Roberta Piper, For Herself As Spouse And Widow Of Merle Piper v. Cumberland Medical Center
E2016-00532-COA-R3-CV
| Tenn. Ct. App. | Jan 20, 2017Background
- Roberta Piper (plaintiff) filed a wrongful-death health-care-liability suit on behalf of her late husband, asserting defendants (two physicians and Cumberland Medical Center) failed to provide life-saving treatment after mistakenly listing the decedent as a Jehovah’s Witness.
- Tennessee law (Tenn. Code Ann. § 29-26-121) requires 60-day pre-suit written notice that must include, among other things, (D) a list of all providers being sent notice and (E) a HIPAA-compliant medical authorization permitting providers to obtain records from one another.
- Piper attached undated postal receipts and an undated notice letter to the complaint but did not include the statutorily required list of other providers or a HIPAA authorization with the notices; she conceded those omissions on appeal.
- Defendants moved to dismiss under Tenn. R. Civ. P. 12.02 for failure to comply with § 29-26-121; the trial court granted dismissal, finding noncompliance with (D) and (E) fatal to the claims.
- On appeal, Piper argued (1) a medical authorization previously provided to counsel constituted substantial compliance and (2) omissions should be excused as "excusable neglect;" the trial court rejected these contentions and Piper waived any extraordinary-cause argument by not raising it below.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Compliance with § 29-26-121(a)(2)(D) (list of other providers) | Piper conceded she did not list all providers but argued overall compliance was sufficient | Defendants argued omission prevented them from identifying co-defendants and hindered defense preparation | Court held failure to include list was significant, prejudiced defendants, and was fatal to claim |
| Compliance with § 29-26-121(a)(2)(E) (HIPAA-compliant authorization) | Piper argued she previously provided a medical authorization to defendants and that should constitute substantial compliance | Defendants argued the authorization was not compliant because it only allowed disclosure to Piper’s counsel and did not permit providers to obtain records from one another or use records to defend | Court held the March 1, 2015 authorization was noncompliant (limited to counsel) and did not satisfy statute; substantial compliance not shown |
| Excusing noncompliance (extraordinary cause / excusable neglect) | Piper urged excusable neglect due to inexperienced counsel and circumstances surrounding decedent’s death | Defendants urged strict application of statutory standard and no extraordinary cause shown | Court found Piper waived any extraordinary-cause argument by failing to raise it below; noted statute allows excuse only for extraordinary cause and prior precedent rejects death or attorney oversight as extraordinary |
Key Cases Cited
- Stevens ex rel. Stevens v. Hickman Comm. Health Care Servs., Inc., 418 S.W.3d 547 (Tenn. 2013) (pre-suit HIPAA authorization and notice requirements serve investigatory function; substantial compliance allowed but limited authorizations insufficient)
- Thurmond v. Mid-Cumberland Infectious Disease Consultants, PLC, 433 S.W.3d 512 (Tenn. 2014) (allows substantial compliance with affidavit requirements of § 29-26-121)
- Arden v. Kozawa, 466 S.W.3d 758 (Tenn. 2015) (content and affidavit requirements of § 29-26-121 are directory and may be satisfied by substantial compliance)
- Myers v. AMISUB (SFH), Inc., 382 S.W.3d 300 (Tenn. 2012) (procedural framework: defendant moves under Rule 12.02 to challenge pre-suit compliance; burden shifts to plaintiff to show compliance or extraordinary cause)