Tennessee Supreme Court Clarifies the Role of Prejudice in Determining whether a Plaintiff has Provided Substantially Compliant Pre-Suit Notice in Health Care Liability Actions

April 29, 2020

A majority of the Tennessee Supreme Court ruled today that plaintiffs who provided defendants with medical authorizations lacking three of the six core elements required by the federal Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) failed to substantially comply with a Tennessee law requiring pre-suit notice in health care liability actions.  As a result, the Court dismissed the plaintiffs’ lawsuit as untimely.

Under Tennessee law, a plaintiff with a potential health care liability claim must give written notice of the claim to each health care provider that will be named as a defendant at least 60 days before filing suit.  The law— which is found in Tennessee Code Section 29-26-121—specifies the information that must be included with the notice, and one of these content requirements is a HIPAA compliant medical authorization. When a plaintiff provides pre-suit notice that complies with the statutory content requirements, the plaintiff has one year plus an additional 120 days to file a health care liability action.  If a plaintiff files a health care liability action within this time, the plaintiff also may voluntarily dismiss the lawsuit and file a second lawsuit within one year of the voluntary dismissal.  This is known as a savings statute.

The case before the Tennessee Supreme Court arose from the June 28, 2013 death of Chelsey Elizabeth Kay Helwig, who was found unresponsive in her hospital room at Rolling Hills Hospital, LLC and died later that day.  On October 4, 2013, the Plaintiffs, consisting of Ms. Helwig’s estate, mother, father, and minor children, sent letters to Rolling Hills and Universal Health Services, Inc. notifying them of their intent to file suit and included with each letter two medical authorizations.  These medical authorizations lacked three of the six core elements required for HIPAA compliance.

On June 20, 2014, the Plaintiffs sent a letter to Matthew Karl, M.D., notifying him of their intent to file suit and again included medical authorizations that lacked three of the six core elements required for HIPAA compliance.

On October 17, 2014—one year and 111 days after Ms. Helwig’s death —the Plaintiffs filed a health care liability action alleging that Ms. Helwig died as a result of the negligence of Rolling Hills, Dr. Karl, and Universal Health Services.  On January 27, 2015, the Plaintiffs voluntarily dismissed their first lawsuit.  Less than a year later, the Plaintiffs filed a second lawsuit alleging the same healthcare liability claims against the Defendants.  The Plaintiffs relied on the savings statute.

The Defendants filed motions asking the trial court to dismiss the second lawsuit as time-barred, arguing that the Plaintiffs had not filed their original action within one year of Ms. Helwig’s death and were not entitled to the 120-day extension because the medical authorizations were not HIPAA compliant.  The Plaintiffs responded that they had substantially complied with the pre-suit notice requirements and that any noncompliance had not prejudiced the Defendants.  The Plaintiffs asserted their first lawsuit, filed within the 120-day extension, was timely and their refiled second lawsuit filed within one year of their voluntary dismissal of the first also was timely.

The trial court granted the Defendants’ motions and dismissed the case. The Plaintiffs appealed, and the Court of Appeals reversed.  The Tennessee Supreme Court granted the Defendants’ permission to appeal.

A majority of the Supreme Court ruled that the Plaintiffs failed to substantially comply with the pre-suit notice requirements because they provided medical authorizations lacking three of the six core elements required for HIPAA compliance.  The majority also clarified the role of prejudice to the defendant in noncompliance and which party bears the burden of proof, holding that, while prejudice to the defendant from a plaintiff’s noncompliance is not a separate analytical element, it is relevant in determining whether a plaintiff has substantially complied.  Here, the Plaintiffs failed to satisfy their burden of showing that the Defendants were not prejudiced.  As a result, the Plaintiffs were not entitled to the 120-day extension of the statute of limitations, and their first lawsuit was not timely filed.  Because their first lawsuit was not timely filed, the majority ruled that the Plaintiffs could not rely on the savings statute to refile their second lawsuit.

At the Supreme Court, the Plaintiffs also argued they were entitled to the 120-day extension under section 121(c) of the health care liability law because they complied with section 121(a), the pre-suit notice requirement, even if they did not meet the content requirements outlined in 121(a)(2).  The majority declined to address this issue because the Plaintiffs did not raise it at the trial court or in the Court of Appeals. Therefore, the majority found the issue was waived for purposes of this appeal and instead relied entirely on the prejudice issue in the lower courts.

Justice Holly Kirby filed a separate opinion dissenting in part from the majority opinion. Justice Kirby would have decided the case based on an issue the majority said the Plaintiffs had waived. The statutes give plaintiffs an extra 120 days to file a healthcare liability lawsuit, so long as they comply with certain provisions of the statute. Justice Kirby said she would hold that plaintiffs can rely on the 120-day extension of time so long as they give pre-suit notice, even if there are errors in the content of the notice, such as the medical authorization form. She pointed out that Tennessee’s lower courts had dismissed many otherwise valid healthcare liability lawsuits as barred by the statute of limitations, just because of a technical error in the medical authorization form attached to the pre-suit notice. Justice Kirby argued this result was not what the legislature intended when it enacted the law.

In response to Justice Kirby’s opinion, the majority observed that the waived argument was inconsistent with existing precedent, that the existing precedent reflected legislative intent because the General Assembly had not amended the statute to abrogate the existing precedent, and that, if accepted, the Plaintiffs’ argument would render one portion of the pre-suit notice statute a nullity.

To read the Supreme Court’s majority opinion in Melissa Martin et al. v. Rolling Hills Hospital, LLC et al., authored by Justice Cornelia A. Clark, as well as the separate concurring in part and dissenting in part opinionauthored by Justice Holly Kirby, go to the opinions section of TNCourts.gov.