Tennessee Supreme Court Eases One Pre-suit Procedural Requirement for Bringing Medical Malpractice Claims.

Although the plaintiff ultimately lost the appeal, the Tennessee Supreme Court has granted some small relief from the onerous pre-suit procedural requirements of Tennessee’s 2011 healthcare liability law holding that only substantial compliance with the provision directing a plaintiff to furnish potential defendants with a medical authorization will be required, Stevens v. Hickman Community Health Care Services, Inc. No. M2012-00582-SC-S09-CV (11/25/13).  However the plaintiff, a widow in a wrongful death action, gave proper pre-suit notice, but failed to provide any authorization other than her own for release of the records, and therefore failed to even substantially comply.

 

“Tenn. Code Ann. § 29-26-121(a) establishes six separate requirements that serve related yet ultimately distinct goals. First, Tenn. Code Ann. § 29-26-122(a)(1) contains an express notice requirement that requires plaintiffs to give defendants written notice that a potential healthcare liability claim may be forthcoming. In contrast, Tenn. Code Ann. §§ 29-26-122(a)(2)(A)-(C) facilitate early resolution of healthcare liability claims by requiring plaintiffs to advise defendants who the plaintiff is, how to reach him or her, and how to contact his or her attorney. Lastly, the requirements of Tenn. Code Ann. § 29-26-121(a)(2)(D) and Tenn. Code Ann. § 29-26-121(a)(2)(E) serve an investigatory function, equipping 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.”

 

“A plaintiff’s less-than-perfect compliance with Tenn. Code Ann. § 29-26-121(a)(2)(E), however, should not derail a healthcare liability claim. Non-substantive errors and omissions will not always prejudice defendants by preventing them from obtaining a plaintiff’s relevant medical records. Thus, we hold that a plaintiff must substantially comply, rather than strictly comply, with the requirements of Tenn. Code Ann. § 29-26-121(a)(2)(E).”

 

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