Tag Archives: Health Care Liability Act

Tennessee Supreme Court Holds That HIPAA Authorizations Need Not Be Provided in Single-Defendant Medical Malpractice Cases

By Daniel A. Horwitz

In the most recent chapter of the seemingly endless litigation over Tennessee’s medical malpractice statute (known as the “Tennessee Health Care Liability Act,” or “HCLA”), the Tennessee Supreme Court has held that plaintiffs need not include a HIPAA-compliant authorization form in their pre-suit notice packages if only one defendant is being sued.  Thus, in single-defendant medical malpractice cases, the Court’s holding operates to remove one of the many landmines that medical malpractice plaintiffs must navigate in order to get through the courthouse door.

“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 [medical malpractice] claims.”[1]  In theory, the myriad pre-suit notice requirements contained in the HCLA are intended to “allow[] health care providers to evaluate the merits of potential health care liability claims before a suit is commenced, facilitat[e] communication among the parties, and encourage[e] early settlement negotiations.”[2]  In practice, however, these procedural requirements operate “as a minefield to unwary litigants and frequently result in otherwise-valid claims being dismissed on technical procedural grounds.”[3]  Consequently, in one of his prior publications, this author has characterized the HCLA’s pre-suit notice requirements as “red tape with fangs.”[4]

One pre-suit notice requirement of the HCLA—codified at Tenn. Code Ann. § 29-26-121(a)(2)(E)—compels plaintiffs to provide prospective medical malpractice defendants with “[a] HIPAA compliant medical authorization permitting the provider receiving the notice to obtain complete medical records from each other provider being sent a notice.”[5]  In Bray v. Khuri—a wrongful death case involving a patient who committed suicide while receiving in-patient psychiatric care—Tennessee’s Court of Appeals held that the medical authorization form that the decedent’s surviving spouse had provided in her pre-suit notice package had not been HIPAA-compliant.  As a result, the Court of Appeals held that the plaintiff’s lawsuit had to be dismissed outright before it could even begin.

On appeal to the Tennessee Supreme Court, the Bray plaintiff argued that whether or not her medical authorization form had complied with HIPAA (something that the parties disputed), she was not even required to comply with Tenn. Code Ann. § 29-26-121(a)(2)(E) because there was only a single defendant in the case.  Intuitively, the argument had substantial force.  If the purpose of Tenn. Code Ann. § 29-26-121(a)(2)(E) is to ensure that defendants could “obtain complete medical records from each other provider being sent a notice,” the plaintiff’s argument went, then it is difficult to imagine how or why this requirement would apply when there isn’t any “other provider being sent a notice” at all.[6]

In response, the defendant in Bray argued that compliance with Tenn. Code Ann. § 29-26-121(a)(2)(E) is necessary even when just a single provider is sued because defendants are prohibited from discussing potential lawsuits with their attorneys unless they have received a HIPAA-compliant authorization form.  Specifically, the defendant argued, “HIPAA prohibits the disclosure of a patient’s medical records to counsel for evaluating the merits of a potential claim absent a valid medical authorization.”[7]

Flatly rejecting this argument, the Tennessee Supreme Court noted that “HIPAA regulations allow a healthcare provider to ‘use or disclose protected health information for treatment, payment, or health care operations,’” and that in turn, federal regulations expressly define “health care operations” to include “[c]onducting or arranging for legal services.”[8]  The Court further noted that:

The United States Department of Health and Human Services (“HHS”), in its Frequently Asked Questions (“FAQ”) for Professionals pages of its website, indicates that a healthcare provider may use or disclose protected health information for litigation “whether for judicial or administrative proceedings, . . . or as part of the covered entity’s health care operations.”  HHS further recognizes that “[i]n most cases, the covered entity will share protected health information for litigation purposes with its lawyer, who is either a workforce member or a business associate.” HIPAA regulations define a “business associate” to include a person who provides legal services to or for a healthcare provider.[9]

Thus, the Tennessee Supreme Court concluded that “HIPAA does not require [defendants] to obtain a medical authorization to use a patient’s medical records in [their own] possession,” and that such records may be used to “consult with counsel to evaluate the merits of a potential claim” even without authorization from a patient.[10]  As such, because neither the text nor the purpose of Tenn. Code Ann. § 29-26-121(a)(2)(E) indicated that it applied to medical malpractice cases involving just a single defendant, the Tennessee Supreme Court reversed the lower court’s ruling and permitted the plaintiff’s lawsuit to move forward.

The Court’s sensible and straightforward ruling in Bray represents a small victory for a narrow subset of medical malpractice plaintiffs in Tennessee.  As a whole, however, the larger problems with the statute persist.  It has been more than a hundred years since Roscoe Pound, the preeminent former Dean of Harvard Law School, condemned the “sporting theory of justice” that was in vogue during the 19th and early 20th centuries, when lawsuits turned on whether “the rules of the game been carried out strictly” rather than on what “substantive law and justice require.”[11]  Since then, the legal system has evolved to reflect 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.”[12]  Regrettably, however, in the realm of medical malpractice liability, the “sporting theory” of justice has largely returned to prominence in Tennessee.

Read the Tennessee Supreme Court’s unanimous decision in Bray v. Khuri, authored by Justice Sharon Lee, here.

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[1] Daniel A. Horwitz, All claims related to the provision of health care are now governed by the Health Care Liability Act, holds Tennessee Supreme Court, ScotBlog (Dec. 7, 2015), available at  https://scotblog.org/2015/12/all-claims-related-to-the-provision-of-health-care-are-now-governed-by-the-health-care-liability-act-holds-tennessee-supreme-court/.

[2] Stevens ex rel. Stevens v. Hickman Cmty. Health Care Servs., Inc., 418 S.W.3d 547, 564 (Tenn. 2013).

[3] Id.

[4] 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.

[5] Tenn. Code Ann. § 29-26-121(a)(2)(E).

[6] Tenn. Code Ann. § 29-26-121(a)(2)(E) (emphasis added).

[7] Bray v. Khuri, __ S.W. 3d __, __ (2017), No. W2015-00397-SC-R11-CV (July 5, 2017), available at http://www.tba.org/sites/default/files/brayd_070517.pdf?fid=16e9ebec9f8d4e9e754ea118283ffe7c1c180148.

[8] Id. (citing 45 C.F.R. § 164.506(a); 45 C.F.R. § 164.506(c)(1)).

[9] Id. (citing HIPAA for Professionals FAQ 705,HHS (Jan. 7, 2005), https://www.hhs.gov/hipaa/for-professionals/faq/705/may-a-covered-entity-in-a-legalproceeding-use-protected-health-information/index.html).

[10] Id.

[11] See Daniel A. Horwitz, The Law of Unintended Consequences:  Avoiding the Health Care Liability Act Booby Trap 8, available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2577156 (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)).

[12] Id. (quoting 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.”)).

All claims related to the provision of health care are now governed by the Health Care Liability Act, holds Tennessee Supreme Court.

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.[1]  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.”[2]  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.[3]  Tennessee law also provides that a plaintiff’s failure to comply with this requirement results in his or her complaint being dismissed with prejudice,[4] 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.

FedEx can deliver HCLA pre-suit notice letters, too, 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.”[1]  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.’”[2]  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.”[3]

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[.]’”[4] 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;”[5] (2) “[t]he name and address of the attorney sending the notice, if applicable;”[6] 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.”[7]  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”[8] or “[m]ailing of the notice.”[9]

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[.]”[10]  In Arden, the plaintiff’s attorney admitted that Continue reading FedEx can deliver HCLA pre-suit notice letters, too, holds Tennessee Supreme Court

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.    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

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

Under Tennessee law, a doctor who operates on a patient generally faces liability for three potential claims if something goes wrong:

  1. Medical battery, which means that the doctor performed a procedure that the patient did not authorize;[1]
  1. 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;[2] and
  1. 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.[3]

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.

Zero Is Not a Number For Purposes of Tennessee’s Health Care Liability Act, Says 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.[1]  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