Three Issues to Keep an Eye On

In the last issue of The Journal, I discussed whether T.C.A. §29-26-121(a)(5) required a potential defendant to correct a misnomer contained in the required notice, or to allege comparative fault. Staying on the theme of T.C.A. §29-26-121, this article will discuss three issues related to that statute facing Tennessee’s Appellate Courts that will impact the Practitioner’s handling of HCLA claims. This is not an exhaustive list, nor is it intended to be. The discussion below will not speculate on how the various courts will rule on these issues. The purpose of the article is to apprise the Practitioner of these issues, which likely will impact his or her defense of future HCLA claims.


Our Courts’ interpretation of the Pre-Suit Notice requirement has evolved over the years. Prior to the Supreme Court’s decision in Stevens ex re Stevens v. Hickman Community Health Care Services, Inc., 418 S.W.3d 547 (Tenn. 2013),[i] Tennessee Courts regularly required strict compliance with T.C.A. §29-26-121(a)’s pre-suit notice requirements.[ii] Stevens first announced the substantial compliance rule with regard to compliance with section 121(a), holding that where strict compliance with “a particular statutory provision is essential to avoid prejudicing an opposing litigant,” then the statutory provision will be deemed mandatory and strict compliance required. Id. at 555. After considering the purposes served by the HIPAA-compliant medical authorization, Stevens concluded that a plaintiff cannot satisfy this content requirement merely by providing potential defendants with actual notice of a potential claim, but stopped short of interpreting the statute as demanding strict compliance. Id. Rather, Stevens held that “[n]on-substantive errors and omissions” and “[a] plaintiff's less-than-perfect compliance” with [subsection] 29–26–121(a)(2)(E) will “not derail a healthcare liability claim” so long as the medical authorization provided is “sufficient to enable defendants to obtain and review a plaintiff's relevant medical records,” in reaching the conclusion that “a plaintiff must substantially comply, rather than strictly comply, with the requirement[ ] of [subsection] 29–26–121(a)(2)(E).[iii] Id.[iv]

This background is relevant to two issues pending in both the Court of Appeals and the Supreme Court. The Supreme Court has granted permission to appeal in Bray v. Khuri, No. W2015-00397-COA-R3-CV, 2015 WL 7775316 (Tenn.Ct.App. Dec. 3, 2015). In Bray, the plaintiff provided a medical authorization form as part of her pre-suit notice, but the defendant argued that the authorization form “was deficient because it did not include a description of the information to be used, and it failed to identify which health care providers were authorized to make the requested disclosures.” Id. at *1. In response, the plaintiff argued that the language of T.C.A. § 29-26-121(a)(2)(E)—i.e., “permitting the provider receiving the notice to obtain complete medical records from each other provider being sent a notice”—exempted her from providing a form because the defendant was the only provider to whom notice was sent. Id. (quoting T.C.A. § 29-26-121(a)(2)(E)).

On appeal, the Bray court addressed “the issue of whether [the plaintiff] was required to provide a HIPAA-compliant authorization form when [the defendant] was the only medical provider receiving the notice.” Id. at *3. Citing the holding in Stevens, as well as its own holding in Hughes v. Henry County Medical Center,[v] the Bray court found that the goal of T.C.A. § 121(a)(2)(E) is to provide the means necessary to evaluate the substantive merits of a health care liability action by enabling early access to relevant medical records. Id. With this goal in mind, the Bray court held:

[Plaintiff] solely providing notice of a potential lawsuit through a letter to the health care provider does not “equip [Defendant] with the actual means to evaluate the substantive merits of [Plaintiff’s] complaint.” Without a HIPAA-compliant authorization form, the full purpose of the statute becomes frustrated. While [Defendant] may have physically possessed Decedent’s records, he was unable to review them with his attorney in order to evaluate the merits of Appellant’s claim. Because we cannot construe a statute in such a way that would violate “the obvious intention of the legislature,” . . . we conclude that [Defendant] was required to provide a HIPAA-compliant authorization.

Id. (emphasis added and internal citations omitted). Based on her failure to provide a HIPAA-compliant medical authorization or a valid reason to excuse her noncompliance, the Bray court found that the plaintiff failed to substantially comply with T.C.A. § 29-26-121(a)(2)(E) and affirmed the trial court’s dismissal of the case. Id. at *4-5.


Substantial versus strict compliance is also at issue in Clary v. Miller and Cookeville Reg. Med Cntr., No. M2016-00794-COA-R3-CV. In Clary, the Middle Division will consider an issue of first impression, i.e. whether a plaintiff is required to strictly comply with the pre-suit notice requirements when suing a governmental entity.

Any statute waiving sovereign immunity—in whole or in part—is subject to strict construction. See, e.g. Cunningham v. Williamson Cnty. Hosp. Dist., 405 S.W.3d 41, 43 (Tenn. 2013). On the issue of sovereign immunity, courts may deviate from strict construction and interpretation only when the Legislature has clearly evinced a specific intent for a more liberal construction and interpretation, and this intent must be set forth in the statute in question. See, e.g. id, 45. As noted above, with respect to whether the notice itself has been served, courts interpreting T.C.A. § 29-26-121 have applied a strict compliance standard, finding that the provision of the notice is mandatory. With respect to the contents of the notice, courts have applied a substantial compliance standard, finding that the contents of the notice are merely directory, rather than mandatory, but must nevertheless be sufficient to satisfy the statute’s purpose of allowing potential defendants to evaluate the merits of a potential claim.

In health care liability actions involving governmental entities, however, a substantial compliance standard would be inappropriate because any waiver of a governmental entity’s immunity for alleged tortious conduct must be explicit, strictly construed, and confined to its express terms. Thus, the Cary Court will consider whether a plaintiff must strictly comply with every aspect of section 121(a) when filing against a governmental entity.


The Tennessee Supreme Court is considering the constitutionality of allowing counsel for defendant health care providers to conduct interviews with the Plaintiff’s treating health care providers. The precise issue in front of the Court is whether section 121(f) violates the Separation of Powers Doctrine of Article II, sections 1 and 2 of the Tennessee Constitution. In 2006, the Supreme Court held that ex parte communications between defense counsel and non-party treating physicians in medical malpractice actions[vi] violated the implied covenant of confidentiality between patients and physicians. Alsip v. Jonson City Medical Center, 197 S.W.3d 722 (Tenn. 2006). In 2012, the Tennessee General Assembly amended T.C.A. §29-26-121 to add subsection (f) to allow defense counsel to conduct ex parte interviews with non-party treating health care providers.

Arguing that by requiring the trial court to grant a petition for a qualified protective order allowing defendants to conduct ex parte communications with a plaintiff’s treating health care providers, Plaintiff in Willeford v. Klepper, et al contends the Legislature’s enactment of subsection (f) impermissibly divests the judiciary of its broad inherent authority over court proceedings in violation of the Separation of Powers doctrine. Following a denial of the Motion in the trial Court and a the Middle Division’s rejection of Plaintiff’s T.R.A.P. 9 application for interlocutory review, The Tennessee Supreme Court has granted Plaintiff’s T.R.A.P. 11 Motion and will consider the issue.

[i] See also, Foster v. Chiles, No. E2012-01780-COA-R3, 2013 WL 3306594 (Tenn. Ct. App. June 27, 2013), which overturned the dismissal of a healthcare liability action where plaintiff had fully complied with the requirements of Tenn. Code Ann. § 29-26-121 in an action that was non-suited and re-filed without proof of service of the required notice.

[ii] See, e.g. Vaughn v. Mountain States Health Alliance, No. E2012-1042-COA-R3-CV, 2013 WL 81703 (Tenn. Ct. App. March 5, 2013), where the Eastern Section of the Court of Appeals dismissed plaintiff’s healthcare liability action as untimely for plaintiff’s failure to include a HIPAA complaint medical authorization with his pre-suit notice. See also, Thurmond v. Mid-Cumberland Infectious Disease Consultants, PLC, No. M2012-02270-COA-R3-CV, 2013 WL 1798960, *3 (Tenn. Ct. App. April 25, 2013) (holding that Plaintiff’s failure to strictly comply with the requirements of Tenn. Code Ann. § 29-26-121(a)(4) required the suit be dismissed). The Supreme Court ultimately reversed the holdings in both Vaughn (Davis ex rel Davis v. Ibach, 465 S.W.3d 570 (Tenn. 2015)) and Thurmond (433 S.W.3d 512 (Tenn. 2014)).

[iii] This particular subsection requires that a Plaintiff provide a “HIPAA compliant medical authorizationpermitting the provider receiving notice to obtain complete medical records from each other provider being sent a notice.”

[iv] See also, e.g. Thurmond v. Mid-Cumberland Infectious Disease Consultants, PLC, 433 S.W.3d 512 (Tenn. 2014). (holding that where pre-suit notice was timely served, insisting upon strict compliance with the statute requiring the filing of an affidavit “with the complaint,” Tenn.Code Ann. § 29–26–121(a)(3), is not “essential to avoid prejudicing an opposing litigant.” Stevens, 418 S.W.3d at 555. As already stated, Defendants have not made any claim of prejudice resulting from Plaintiff's failure to file the affidavit with the complaint. Thus, substantial compliance with the statutory affidavit requirement will suffice.” Id., at 520-21.

[v] No. W2014-01973-COA-R3-CV, 2015 WL 3562733, at *5 (Tenn. Ct. App. June 9, 2015).

[vi] All medical malpractice actions are now referred to a Health Care Liability Actions. T.C.A. §29-26-101.