a complaint with prejudice for noncompliance with the notice requirement of that section.  This conclusion is in keeping with the general principle that ‘Tennessee law strongly favors the resolution of all disputes on their merits.’” (quoting Henley v. Cobb, 916 S.W.2d 915, 916 (Tenn.1996))); Bowers v. Gutterguard of Tennessee, Inc., M2002-02877-COA-R3-CV, 2003 WL 22994302, at *5, (Tenn. Ct. App. Dec. 17, 2003) (“[I]t is the general rule that courts are reluctant to give effect to rules of procedure . . . which prevent a litigant from having a claim adjudicated upon its merits.” (quoting Childress v. Bennett, 816 S.W.2d 314, 316 (Tenn. 1991))).  See also Chambers, 2014 WL 1266101 at *5.

[29] See, e.g.,  Ken Coleman, H.B. 2233, 106th Gen. Assem. (statement of Ken Coleman) (Tenn. May 26, 2009) (“[Tenn. Code Ann. § 29-26-121(c)] makes sure the statute of limitations is expanded to a date certain.”);  S.B. 2109, 106th Gen. Assem. (statement of Doug Overbey) (Tenn. May 20, 2009) (“[Tenn. Code Ann. § 29-26-121(c)] makes the date upon which the statute of limitations expires ‘much clearer’ so that parties ‘don’t have to guess at that[.]’”); H.B. 2233, 106th Gen. Assem. (statement of Ken Coleman) (Tenn. May 6, 2009) (“[Tenn. Code Ann. § 29-26-121(c)] extends . . .  the statute of limitations or the statute of repose by 120 days. . . .  That way everybody knows the date certain [on] which the statute would lapse.”).  Cf. Myers., 382 S.W.3d at 309 n.8 (noting that “in committee discussion of the periods of time allowed for compliance with the statutes’ filing requirements, Senator Jim Kyle observed ‘the whole bill is date driven . . . we don’t need the judiciary to interpret our desire there as to what the date is.’” (citing S.B. 2001, 102nd Gen. Assem. (Tenn. Mar. 27, 2007))).

[30] Stevens, 418 S.W.3d at 562.

[31] See, e.g., Chambers ex rel. Chambers v. Bradley Cnty., No. E2013-01064-COA-R10-CV, 2014 WL 1266101, at *6 (Tenn. Ct. App. Mar. 28, 2014) (“Allowing a defendant to participate in discovery and negotiations while waiting to raise technical objections is not consistent with the purposes of the statutory requirements for filing medical malpractice lawsuits.”).

[32] Stevens, 418 S.W.3d at 554.

[33] Tennessee courts have repeatedly referenced this fact.  For example, in Brown v. Samples, No. E2013-00799-COA-R9-CV, 2014 WL 1713773 (Tenn. Ct. App. Apr. 29, 2014), the Court of Appeals upheld and favorably cited an opinion from the Tennessee Claims Commission that criticized defense attorneys for their “disingenuous” notice defense and concluded that “we feel confident in finding that the General Assembly never intended that the amendments to the Medical Malpractice Act would completely strip away the rights of Tennessee citizens, who might have legitimate medical malpractice claims, because of some minor and hyper-technical error in initiating such a claim.  Surely, that is not the intent of our elected representatives.”  Id. at *5.  Another panel of the Court of Appeals expressed a similar sentiment in Hinkle v. Kindred Hosp., No. M2010-02499-COA-R3-CV, 2012 WL 3799215 (Tenn. Ct. App. Aug. 31, 2012), explaining that:  “Dismissal of a meritorious complaint even where the defendant had actual notice and allowing a defendant to participate in discovery and negotiations while waiting to raise technical objections is not consistent with the purposes of the statutory requirements for filing medical malpractice lawsuits.”  Id. at *15.

[34] See supra note 28.

[35] See Full House Discussion, H.B. 2233, 106th Gen. Assem. (Tenn. May 26, 2009); Senate Judiciary Committee Discussion, S.B. 2109, 106th Gen. Assem. (Tenn. May 20, 2009); House Civil Practice and Procedure Subcommittee Discussion, H.B. 2233, 106th Gen. Assem. (Tenn. May 6, 2009); see also supra note 29 and accompanying text.

[36] See generally Suzanna Sherry & Jay Tidmarsh, Civil Procedure: Essentials 26–29 (2007) (discussing the adjudication of claims on their merits).

[37] Id. at 27 (citing Roscoe Pound, The Causes of Popular Dissatisfaction with the Administration of Justice, Address at American Bar Association Convention (Aug. 26, 1906), available at 35 F.R.D. 273, 282 (1964)).

[38] Bowers, 2003 WL 22994302 at *5; see also Childress, 816 S.W.2d at 316 (noting that “it is the general rule that courts are reluctant to give effect to rules of procedure . . . which prevent a litigant from having a claim adjudicated upon its merits”).