If you have a claim for medical malpractice in Tennessee, the Health Care Liability Act is the controlling law. Medical negligence cases require a tremendous amount of work, even BEFORE a lawsuit can be filed. Before a plaintiff files suit, the Tennessee legislature has set up a pre-suit notice requirement full of potential traps. The pre-suit notice process often causes the actual merits of the claim to never be addressed. Instead, medical providers and insurance companies often just file motions to dismiss the case alleging a plaintiff missed a step. The end result is often a plaintiff’s story is never even heard.
Under Tennessee law, a Plaintiff must provide 60-day notice to healthcare providers (pre-suit notice) along 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.” (Tenn. Code Ann. § 29-26-121).
In a case that made its way up to the Supreme Court, a patient’s surviving spouse filed a medical malpractice claim against a psychiatrist after their spouse committed suicide while under the care of the psychiatrist. The doctor filed a motion to dismiss the case, because the surviving spouse didn’t send a HIPAA compliant medical authorization, along with the pre-suit notice, even though the notice stated that the psychiatrist was the only healthcare provider receiving notice. The psychiatrist argued that plaintiff didn’t comply with Tenn. Code Ann. § 29-26-121 because the medical authorization wasn’t HIPAA compliant. The defendant won the motion and won again on appeal. The case was then appealed to the Tennessee Supreme Court.
So, what does all this mean? The law clearly states the notice sent by plaintiff must 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.” (Tenn. Code Ann. § 29-26-121). Well, plaintiff only sent notice to one healthcare provider! The Supreme Court sided with the surviving spouse and ruled that the statute is clear and unambiguous. A plaintiff is not required to send a HIPAA-compliant medical authorization when there is only one healthcare provider given pre-suit notice of a healthcare liability claim.
Common sense, right? If a plaintiff brings a health care liability claim against one healthcare provider, and sends pre-suit notice to that one healthcare provider, there aren’t any other healthcare providers that were sent a notice. So, no HIPAA-compliant medical authorization is required. Also, in a case like this, the provider has access to his/her own records and suffers no prejudice by not receiving a HIPAA-compliant medical authorization.
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