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Brief Summary: T.C.A. § 29-26-121 provides strict pre-suit notice requirements for medical malpractice/healthcare liability causes of action. However, this statute provides an exception which allows the court to "excuse compliance with this section only for extraordinary cause shown." This new Tennessee Court of Appeals decision implies that an attorney's deployment to Afghanistan as a soldier could provide an excuse for noncompliance under the “extraordinary cause" exception.
Analysis: The Tennessee Court of Appeals has addressed the new pre-suit notice requirements for Tennessee medical malpractice/healthcare liability causes on several occasions. T.C.A. § 29-26-121 provides the following requirement for pre-suit notice before filing a medical malpractice/healthcare liability action:
(a)(1) Any person, or that person's authorized agent, asserting a potential claim for health care liability shall give written notice of the potential claim to each health care provider that will be a named defendant at least sixty (60) days before the filing of a complaint based upon health care liability in any court of this state.
(2) The notice shall include:
(A) The full name and date of birth of the patient whose treatment is at issue;
(B) The name and address of the claimant authorizing the notice and the relationship to the patient, if the notice is not sent by the patient;
(C) The name and address of the attorney sending the notice, if applicable;
(D) A list of the name and address of all providers being sent a notice; and
(E) A HIPAA compliant medical authorization permitting the provider receiving the notice to obtain complete medical records from each other provider being sent a notice.
The recent Tennessee Court of Appeals decision of Deborah Mason Hawkins v. Rodney A. Martin, M.D., 2012 WL 3007680, W2011-02318-COA-R3-CV (filed July 24, 2012) dealt with a situation where the plaintiff failed to attach a HIPAA compliant medical authorization to the notice provided to the defendant prior to filing the complaint. The pre-suit notice requirements of T.C.A. § 29-26-121 require the plaintiff to provide all defendants, a HIPAA compliant medical authorization for each provider “being sent a notice”.
In the Hawkins case, the question was whether the plaintiff complied with this requirement to provide a medical authorization. The defendants filed a motion to dismiss asserting they never received medical authorization. Plaintiff’s counsel testified he could not say with certainty whether the medical authorization was provided as required under the statute. However, plaintiff's counsel cited to the fact he was deployed to Afghanistan as a member of the United States military as a reason the authorization may not have been sent to the defendant. Plaintiff's counsel obtained additional counsel to handle this case when he was deployed to Afghanistan. The plaintiff therefore asserted this deployment and the transfer of the case to another attorney caused confusion concerning the medical authorization.
The Tennessee Court of Appeals has dealt with other situations involving a lack of compliance with the T.C.A. § 29-26-121 pre-suit notice requirements including the DePue v. Schroeder, 2011 WL 538865 (Tenn. Ct. App. Feb. 15, 2011) and Myers v. AMISUB (SFH), Inc., d/b/a St. Francis Hospital et al., 2011 WL 664753 (Tenn. Ct. App. Feb. 24, 2011) decisions. These cases found the fact the defendant is not prejudiced by noncompliance with the pre-suit notice requirements does not excuse noncompliance. Hawkins at 4. Further, the DePue and Myers cases held that the pre-suit notice requirement language is mandatory and therefore the claim is subject to dismissal as a result of noncompliance. Hawkins at 4.
As a result, in the Hawkins case, the trial court dismissed the plaintiff's complaint due to the failure to provide a medical authorization. The trial court interpreted the DePue and Myers decisions as standing for the proposition that "attorney oversight, whether its because you are going to Afghanistan or whatever, is not even good cause and doesn't rise to the level of extraordinary cause." The Tennessee Court of Appeals in the Hawkins court disagreed with the trial court's assessment of these cases. The Tennessee Court of Appeals found:
Section 29–26–121(b) authorizes the trial court to excuse compliance with the section when, in the exercise of its sound and reasoned discretion, the trial court finds that noncompliance resulted from extraordinary cause. “Extraordinary cause,” however, is not defined by the statute. We have held that mere attorney oversight, unaccompanied by extraordinary circumstances, does not constitute extraordinary cause. We have not held, however, that a trial court does not have the discretion to excuse compliance for attorney oversight caused by unique and extraordinary circumstances. It is the duty of the trial court to weigh the entirety of the circumstances and to determine whether extraordinary cause exists on a case by case basis.
(emphasis added). Therefore, the Tennessee Court of Appeals remanded the case back to the trial court to determine whether, under the totality of circumstances, extraordinary cause existed under T.C.A. § 29-26-121(b) to excuse the conduct of the attorney in this case. We do not know how the trial court will handle the facts of this case when it re-addresses this issue, but perhaps the fact plaintiff's counsel was deployed to Afghanistan will be a sufficient excuse in this context. It appears to me that the Court of Appeals invited the trial court to deem this as “extraordinary cause” based on the fact the appellate court did not reject this argument out of hand.
Prior to this case I have been surprised by how narrowly Tennessee Court’s have interpreted T.C.A. § 29-26-121. The Court’s have generally required strict compliance with this statute and have refused to make it easy to come within the “extraordinary cause" exception. This case appears to be a little bit of a pushback against those prior decisions and invites trial courts to make the discretionary decision "under the totality of the circumstances" if it such extraordinary cause exists. Most likely, this case will lead to more disagreements concerning the "extraordinary cause" exception. However, noncompliance with T.C.A. § 29-26-121 should still be pursued as a defense because it still takes extraordinary cause to be excused from strict compliance with this statute.
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