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Haines v. The Metropolitan Government of Nashville

United States District Court, M.D. Tennessee, Nashville Division

July 22, 2019

SHERRY HAINES, Next of Kin of Deceased, SCOTT HAINES, Plaintiff,
v.
THE METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE, et al. Defendants.

          MEMORANDUM OPINION

          WAVERLY D. CRENSHAW, JR. CHIEF UNITED STATES DISTRICT JUDGE.

         After the filing of the Second Amended Complaint (Doc. No. 61), Correct Care Solutions (now known as Wellpath LLC (“Wellpath”)) and Calista Doll filed Motions to Dismiss (Doc. Nos. 68, 72) because of Plaintiff's alleged failure to comply with the requirement of the Tennessee Health Care Liability Act (“Health Care Act”), Tenn. Code Ann. § 29-26-101, et. seq. Under the Health Care Act, anyone “asserting a potential claim for health care liability shall give written notice of the potential claim to each health care provider that will be named a defendant at least sixty (60) days before the filing of a complaint based upon health care liability in any court of this state.” Id. § 29-26-121(a). That notice “shall include . . . [a] HIPPA compliant medical authorization permitting the provider receiving the notice to obtain complete medical records from each other provider being sent the notice.” Id. The Act further provides:

If a complaint is filed in any court alleging a claim for health care liability, the pleadings shall state whether each party has complied with subsection (a) and shall provide the documentation specified in subdivision (a)(2). The court may require additional evidence of compliance to determine if the provisions of this section have been met. The court has discretion to excuse compliance with this section only for extraordinary cause shown.

Id. § 29-26-121(b) (2015).

         Wellpath and Doll argue that Plaintiff did not meet these requirements. Among other things, she does not allege in the body of the Second Amended Complaint that she complied with subsection 121(a), as required by Section 121(b), and failed to attach HIPAA compliant medical authorizations to her pleadings, as also required by that subsection. Additionally, according to Wellpath and Doll, the medical authorizations that were attached to the Motion to Amend did not meet the Act's requirements because the form Plaintiff provided (1) indicates that records may be released to her attorney; and (2) fails to identify with specificity the provider who is permitted to release the records. In response to both motions, Plaintiff does not claim strict compliance with the requirements of the Health Care Act. Instead, she claims that there was substantial compliance, and that neither Wellpath nor Doll have suffered any prejudice as the result of any alleged deficiencies.

         I.

         The Tennessee Supreme Court “has concluded that providing pre-suit notice to potential defendants is the ‘essence' of the [Health Care Act] and, thus, compliance with the pre-suit notice requirement of subsection (a)(1) is mandatory.” Clary v. Miller, 546 S.W.3d 101, 105 (Tenn. Ct. App. 2017) (citing Myers v. AMISUB (SFH), Inc., 382 S.W.3d 300, 309 (Tenn. 2012)). “Nothing short of strict compliance is acceptable.” Id. “But, in the absence of prejudice to the opposing party, substantial compliance with other requirements in the statute is enough to avoid dismissal of the complaint.” Id. Thus, for example, “[s]o long as a health care defendant is not prejudiced by a plaintiff's deviations from the statutorily prescribed method of service . . . substantial compliance with these statutory requirements will suffice.” Arden v. Kozawa, 466 S.W.3d 758, 764 (Tenn. 2015). Likewise, “substantial compliance with the statutory affidavit requirement will suffice.” Thurmond v. Mid-Cumberland Infectious Disease Consultants, PLC, 433 S.W.3d 512, 521 (Tenn. 2014).

         Although “Tennessee law is less than settled concerning the question of substantial compliance, ” Rush v. Jackson Surgical Assocs. PA, No. W201601289COAR3CV, 2017 WL 564887, at *4 (Tenn. Ct. App. Feb. 13, 2017) (citations omitted), the Tennessee Supreme Court in Stevens ex rel. Stevens v. Hickman Cmty. Health Care Servs., Inc., 418 S.W.3d 547, 556 (Tenn. 2013) stated that, in looking at substantial compliance, “a reviewing court should consider the extent and significance of the plaintiff's errors and omissions and whether the defendant was prejudiced by the plaintiff's noncompliance, ” and noted that “[n]ot every non-compliant HIPAA medical authorization will result in prejudice.” Id. There, the medical authorization was “woefully deficient” in several respects. Id. “First, and most importantly, by permitting disclosure only to plaintiff's counsel, plaintiff's medical authorization failed to satisfy the express requirement of Tenn. Code Ann. § 29-26-121(a)(2)(E) that a plaintiff's medical authorization “permit[ ] the provider receiving the notice to obtain complete medical records from each other provider being sent a notice.” Id. Second, plaintiff's medical authorization failed to satisfy at least three of the six compliance requirements mandated by HIPAA. Specifically, the “authorization lacked a description of the medical information to be disclosed, 45 C.F.R. § 164.508(c)(1)(i); failed to state the individuals or organizations authorized to disclose the decedent's medical records, 45 C.F.R. § 164.508(c)(1)(ii); and failed to specify the type of information authorized to be used or disclosed, 45 C.F.R. § 164.508(c)(1)(iv).” Id. The court found these failures, collectively, established plaintiffs did not substantially comply with the Health Care Act and, accordingly, dismissal was appropriate.

         In this case, the HIPPA medical authorizations were, as already noted, deficient, but they were not as deficient as the one in Stevens. Further, the Second Amended Complaint does not indicate on its face whether the Health Care Act has been complied with. Despite these deficiencies, the Court finds that Plaintiff has substantially complied with the Health Care Act, neither Wellpath nor Doll have been prejudiced, and dismissal would be manifestly unjust given the underlying facts and the procedural history of this case.

         II.

         On November 6, 2018, Plaintiff as the next of kin of Scott Haines (“Haines”) filed suit against the Metropolitan Government of Nashville (“Metro”), the Metropolitan Nashville Police Department (“Metro Police”), the Davidson County Sheriff's Office, the Davidson County Emergency Management Services (“EMS”), Officer Seth Vaughn (“Vaughn”), Wellpath (then Core Civic), and unnamed John Doe Defendants. An Amended Complaint added Deputy Michael Harvey (“Harvey”) as a Defendant.

         The underlying facts of both complaints were the same: (1) on May 5, 2018, Haines' family called for medical assistance after he had ingested methamphetamine; (2) Metro Police and EMS arrived on the scene; (3) Vaughn told Plaintiff that “it was a police matter”; (4) Haines was forcibly removed from the ambulance and taken to the Hill Detention Center (“HDC”); (5) upon arrival at HDC, no medical care was provided, even though deputies knew that Haines had ingested methamphetamine, (6) around 7:50 p.m. Haines began to complain of chest pains; (7) another ambulance was dispatched to HDC at 8:00, but was turned away by jail staff because the nurses there were assuming care; (8) around 8:40 p.m., Haines was sprayed with a chemical agent, and forcibly restrained by Harvey because Haines was allegedly “faking a seizure”; (9) at approximately 8:45 p.m. another call was placed to EMS; and (10) Haines was pronounced dead at approximately 10:30 p.m. Based upon these events, Plaintiff sued all Defendants for wrongful death; Metro, the Sheriff's Office, Harvey and the John Doe Defendants for excessive force and denial of medical care; and Vaughn, Harvey and Wellpath for the denial of medical care.

         Wellpath filed a Motion to Dismiss on January 31, 2019 for failure to comply with the requirements of the Health Care Act. (Doc. No. 34). Plaintiff voluntarily dismissed her action as to that Defendant the same day. On February 15, 2019, Plaintiff sent certified letters to both Wellpath and Doll “pursuant to the provisions of Tennessee Code Annotated §§ 29-26-121 and §§ 29-26-122” [sic], in order to provide “notice of a potential claim against you . . . regarding the acts or omissions of you or one of your employees or agents.” (Doc. Nos. 68-1 & 72-1). The letter then set forth a brief summary of Plaintiffs' allegations, and attached the HIPPAA releases containing ...


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