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The Law of Unintended Consequences: Avoiding the Health Care Liability Act Booby Trap

5 Nashville Bar Journal 14 (June 2015)

12 Pages Posted: 12 Mar 2015 Last revised: 23 Dec 2015

Daniel A. Horwitz

Independent

Date Written: March 12, 2015

Abstract

In 2009, interest groups representing both healthcare providers and injured patients worked together to draft and pass several amendments to Tennessee's medical malpractice statute that aimed to improve medical malpractice litigation for all involved. As a result of these reforms, however, the 2009 amendments unexpectedly caused several cases to be dismissed without prejudice on grounds unrelated to the substantive merits of plaintiffs' claims due to their attorneys' technical procedural missteps.

What has gone largely unrecognized, however, is a fatal litigation trap lurking beneath the surface of Tennessee's Health Care Liability Act that currently functions to transform even dismissals without prejudice into permanent bars to recovery. Specifically, based on the Tennessee Court of Appeals’ misreading of the Tennessee Supreme Court’s decision in Stevens ex rel. Stevens v. Hickman Community Health Care Services, Inc., the HCLA has been interpreted in such a way that it can be manipulated by defense practitioners to preclude recovery forever whenever a health care liability plaintiff fails to comply with a pre-trial notice requirement. This paper argues that the Tennessee Supreme Court should remedy this unintended consequence by holding that a plaintiff’s substantial compliance with the provisions of Tenn. Code Ann. § 29-26-121(a) as a whole is sufficient to earn the 120-day extension afforded by § 29-26-121(c).

Keywords: Tennessee Medical Malpractice, Tennessee Health Care Liability Act, Substantial Compliance Doctrine, Tenn. Code Ann. § 29-26-121

Suggested Citation

Horwitz, Daniel A., The Law of Unintended Consequences: Avoiding the Health Care Liability Act Booby Trap (March 12, 2015). 5 Nashville Bar Journal 14 (June 2015). Available at SSRN: https://ssrn.com/abstract=2577156 or http://dx.doi.org/10.2139/ssrn.2577156

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