A Recap of the Major Amendments in the Tennessee Supreme Court During 2015

2015: A Year of Significant Opinions and Statutory Amendments

As 2016 unfolds, we will follow upcoming opinions by the Tennessee Supreme Court and the Court of Appeals. Of high interest will be the Court of Appealsdecision on whether the Qualified Protective Order statute is preempted by HIPAA. With a continued awareness and understanding of what is on the horizon in the long-term care industry with laws and regulations, organizations can incorporate relevant changes into quality improvement and litigation risk management programs. 

2015 Tennessee Statutory Amendments

 “Sue the Right Defendant” – Amendments to TCA § 29-26-101, 102, 121(a)(5)

The Tennessee Legislature amended the Tennessee Health Care Liability Act so an action may be brought only against the licensee, the licensee's management company, the licensee's managing employees, or an individual caregiver who provided direct healthcare services, whether an employee or independent contractor.  A passive investor will not be liable.  A healthcare liability action against any other individual or entity may be brought only pursuant to the procedures now outlined in the statute.  The legislature amended TCA §29-26-101 to include definitions for licensee, management company, and passive investor.  The act applies to causes of action arising on or after April 24, 2015.  Therefore, only the licensee and the management company can be sued in an action that arises on or after that unless the circumstances exist as described in sub- section (b).

What This Means

Through these statutory revisions, a plaintiff can no longer sue every entity associated with a facility.  The lawsuit will be limited to the licensee and the management company rather than including any and all passive investors in the company including administrators, percentage stakeholder, parent companies etc….  

Identifying Co-Defendants From the Start

The Tennessee Legislature also amended T.C.A. § 29-26-121(a)(5) and relates to the comparative fault of other providers. The amendment provides that if a person, entity, or health care provider receives notice of a potential claim for health care liability, 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.  This section was enacted to resolve situations in which a defendant does not advise Plaintiff of another at fault party of potential liability until well into the action and then the Plaintiff must amend the complaint to add the comparatively at fault party to the action.

What This Means

The statute applies to causes of action accruing on or after April 24, 2015.  In light of the thirty (3) day limit, it is essential that the claim forming the basis for the Notice of Intent be assessed immediately to identify other potential at fault parties. 

Discussion of Relevant Causation/Standard of Care Opinions in Ex Parte Interviews

In April 2015, the Tennessee legislature replaced T.C.A § 29-26-121(f)(2) regarding Qualified Protective Orders to include language to clarify that a defendant may speak with the health care provider regarding relevant information including opinions concerning compliance with or breach of standard of care.  The prior statutory language did not make this issue clear. 

The statute now includes the following language, which was effective upon enactment April 24, 2015, “Any healthcare provider's disclosure of relevant information in response to a court order under this section, including, but not limited to, protected health information, opinions as to the standard of care of any defendant, compliance with or breach of the standard, and causation of the alleged injury, shall be deemed a permissible disclosure under Tennessee law.”  The amended statute goes into effect immediately. 

What This Means

Qualified Protective Orders are essential to equal the playing field for healthcare providers and the development of the case. In most states, counsel for the facility, hospital or nursing home cannot speak with the medical director or any other health care provider, who is not employed by the facility, outside the presence of Plaintiff’s counsel due to HIPAA privacy concerns. Through this statute, counsel can speak to a patient/resident’s health care providers outside the presence of plaintiff’s counsel without violating HIPAA if the Qualified Protective Order complies with the statute.  The April 2015 Amendments clarify the scope of information which may discussed during the ex parte interviews with third party medical providers.  The ability to speak to third party medical providers can have significant impact on a case because the third party medical provider may have the perspective and information needed to show that the facility followed the standard of care.  The statutory revisions allow for defense counsel to discuss standard of care and causation within the ex parte interviews, which were not clearly defined previously. 

On the Horizon:  Looking Ahead to 2016

In 2016, the Tennessee Court of Appeals will hear and decide whether the Qualified Protective Order (QPO) statute is preempted by HIPAA.  Caldwell v. Baptist Memorial Hospital, et. al., No. W2015-01076-COA-R10-CV (Tenn. Ct. App. Appeal Filed June 11, 2015).  If the Court of Appeals finds that the QPO statute is contrary to HIPAA or becomes an obstruction to complying with HIPAA, the court will find that the QPO is not permitted and counsel can no longer conduct ex parte interviews with third party providers, which are instrumental to the defense of long-term care lawsuits.  This case will be closely monitored and the case is set for oral argument on February 16, 2016 and we expect an opinion in the coming months.  We are hopeful the court will hold that the QPO does not violate HIPAA and continue to permit this essential part of the litigation process.  The important thing to remember is to produce all clinical and other relevant information to your counsel immediately, which allows counsel to obtain a QPO that much more quickly. 

I welcome you, the HEALTHCARE HEROES, to join us in New York City, April 1, 2016, for the fourth annual Litigation Risk and Defense Strategies for Long-Term Care & Assisted Living Providers, Insurers, and Brokers Conference.  The fourth annual conference will begin with a Conference Reception, followed by a Networking Dinner, Thursday, March 31.  The educational session portion of the conference will begin Friday, April 1.  The annual event provides engaging educational sessions and peer group discussions focused on identifying and minimizing risk in the long-term care arena and covering the continuum of provider services.  The robust platform provides industry professionals, including administrators, clinical professionals, facility owners and operators, risk managers, and insurance agents and brokers, with the resources and tools necessary to simultaneously reduce risk and ensure legal and regulatory compliance within their organization.  Attendees will gain knowledge of risk exposure and the importance of effective risk management strategies in today’s long-term care environment.  For more information, please visit http://www.hatlawfirm.com/news/tag/event

Rebecca Adelman