It provides that no cause of action exists against a public institution of higher education "for any loss, damage, injury, or death arising from COVID-19 … unless the claimant proves by clear and convincing evidence that the loss, damage, injury, or death was proximately caused by an act or omission of the institution or its employee or agent constituting gross negligence or willful misconduct." In addition, under the new law, the heightened pleadings requirements from the Tennessee COVID-19 Recovery Act are extended to actions against postsecondary and higher education providers.Section 7 resolved the previous disagreement between the legislative branches on retroactivity by establishing that the new legislation applies to all claims arising from COVID-19 except when a complaint or civil warrant was filed on or before August 3, 2020, or when notice for the claim was given or satisfied, pursuant to either Tenn. Code Ann. § 9-8-402 or Tenn. Code Ann. § 29-26-121(a)(3), on or before August 3, 2020. The new law is scheduled to repeal on July 1, 2022, but it will continue to apply to any claims occurring before that date and pursuant to the noted exceptions.Comparison of the Tennessee Law to Proposed Federal LegislationIn a previous Client Alert, we summarized the provisions of the SAFE TO WORK Act, federal legislation that is presently pending before the Senate Judiciary Committee.

[3] Consequently, in one of his prior publications, this author has characterized the HCLA’s pre-suit notice requirements as “red tape with fangs.”[4]One pre-suit notice requirement of the HCLA—codified at Tenn. Code Ann. § 29-26-121(a)(2)(E)—compels plaintiffs to provide prospective medical malpractice defendants with “[a] HIPAA compliant medical authorization permitting the provider receiving the notice to obtain complete medical records from each other provider being sent a notice.”[5] In Bray v. Khuri—a wrongful death case involving a patient who committed suicide while receiving in-patient psychiatric care—Tennessee’s Court of Appeals held that the medical authorization form that the decedent’s surviving spouse had provided in her pre-suit notice package had not been HIPAA-compliant.

On June 3, 2016, the Tennessee Court of Appeals, in Caldwell v. Baptist Memorial Hospital, upheld a defense counsel’s state statutory right to conduct ex parte interviews with a non-party treating physician in the context of a health care liability action. In 2012, the Tennessee legislature enacted Tenn. Code Ann. § 29-26-121(f) as part of the Health Care Liability Act. The statute permits the voluntary disclosure of a plaintiff’s protected health information from non-party treating physicians in an ex parte setting if the doctor has “relevant” information and certain use and dissemination restrictions are met.

Email Daniel Horwitz at daniel.a.horwitz@gmail.com.Like ScotBlog? Follow along on Twitter @Scot_Blog or on facebook at https://www.facebook.com/scotblog.org[1]See Tenn. Code Ann. § 29-26-121(a)(4) (“Compliance with subdivision (a)(3)(B) shall be demonstrated by filing a certificate of mailing from the United States postal service stamped with the date of mailing and an affidavit of the party mailing the notice establishing that the specified notice was timely mailed by certified mail, return receipt requested.”).[2] Daniel A. Horwitz, The Law of Unintended Consequences: Avoiding the Health Care Liability Act Booby Trap, Nashville Bar Journal (June 2015), available athttp://scotblog.org/2015/06/tennessee-supreme-court-should-correct-lower-courts-erroneous-interpretations-of-its-decision-in-stevens-restore-sanity-to-health-care-liability-cases/.

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 permanently whenever a health care liability plaintiff fails to comply with a pre-suit notice requirement. In the author’s view, the Tennessee Supreme Court should remedy this unintended consequence by holding that a plaintiff’s substantial compliance with the pre-suit notice requirements 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).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.