Kerry Gray v. Saint Francis Hospital-Bartlett, Inc. a/k/a Tenet HealthSystem Bartlett, Inc., et al.

This Tenn. R. App. P. 9 appeal arises from a wrongful death, healthcare liability action filed by the plaintiff on behalf of his deceased wife and her heirs-at-law against two hospitals and numerous healthcare providers. The dispositive issue is whether the pre-suit notices and HIPAA releases the plaintiff sent to one set of healthcare providers on December 17, 2015, and the separate pre-suit notices and HIPAA releases the plaintiff sent to a different set of healthcare providers on December 22, 2015, substantially complied with Tennessee Code Annotated § 29-26-121(a)(2)(D) and (E). If so, the commencement of the initial action in 2015 as to both sets of healthcare providers and the refiling of the action in 2017 pursuant to Tennessee’s saving statute were both timely. If not, the plaintiff’s claims as to all defendants are barred by the statute of limitations. The plaintiff’s now-deceased wife had outpatient hernia surgery at Saint Francis Hospital-Bartlett, Inc. (“St. Francis”). Five days later, she was admitted to Methodist Hospital University (“Methodist”) following several days of altered mental status with auditory and visual hallucinations where she was examined, treated, and released only to return to Methodist three days later. Following an exploratory laparotomy and other examinations and treatments, she died at Methodist a week later. The plaintiff timely sent pre-suit notices to the St. Francis providers; however, the notices only identified the St. Francis providers as potential defendants and provided HIPAA authorizations that allowed the St. Francis providers to obtain medical records, but only from the other St. Francis providers. Moreover, the pre-suit notices did not identify any Methodist providers as potential defendants. Five days later, the plaintiff sent pre-suit notices to numerous Methodist providers, which only identified the Methodist providers as potential defendants and which provided HIPAA authorizations that allowed the Methodist providers to obtain medical records, but only from the other Methodist providers. Thereafter, and relying on the 120-day extension of the statute of limitations available under § 121(c), the plaintiff filed a single wrongful death, healthcare liability action naming both hospitals and all of the healthcare providers as co-defendants. The defendants filed Tenn. R. Civ. P. 12.02(6) motions to dismiss, arguing that the plaintiff was not entitled to rely on the 120-day extension because he did not substantially comply with the pre-suit notice requirements of § 121(a)(2)(D) and (E). Before the trial court could rule on the motion, the plaintiff voluntarily dismissed his action. Then, relying on Tennessee Code Annotated § 28-1-105(a), Tennessee’s saving statute, the plaintiff refiled the action. The defendants responded by filing Rule 12.02(6) motions to dismiss, arguing that the original action and the refiled action were both time-barred because the plaintiff failed to substantially comply with § 121(a)(2)(D) and (E) prior to commencing the original action. The trial court denied the motion, ruling that the plaintiff substantially complied with the pre-suit notice statute in the original action and was thus entitled to rely on the extension under § 121(c). This Tenn. R. App. P. 9 interlocutory appeal followed. Having determined that the plaintiff did not substantially comply with the pre-suit notice requirements of § 121, we reverse and remand with instructions to dismiss all claims as barred by the statute of limitations.