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The litigation trap at issue—explained in detail below—stems from asymmetrical knowledge as to the applicable statute of limitations in health care liability cases under circumstances when a plaintiff’s pre-trial notice letter does not substantially comply with one or more of the pre-suit notice requirements created by the 2009 amendments. First, in order to be able to file a health care liability complaint at all, a plaintiff must comply with all six of the HCLA’s pre-suit notice requirements.10 After complying with these requirements, a plaintiff then earns a 120-day extension to the HCLA’s one-year statute of limitations.11 Thus, in every health care liability action, plaintiffs’ attorneys operate under the assumption that they have 485 days— rather than 365 days—within which to file a complaint. The problem, however, is that if a plaintiff’s attorney has erred in complying with one or more of the HCLA’s pre-suit notice requirements, then he almost invariably will not discover his error until the initial one-year statute of limitations has expired.12 The reason for this is simple: defense attorneys do not typically make a habit of alerting plaintiffs when they have erred (nor should they),13 and if a plaintiff’s attorney were going to fastidiously examine his pre-trial notice letter for technical errors, then it seems safe to assume that he would have done so before sending it, rather than afterward. As a result, plaintiffs who mistakenly fail to comply with one or more of the HCLA’s pre-suit notice requirements will almost always be operating under the erroneous belief that the statute of limitations has been extended by 120 days, when in fact it has not.14 In contrast, however, any defense attorney who notices that a plaintiff’s pre-suit notice letter is non-compliant will be aware that the plaintiff actually has not earned HCLA’s 120-day extension of the statute of limitations, and that the one-year statute of limitations still remains in effect.

Under such circumstances, in order to transform a dismissal without prejudice into one that “effectively operate[s] as a dismissal with prejudice because [the p] laintiff’s claim would be time-barred,”15 defense practitioners need only pretend to go through the motions of discovery, engage in mock settlement negotiations, or otherwise delay calling attention to a plaintiff’s pre-suit notice error until the plaintiff’s one-year filing deadline has elapsed. Thereafter, any subsequent dismissal—even a dismissal without prejudice—will function as a dismissal with prejudice because any re-filed complaint will necessarily fall beyond the applicable statute of limitations.16 Several published cases provide examples of such tactics being utilized in practice by defense attorneys in an effort to manufacture effective dismissals with prejudice.17 As one panel of the Court of Appeals has declaimed, however: “allowing a defendant to participate in discovery and negotiations while waiting to raise technical objections is not consistent with the purposes of the statutory requirements for filing medical malpractice lawsuits.”18 To illustrate how the situation described above might play out in practice, consider the following hypothetical scenario: A plaintiff suffers a serious injury as a result of a hospital’s grossly negligent medical treatment on January 1, 2015. On September 1, 2015, the plaintiff’s attorney attempts to comply with the HCLA’s six pre-suit notice requirements by sending the hospital a detailed letter providing notice of the plaintiff’s potential claim. Upon sending this letter, the plaintiff’s attorney believes that his client’s one-year filing deadline has been extended by 120 days, and that the statute of limitations will now expire on May 1, 2016. After receiving the plaintiff’s pre-suit notice letter, however, the hospital realizes that it is technically deficient because the HIPAA authorization form included within it does not contain a written description of the attorney’s authority to act on the plaintiff’s behalf.19

If the applicable statute of limitations is not extended by 120 days under these unexceptional circumstances, then there is a strong chance that the plaintiff’s otherwise-meritorious lawsuit will become time-barred before the plaintiff’s attorney becomes aware of his mistake. Specifically, because the plaintiff’s attorney will be operating under the erroneous impression that he has until May 1, 2016—rather than January 1, 2016—to file his client’s complaint, he will not recognize the urgency of his need to file, and the applicable one-year statute of limitations will very likely expire before he does so. Consequently, under these circumstances, the hospital’s interest will not be to ask the plaintiff’s attorney to fix his mistake by furnishing a HIPAAcompliant authorization form. Instead, the hospital’s interest will be to provide preliminary discovery, to drag out mock settlement negotiations, or to engage in some other form of deliberate delay in the hopes that the plaintiff’s attorney will not discover his error in time to fix it. Moreover, because the plaintiff’s attorney usually will not become aware of his error until the defendant points it out in a motion to dismiss, the hospital’s tactics will probably succeed—resulting in the plaintiff’s eventual complaint being dismissed without prejudice, yet time-barred upon re-filing. Notably, a version of this scenario actually took place in Stevens itself. In that case, a health care liability defendant ignored a plaintiff’s obviously non-compliant HIPAA authorization form for more than seven months after receiving it.20 Thereafter, however—and, of course, only after the plaintiff’s one-year statute of limitations had expired—the defendant emerged to insist that the plaintiff’s complaint must be dismissed because her medical authorization form was not HIPAA-compliant.21 Given that the Stevens plaintiff had indeed failed to furnish a HIPAA-compliant authorization form, the defendant ultimately Continued on Page 16 

Nashville Bar Journal - June 2015

15

June 2015  

Monthly Publication of the Nashville Bar Association

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