SUE EVERYONE OR CORRECT A MISNOMER:
Navigating Tenn. Code Ann. §29-26-121(a)(5) and interpreting its requirements
Bill Rieder, Spears, Moore, Rebman & Williams, P.C.
In 2015, the General Assembly enacted Tenn. Code Ann. §29-26-102, and amended Tenn. Code Ann. § 29-26-121 to add subsection 121(a)(5). Subsection 121(a)(5) states:
In the event a person, entity, or health care provider receives notice of a potential claim for health care liability pursuant to this subsection (a), the person, entity, or health care provider shall, within thirty (30) days of receiving the notice, based upon any reasonable knowledge and information available, provide written notice to the potential claimant of any other person, entity, or health care provider who may be a properly named defendant.[i]
Subsection 121(a)(5)’s meaning is ambiguous because the phrase “a properly named defendant” is capable of conveying more than one meaning.[ii] Does the statute require a health care provider receiving notice to identify other potentially at fault health care providers, or simply to correct a misnomer contained in the pre-suit notice? Perhaps a more troublesome question for the defense lawyer is: if the statute requires the health care provider to allege comparative fault, what are the ramifications for not doing so? In the absence of a judicial interpretation of this statute, this article takes the position that subsection 121(a)(5) requires a health care provider receiving pre-suit notice to correct a misnomer within thirty days.
Statutory Construction
When courts are called upon to construe a statute, their goal is to give full effect to the General Assembly’s purpose … [T]he courts must always begin with the words that the General Assembly has chosen … [and] give these words their natural and ordinary meaning … [by] constru[ing] these words in the context in which they appear in the statute and in light of the statute’s general purpose.
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[W]hen the courts encounter ambiguous statutory text – language that can reasonably have more than one meaning – [they] must resort to the rules of statutory construction and other external sources to ascertain the General Assembly’s intent and purpose.
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When courts are attempting to resolve a statutory ambiguity, the rules of statutory construction authorize them to consider … public policy, historical facts preceding or contemporaneous with the enactment of the statute being construed, … the background and purpose of the statute… the legislative history of the statute and the entire statutory scheme in which the statute appears.[iii]
Furthermore, “when statutes are enacted at the same legislative session … the rule of in pari materia ‘is of peculiar force....”’[iv] Thus, the fact that subsection 121(a)(5) was enacted in the same legislative session as Tenn. Code Ann. § 29-26-102 “is of peculiar force.”
Interpreting Subsection 121(a)(5)
Consistently, Tennessee Courts have held “the requirements of Tenn. Code Ann. §§ 29-26-121(a)(2)(D) and (a)(2) 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.”[v]
It is significant that the General Assembly found it necessary, in each iteration of Tenn. Code Ann. § 29-26-121, to allow the potential defendant sixty (60) days to investigate the claim before allowing the potential plaintiff to file suit.[vi] In fact, in its most recent iterations, the General Assembly has codified that the statute of limitations with regard to the individual health care provider receiving notice is tolled for one hundred twenty (120) days, thus articulating both the ceiling (120-days) and floor (60-days) for a health care provider to investigate a claim against it before suit is filed.
Construing the words of subsection 121(a)(5) in the context and in light of the statute’s general purpose, therefore, indicates that this subsection was not enacted to compel potential defendants to investigate the claim, and be in a position to allege comparative fault against “any other person, entity, or health care provider who may be a properly named defendant” in half the time they are afforded to investigate the potential claim against themselves. Such a construction would be antithetical to the statute’s general purpose.
Moreover, potential defendant health care providers can only assemble and examine the potential claimant’s medical records from providers specifically authorized by the potential claimant.[vii] Reading subsection 121(a)(5) to require providers to allege comparative fault against “any other person, entity, or health care provider who may be a properly named defendant” would require it to, at minimum: (i) discover all of the potential claimant’s health care providers; (ii) obtain from the potential claimant an appropriate HIPAA compliant authorization to obtain records from each; (iii) compile records from each; and (iv) analyze said medical records in order to make an informed decision on “who may be a properly named defendant” – in less than thirty (30) days. This is less time than the General Assembly has allowed even the parties to the action to provide records.[viii]
Logically, then, it seems that subsection 121(a)(5) is intended to require the recipient of pre-suit notice to correct what it knows to be a misnomer. Interpreting subsection 121(a)(5) as requiring the recipient of pre-suit notice to identify other potentially at fault providers would create rather than avoid conflicting statutory requirements in the same statutory section, and would jeopardize rather than facilitate[] the harmonious operation of law.[ix]
Reading Subsection 121(a)(5) and Section 102 in Pari Materia
Once enacted, Senate Bill 818 and House Bill 1285 were codified at Tenn. Code Ann. § 29-26-102. In the course of enacting this legislation, Representative Lunberg and Senator Kelsey co-sponsored the amendment to these bills, respectively HA 0264 and SA 0375[x], which, when enacted, were codified at subsection 121(a)(5). This fact is of paramount importance because the language of section 102 is the basis for the ambiguous language in subsection 121(a)(5), i.e. the “proper defendant” language. Section 102 states, in pertinent part:
(a) Except as provided in this section, a health care liability action against a licensee may be brought only against the licensee, the licensee’s management company, the licensee’s managing employees, or an individual caregiver who provided direct health care services …
(b) A cause of action may not be asserted against an individual or entity other than the licensee, the licensee's management company, the licensee’s managing employees, or an individual caregiver who provided direct health care services …
(c) When determining the statute of limitations in a health care liability action, the date of the original pleading shall control regardless of whether there are amended pleadings or substituted or added parties.
When interpreting what “a properly named defendant” means in the context of a health care liability action, it is imperative to remember that subsection 121(a)(5) would not exist in the absence of section 102. Section 102 codifies and defines “Defendants in a health care liability action”[xi] as “licensee, licensee’s management company, licensee’s managing employees, or an individual caregiver who provided direct health care services.” Reading the symbiotic code sections in pari materia produces but one logical conclusion: subsection 121(a)(5)’s “properly named defendant” means “the licensee, licensee’s management company, licensee’s managing employees, or an individual caregiver who provided direct health care services,” as defined by section 102. Accordingly, a correct and logical reading of subsection 121(a)(5) compels the conclusion that it is intended to require the recipient of pre-suit notice to correct what it knows to be a misnomer.
The plain language of the statute limits a health care provider’s obligation under subsection 121(a)(5) to notifying the potential claimant of “who [else] may be a proper party” “based on any reasonable knowledge and information available.” Assuming they are not identified on the notice of intent, it is, at best, impracticable, and more likely impossible, to think that a health care provider could ascertain the identities of the potential claimant’s other health care providers within thirty days of receiving notice, much less be able to ascertain their identities and compile their medical records and examine those medical records in any meaningful way. This occurs in the discovery process. Certainly, such “information” is not “available” to the health care provider simply by virtue of receiving pre-suit notice. And, certainly, it is not “reasonable” for a particular health care provider to have “knowledge” of any other health care provider who may be causally liable for the potential claimant’s alleged injuries simply by virtue of receiving pre-suit notice. Therefore, even under a plain language reading of subsection 121(a)(5), the language “who may be a properly named defendant” cannot logically be intended to compel health care providers to identify any other health care provider who may be causally liable for the potential claimant’s alleged injuries within thirty days of receiving notice of a potential claim. Rather, this language is intended to compel a health care provider to correct a misnomer with regard to the actual “licensee, licensee’s management company, licensee’s managing employees, or an individual caregiver who provided direct health care services.”
If faced with this issue, one should also be mindful of the legislative history of section 102 and subsection 121(a)(5). In discussing the need for subsection 121(a)(5), Senator Kelsey stated: “If you are an incorrectly named defendant, but you know who those properly named defendants should be, then within thirty-days of receiving notice of a potential claim against you, then you have got to provide the name of any person who may be a proper defendant.”[xii]
Finally, one should remember that Tenn. Code Ann. §29-26-122(b) and (c) provides the framework for one health care provider to allege comparative fault against another. Adherence to subsection 122(b) and (c)’s provisions allows a health care provider defendant the opportunity to examine the records from all of the plaintiff’s health care providers, not just those health care providers who receive pre-suit notice, such that it can meaningfully examine the facts and the complete records obtained in discovery and make an informed decision on the issue of comparative fault.
[i] This particular subsection applies to all causes of action arising on or after April 24, 2015.
[ii] Browder v. Morris, 975 S.W.2d 308, 311 (Tenn. 1998) (“A statute is ambiguous if it is capable of conveying more than one meaning.”).
[iii] Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 526-28 (Tenn. 2010) (emphasis added) (internal citations and footnotes omitted).
[iv] Myers v. AMISUB (SFH), Inc., 382 S.W.3d 300, 311 (Tenn. 2012) (quoting Hill v. Roberts, 142 Tenn. 215, 217 S.W. 826, 828 (1920)).
[v] Stevens ex rel. Stevens v. Hickman Cmty. Health Care Servs., Inc., 418 S.W.3d 547, 554 (Tenn. 2013); Thurmond v. Mid-Cumberland Infectious Disease Consultants, PLC, 433 S.W.3d 512, 520 (Tenn. 2014) (“[t]he information required by subsections 29-26-121(a)(2)(D)–(E) enables potential defendants to evaluate the merits of a potential plaintiff’s claim and to gauge the comparative fault of other potential defendants receiving notice.”); see also DePue v. Schroeder, No. E2010-00504-COAR9CV, 2011 WL 538865, at *7 (Tenn. Ct. App. Feb. 15, 2011); Howell v. Claiborne and Hughes Health Ctr., 2010 WL 2539651 (Tenn.Ct.App. June 24, 2010).
[vi] Because Plaintiff in DePue filed suit only fifty-three (53) days after giving the potential defendant pre-suit notice, thus not allowing sufficient time to investigate the claim, her suit was dismissed. DePue, 2011 WL 538865, at *9.
[vii] Section 121 requires that the potential claimant’s pre-suit notice 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(a)(2)(E).
[viii] Tenn. Code Ann. §29-26-121(d)(1) (“All parties in an action covered by this section shall be entitled to obtain complete copies of the claimant's medical records from any other provider receiving notice. A party shall provide a copy of the specified portions of the claimant's medical records as of the date of the receipt of a legally authorized written request for the records within thirty (30) days thereafter.”).
[ix] Lee Med., Inc., 312 S.W.3d at 527 (“the courts’ goal is to construe a statute in a way that avoids conflict and facilitates the harmonious operation of law.”).
[x] SB819/SA0375; HB1285/HA0264.
[xi] Lee Med., Inc., 312 S.W.3d at 528 (“When courts are attempting to resolve a statutory ambiguity, the rules of statutory construction authorize them to consider … the caption of the act …”).
[xii] http://tnga.granicus.com/MediaPlayer.php?view_id=278&clip_id=10797 beginning at the 1:26:50 mark. See also, Senator Kelsey’s commentary beginning at the 1:28:06 mark (the purpose of 121(a)(5) is to “streamline litigation.”); http://tnga.granicus.com/MediaPlayer.php?view_id=278&clip_id=10708&meta_id=208347 at 5:25:11; http://tnga.granicus.com/MediaPlayer.php?view_id=278&clip_id=10708&meta_id=208347 beginning at 5:55:10; http://tnga.granicus.com/MediaPlayer.php?view_id=278&clip_id=10708&meta_id=208347 beginning at 5:30:00.