The Dos & Don’ts If You Receive a Notice of Intent to Sue Letter

By JENNIFER HARRISON

A “notice of intent” (NOI) letter from a patient (or patient’s next of kin if a wrongful death matter) puts healthcare providers, medical groups, hospitals, etc. on notice of a potential lawsuit against you and maybe others. This article focuses on the NOI letter to the provider and/or the provider’s group. An NOI letter is a statutory requirement in Tennessee, and the letter is most often drafted and signed by the patient’s attorney. Two purposes of the NOI letter are to give the provider(s) notice of a potential lawsuit and an opportunity (time) to evaluate the patient’s allegations for possible early settlement. A patient must wait at least 60 days from the NOI letter before a formal lawsuit can be filed in court. If the NOI letter (and any attachment) meets the legal requirements, the original statute of limitations to file a lawsuit is extended by 120 days. The attachment is usually a HIPAA-compliant medical authorization that permits the provider to obtain medical records from each provider being sent a notice.

What follows are some helpful tips if you receive an NOI letter.

DO:

Read it IMMEDIATELY.
PROMPTLY give everything you received to your office administrator, who should immediately send it to the insurance company…OR
(You) PROMPTLY send everything you received to the insurance company.
Understand that Tennessee statutory clocks are now ticking.
Request your preferred healthcare liability attorney if you have one. Insurance companies usually either: 1. assign your preferred attorney or choose one for you; 2. investigate the allegations; or 3. wait until the patient files a formal lawsuit before assigning an attorney.
WAIT to access the patient’s records unless/until given permission to access YOUR records at the clinic where you work. This permission will come from your insurance claims expert or your attorney.
Re-read the tip immediately above. You may be dying to review those records, but there is a very good reason for this tip.
(Assuming you have been given permission to access YOUR records and/or you have a recollection of your care and treatment) Be prepared to have a substantive, confidential conversation with your insurance claims person and your attorney. You are the expert who provided care and treatment to the patient, so you are in the best position to assist with the initial investigation.
Be patient while the NOI letter makes it way to your defense team.
Be responsive and cooperative with the professionals on your defense team. They are trying to help you navigate this initial process.
Expect follow up correspondence from an insurance claims person, your group’s administrator, and/or your attorney.
Ask questions of your insurance claims person and/or attorney. There are no stupid questions (and if there are, they’re confidential; it’s ok). Please ask questions.
Let it go for now. This is often difficult for some providers, but it is usually most beneficial to you if you can mentally box up and shelve this situation while your defense team is being assembled to best protect your interests.

DO NOT:

Ignore that letter!
Delay getting the NOI letter to your office administrator or insurance company.
Discuss, write, text, email, send a pigeon, use Morse code, etc. regarding the contents of the NOI letter or the patient’s care and treatment with anyone (including other providers listed in the NOI letter) except the insurance company and/or your attorney until further notice.
ACCESS ANY RECORD THAT IS NOT YOURS AND IS NOT AT THE CLINIC. For example: if your care and treatment is only documented in a hospital record, do NOT access that hospital’s EMR. This is a common situation. Discuss with your attorney.
Make any changes, revisions, addendums, or other entries to the patient’s medical record.
Attempt to contact the patient or the patient’s attorney.
Take it personally or lose sleep over this (at least not for long). Talk with your insurance claims person and/or your attorney about the process. Those conversations are valuable.
Think the NOI letter means you are soon to lose your professional license, practice privileges, reputation as an excellent healthcare provider, job, livelihood, sports car, kid’s tuition, etc. NOI letters do not always evolve into lawsuits. Please go back to breathing.
Use any email, text, or other means of corresponding with your claims person or your attorney if that mode of communication is not private to you.

My lighthearted approach in offering these tips should not be perceived as minimizing their importance. They are very important. An NOI letter, what you do with it, and what you do in response to it (all of which typically happens before you speak with your attorney) usually dictates initial investigations and legal strategies and activities. Tennessee has laws that govern what a patient must do before filing a lawsuit against a healthcare provider. Your attorney will have an opinion on whether the patient followed the law and whether the NOI letter and/or the attachment should be challenged in court. Some healthcare liability lawsuits get dismissed early on these technical challenges. Hopefully, these tips will help you help your attorney if a technical challenge is on the horizon. And if there is no technical challenge, at least it won’t be because you didn’t read this article.

Jennifer Harrison is the Managing Partner in the Memphis law office of Hall Booth Smith, PC. She is a former CVICU nurse and occupational health nurse. She has a Master of Law in Trial Advocacy and is licensed to practice law in Tennessee, Arkansas and Mississippi. She is also a Certified Civil Mediator in Tenn. and Miss. She has been recognized as one of The Best Lawyers in America, Peer Reviewed by Martindale-Hubbell, and as a Tennessee Super Lawyer. Earlier this year, she was recognized and highlighted in the Memphis Business Journal as “Women Who Lead.” After more than 20 years protecting healthcare providers’ interests, she still enjoys integrating medicine and law and utilizing her combined experiences to be a staunch and zealous advocate for her clients.

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