ALETA A. TRAUGER, District Judge.
Pending before the court is the Motion to Dismiss filed by the defendant (Docket No. 5), to which the plaintiff has filed a response (Docket No. 7), and in support of which the defendant has filed a reply (Docket No. 11). For the reasons discussed herein, the defendant's motion will be denied.
The plaintiff, Tracie M. Truth, is suing the defendant, Dr. Eric Eskioglu, for medical malpractice.
The plaintiff alleges that the defendant placed the screws negligently, driving them through the pedicles of her spine and causing her to suffer increased pain. She further alleges that the defendant hid his mistakes from her afterward by telling her that the screw placement was "excellent." (Docket No. 1 ¶ 41.) The plaintiff filed her Complaint in this court on December 10, 2010, asserting claims for negligence, lack of informed consent, and intentional misrepresentation.
The defendant has filed a Motion to Dismiss, pursuant to Federal Rule of Civil Procedure 12, arguing that the plaintiff failed to submit a "certificate of good faith" with her Complaint, as required by Tennessee law. (Docket No. 6 at 3-4.)
The Federal Rules of Civil Procedure require plaintiffs to provide "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed R. Civ. P. 8(a)(2). In deciding a motion to dismiss under Rule 12(b)(6), the court will "construe the complaint in the light most favorable to the plaintiff, accept its allegations as true, and draw all reasonable inferences in favor of the plaintiff." Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir.2007); Inge v. Rock Fin. Corp., 281 F.3d 613, 619 (6th Cir.2002). "[A] complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, ____ U.S. ____, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).
Because this is a diversity action, the substantive law of Tennessee applies. Biegas v. Quickway Carriers, Inc., 573 F.3d 365, 374 (6th Cir.2009). In Tennessee, malpractice causes of action are governed by the Medical Malpractice Act (the "Act"), Tenn.Code Ann. §§ 29-26-115 to-122.
Section 121 of the Act provides that, before filing suit, plaintiffs must send a notice to prospective defendants. Specifically, "[a]ny person . . . asserting a potential claim for medical malpractice shall give written notice of the potential claim to each health care provider that will be a named defendant at least sixty (60) days before the filing of a complaint." Tenn. Code Ann. § 29-26-121(a)(1). The notice must include, among other things, "[a] HIPAA compliant medical authorization permitting
That section further provides:
Id. § 29-26-121(d)(1).
Section 122 requires a plaintiff to file a "certificate of good faith" with his or her complaint:
Id. § 29-26-122(a). In the certificate, the plaintiff must state that he or she has consulted with a medical expert who has provided a written statement confirming that there is a good-faith basis for the plaintiff's action. Id. § 29-26-122(a)(1)-(2).
Finally, subsection (c) of section 122 provides:
Id. § 29-26-122(c).
Here, the plaintiff did not file a certificate of good faith with her initial Complaint. The defendant argues that, because of this, her claims should be dismissed with prejudice. (Docket No. 6 at 3-4.)
The plaintiff did, however, send the required pre-suit notice to the defendant before filing this action. According to the affidavit of the plaintiff's counsel, Barry Weathers, the notice stated, in relevant part:
(Docket No. 7, Ex. 1 ¶ 3.)
The attached HIPAA authorization stated:
(Id. (brackets in original).)
Weathers's affidavit states that "it was obvious to [him] that [the defendant] would have no access to the records absent proper Authorization." (Id.) Thus, Weathers "anticipated" that the defendant would obtain a complete copy of the record and provide a copy to the plaintiff. (Id.) The defendant did not furnish any medical records to the plaintiff.
According to Weathers, Dr. David McCord, the surgeon who subsequently treated the plaintiff, believes that the plaintiff was the victim of medical malpractice. (Id. ¶ 4.) Dr. McCord, however, "want[ed] to review the entire chart before providing a written report about the malpractice and the harms resulting therefrom" (id.), which prevented the plaintiff from filing a certificate of good faith.
Concurrently with her response to the defendant's Motion to Dismiss, the plaintiff has filed a First Amended Complaint attaching a certificate of good faith.
The plaintiff argues that, under section 122(a) and (c), she was excused from filing the certificate with her initial Complaint because the defendant failed to provide copies of the Vanderbilt medical records, as she requested. (Docket No. 7 at 2.) In addressing the parties' arguments, the court must construe and apply sections 121 and 122 of the Act. The Tennessee Supreme Court recently synthesized its rules regarding statutory interpretation:
The court finds that both the plain text and the purpose of the Medical Malpractice Act indicate that the plaintiff was excused from filing a certificate of good faith with her Complaint. Section 122(a) excuses a plaintiff's failure to file a certificate if she can show "that the failure was due to the failure of the [defendant] to timely provide copies of the [plaintiff's] records as provided in § 29-26-121." Tenn.Code Ann. § 29-26-122(a). Section 121, in turn, entitles "all parties" to a malpractice action "to obtain complete copies of the [plaintiff's] medical records from any [named defendant]." Id. § 29-26-121(d). To obtain such records, the plaintiff need only send "a legally authorized written request" to the defendant. Id.
Here, the notice and the authorization that the plaintiff sent to Dr. Eskioglu can be reasonably construed as a written request for the plaintiff's complete medical file. The notice explicitly stated that the purpose of the HIPAA authorization was to allow the defendant to obtain the plaintiff's "complete medical records" from Vanderbilt (Docket No. 7, Ex. 1 ¶ 3), and the authorization explicitly requested that the defendant provide copies of all records he obtained (id. at 4). The clear implication was that the plaintiff desired a copy of her complete Vanderbilt medical records. The defendant does not argue that he was unable to discern that the plaintiff was requesting her complete medical file.
Furthermore, Weathers's affidavit sufficiently shows that the failure to submit a certificate of good faith was due to the defendant's failure to provide the plaintiff with a copy of her complete medical records.
Although the plain text of the Medical Malpractice Act compels this conclusion, the court notes that this outcome is consistent with the purpose of the statute. There is little case law explaining the purpose of the 2008 amendments to the Act, but Jenkins v. Marvel, 683 F.Supp.2d 626 (E.D.Tenn.2010), contains a relatively in-depth discussion of the Tennessee legislature's intent. Jenkins looked to a 2007 Tennessee Senate Republican Caucus newsletter, which stated that "`[t]he [amended Act] is designed to reduce the number of frivolous lawsuits filed in Tennessee each year . . . by requiring early evaluation and streamlined disclosure of medical records.'" Id. at 639; see also Howell v. Claiborne & Hughes Health Ctr., 2010 WL 2539651, at *14-16, *16, 2010 Tenn.App. LEXIS 400, at *42-46, 48-49 (Tenn.Ct.App. June 24, 2010) (citing and adopting Jenkins's discussion of the Act's purpose). Jenkins also examined cases discussing Texas's similar statutory scheme and concluded that Tennessee's Act was intended "to provide notice to potential parties . . . to facilitate early resolution of cases through settlement" and "to dispose of frivolous suits before any party incurred substantial litigation expenses." 683 F.Supp.2d at 639.
Here, the plaintiff did, in fact, consult with a doctor before filing her suit to make sure that she had a good-faith basis for maintaining the action. Dr. McCord's letter makes this clear. (See Docket No. 10 at 11.) The letter also makes it clear that, based on the records possessed by the plaintiff, Dr. McCord "believe[s] there is a basis for a medical malpractice case against Dr. Eskioglu" and believes that "there is strong evidence of malpractice." (Id.) Thus, the plaintiff's suit is not the type of frivolous action that the Medical Malpractice Act seeks to prevent. Allowing the plaintiff's action to go forward, despite her failure to file a timely certificate of good faith, is not inconsistent with the overarching purpose of the Act.
Accordingly, the court will not dismiss the plaintiff's malpractice claims.
For all of the reasons discussed herein, the defendant's Motion to Dismiss will be denied.
An appropriate Order will enter.
This argument suggests that the defendant has, in fact, received the plaintiff's medical records from Vanderbilt. Notably, he has submitted no evidence to support his assertion that Vanderbilt is obligated to defend or indemnify him.
Ultimately, the court need not address the merit of the defendant's interpretation of the relevant HIPAA regulations. There was no way for the plaintiff to know the specifics of the relationship between the defendant and Vanderbilt. It is enough that the plaintiff reasonably believed that the defendant, who is no longer affiliated with Vanderbilt, would require the HIPAA authorization to obtain her medical records. The notice and the authorization, together, made it clear that the plaintiff sought a copy of her complete medical records. This was sufficient to constitute a "request" and to trigger a duty to produce such records.
But the current certificate of good faith does not actually certify that Dr. McCord has provided the plaintiff with a written statement, as required by the Medical Malpractice Act. Tenn.Code Ann. § 29-26-122(a)(1), (2). Instead, it states that Dr. McCord will not provide a written statement until he can review the plaintiff's complete medical records.
Nevertheless, it appears to the court that Weathers must have held a good-faith belief that the defendant would enjoy better access to the plaintiff's records or would somehow have an easier time obtaining them. Nothing indicates that Weathers was acting in bad faith or employing procedural machinations to purposely delay the filing of the certificate of good faith. Indeed, before the Complaint was filed, the plaintiff had already consulted with a doctor who was willing to opine that she had suffered malpractice. There was no reason, then, for Weathers to improperly delay the filing of the certificate.
Here, the plaintiff's misrepresentation claim is largely premised on the defendant's allegedly false statement that he was experienced in the type of surgery that he recommended to the plaintiff. (See Docket No. 1, ¶¶ 33-40.) The plaintiff alleges that, absent this misrepresentation, she would not have consented to the surgery. (Id. ¶ 38.) The main inquiries, then, are whether the defendant misstated his prior experience and how this affected the plaintiff's decision. Because these issues are within the province of a lay jury, this aspect of the misrepresentation claim would survive. Barnett, 2010 WL 5289669, at *5, 2010 Tenn.App. LEXIS 785, at *16-18.
