                                                                                            11/28/2018
                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                                 August 21, 2018 Session

              JENNIFER PARKS V. REBECCA A. WALKER, M.D. ET AL.
                    Appeal from the Circuit Court for Knox County
                        No. 1-278-16       Kristi Davis, Judge
                           ___________________________________

                             No. E2017-01603-COA-R3-CV
                           ___________________________________

This is a health care liability action. Plaintiff gave written pre-suit notice of her claim to
potential defendants. See Tenn. Code Ann. § 29-26-121(c) (2018). She then filed her
complaint. Defendants filed motions to dismiss. After a hearing, the trial court held that
plaintiff failed to substantially comply with the requirements of the notice statute by
failing to provide a HIPAA-compliant medical authorization, pursuant to Tenn. Code
Ann. § 29-26-121(a)(2)(E). It entered an order granting defendants’ motions to dismiss.
Plaintiff appeals. We affirm.

        Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
                            Affirmed; Case Remanded

CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which THOMAS R.
FRIERSON, II, J., joined. D. MICHAEL SWINEY, C.J., filed a dissenting opinion.

Eric B. Foust, Dan Channing Stanley, and F. Clinton Little, Knoxville, Tennessee, for the
appellant, Jennifer Parks.

Heidi A. Barcus, Knoxville, Tennessee, for the appellees, Rebecca A. Walker, M.D. and
Parkwest Women’s Specialists, PLLC.

Broderick L. Young and F. Michael Fitzpatrick, Knoxville, Tennessee, for the appellees,
Covenant Health and Parkwest Medical Center.

                                         OPINION

                                              I.

        On February 19, 2015, plaintiff had a robotic-assisted hysterectomy. She
subsequently suffered complications causing her pain and injury. On February 19, 2016,
plaintiff provided pre-suit notice of her potential claim to defendants. See Tenn. Code

                                             -1-
Ann. § 29-26-121. On June 17, 2016, plaintiff filed her complaint. On July 15, 2016,
defendants Parkwest Medical Center and Covenant Health filed their joint motion to
dismiss. On July 20, 2016, defendants Rebecca A. Walker, M.D. and Parkwest Women’s
Specialists, PLLC filed their own joint motion to dismiss. Defendants advance similar
arguments in their respective motions.

       45 C.F.R. § 164.508(b)(2)(ii) states that an authorization is invalid if it “has not
been filled out completely, with respect to an element described in paragraph (c) of this
section;” paragraph (c) refers to the core elements required for a valid authorization
enumerated in 45 C.F.R. § 164.508(c)(1). Defendants argue that the medical
authorizations provided by plaintiff are invalid, because they fail to include a core
element. Defendants specifically point to plaintiff’s failure to meet 45 C.F.R. §
164.508(c)(1)(iv), which requires that the authorization include:

                A description of each purpose of the requested use or
                disclosure. The statement ‘at the request of the individual’ is a
                sufficient description of the purpose when an individual
                initiates the authorization and does not, or elects not to,
                provide a statement of the purpose.

45 C.F.R. § 164.508(c)(1)(iv). The authorization plaintiff provided to defendants
included the following section: 1


            Nam MO                            Encowita#                  Daft:

          , For the purpose a _____



As shown above, the portion labeled “for the purpose of” was left blank when provided to
defendants. Defendants contend that, by leaving this section blank, plaintiff provided
defendants with an authorization that was not filled out completely with respect to a core
element, thus rendering the authorization non-HIPAA compliant. See 45 C.F.R. §
164.508(c)(1)(iv).

       Defendants also argue that the medical authorizations attached to the first pre-suit
notice did not comply with Tenn. Code Ann. § 29-26-121, because they were not
HIPAA-compliant medical authorizations “permitting the provider receiving the notice to
obtain complete medical records from each other.” See Tenn. Code Ann. § 29-26-
121(a)(2)(E) (emphasis added). The authorizations provided to defendants only
authorizes them “to release, use or disclose” plaintiff’s health records to the other
      1
          Actual image of blank section on plaintiff’s pre-suit notice HIPAA authorization.

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providers listed in the authorization. Defendants argue that plaintiff has therefore failed to
provide them with authorizations permitting defendants to “obtain” plaintiff’s medical
records. See Tenn. Code Ann. § 29-26-121(a)(2)(E).

       On September 23, 2016, a hearing was held on defendants’ motions to dismiss. On
July 13, 2017, the trial court entered an order granting the motions to dismiss. The trial
court held that

              [t]he failure to set forth the purpose of the authorization,
              combined with the authorization’s failure to allow a provider
              to obtain records from another provider, demonstrates a lack
              of substantial compliance with the statutory requirements and
              that the defendants have been prejudiced as a result.

Plaintiff appeals arguing that the trial court erred in granting defendants’ motions to
dismiss.

                                             II.

       The defendants have properly employed a Tenn. R. Civ. P. 12.02 motion
challenging the plaintiff’s compliance with Tenn. Code Ann. § 29-26-121. Myers v.
AMISUB (SFH), Inc. 382 S.W.3d 300, 307 (Tenn. 2012). As Myers noted,

              [t]he proper way for a defendant to challenge a complaint’s
              compliance with Tennessee Code Annotated section 29-26-
              121 and Tennessee Code Annotated section 29-26-122 is to
              file a Tennessee Rule of Procedure 12.02 motion to dismiss.
              In the motion, the defendant should state how the plaintiff has
              failed to comply with the statutory requirements by
              referencing specific omissions in the complaint and/or by
              submitting affidavits or other proof. Once the defendant
              makes a properly supported motion under this rule, the
              burden shifts to the plaintiff to show either that it complied
              with the statutes or that it had extraordinary cause for failing
              to do so. Based on the complaint and any other relevant
              evidence submitted by the parties, the trial court must
              determine whether the plaintiff has complied with the
              statutes. If the trial court determines that the plaintiff has not
              complied with the statutes, then the trial court may consider
              whether the plaintiff has demonstrated extraordinary cause for
              its noncompliance…

Myers v. AMISUB (SFH), Inc., 382 S.W.3d 300, 307 (Tenn. 2012).

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        The issues before us pertain to matters of law. A health care liability plaintiff's
pre-suit notice shall include “[a] HIPAA compliant medical authorization permitting the
provider receiving the notice to obtain complete medical records from each other
provider being sent a notice.” Tenn. Code Ann. § 29–26–121(a)(2)(E). The specific
purpose of subsection (a)(2)(E) is not to provide defendants with notice of a potential
claim; rather, as the Supreme Court noted in Stevens ex rel. Stevens v. Hickman
Community Health Care Services, Inc., 418 S.W.3d 547 (Tenn. 2013), the subsection
“serves to equip defendants with the actual means to evaluate the substantive merits of a
plaintiff's claim by enabling early access to a plaintiff's medical records.” Stevens, 418
S.W.3d at 555. “Because HIPAA itself prohibits medical providers from using or
disclosing a plaintiff's medical records without a fully compliant authorization form, it is
a threshold requirement of the statute that the plaintiff's medical authorization must be
sufficient to enable defendants to obtain and review a plaintiff's relevant medical
records.” Id. (citing 45 C.F.R. § 164.508(a)(1)).

                                            III.

        Plaintiff argues, in her response to defendants’ motions to dismiss, that the
deficiencies in her authorizations are “merely…hyper technicali[ties]” advanced by
defendants in order “to avoid civil responsibility for [p]laintiff’s injuries based on a
purely procedural issue.” While the Supreme Court has held that “[a] plaintiff's less-than-
perfect compliance with Tenn. Code Ann. § 29–26–121(a)(2)(E)...should not derail a
healthcare liability claim,” it concluded that a plaintiff must still substantially comply
with the requirements of Tenn. Code Ann. § 29–26–121(a)(2)(E). Stevens, 418 S.W.3d at
555. In determining whether a plaintiff has substantially complied with the statute, “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.”
Id. at 556.

        “Defective authorizations” are defined in 45 C.F.R. § 164.508(b)(2). An
authorization is not valid if, among other things, it “has not been filled out completely,
with respect to an element described by paragraph (c) of this section.” See 45 C.F.R. §
164.508(b)(2). A “description of each purpose of the requested use or disclosure” is a
core element. See 45 C.F.R. § 164.508(c)(iv). As noted above in this opinion, plaintiff’s
authorization was not complete, and it did not include a description of the purpose of the
requested use or disclosure, as required. Therefore, we affirm the trial court’s holding that
the omission of a core element constituted a lack of substantial compliance with the
statutory requirements.

       Next, as noted above, the authorization sent to each defendant authorizes them to
“release, use or disclose” the health records of plaintiff to the other named providers.
The authorization then lists the providers to whom the entity is authorized to release the

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records. Plaintiff alleges that this language is sufficient to allow any one of the named
parties to request plaintiff’s medical records from any of the other listed parties and to
obtain the medical records. The trial court disagreed holding that “the plain language of
the form does not allow this.” The trial court stated that

              [i]t only allows [doctor] to release, use, or disclose medical
              records. Thus, if Dr. Walker sends this form to another
              provider and asks that provider to send the plaintiff’s medical
              records, the form simply does not provide authorization for
              them to do so. The plaintiff’s response is that each provider
              can look at the list of providers and should know that each of
              them also received their own authorization form allowing
              them to release, use or disclose the material information.
              However, this is not what the law requires. In order to be
              effective, the authorization form must allow a medical
              provider to obtain records from the other providers.

We affirm the trial court’s holding that plaintiff’s authorization is not sufficient to enable
defendants to obtain plaintiff’s medical records.

       Lastly, plaintiff argues that defendants were obligated to inform plaintiff of any
omissions or to at least attempt to utilize the flawed authorization before alleging they
were prejudiced by the deficiencies. We disagree. As noted above, the proper means to
challenge plaintiff’s compliance with Tenn. Code Ann. § 29-26-121 is through a Tenn. R.
Civ. P. 12.02 motion. This Court has previously rejected the argument that the onus
should be placed on defendants to test the sufficiency of the authorization, or even to
complete an inadequate authorization. See, e.g., Roberts v. Prill, 2014 WL 2921930, at
*6. Furthermore, our Court noted in J.A.C.:

              Several Tennessee decisions have rejected the proposition
              that a health care liability defendant has a duty to assist a
              plaintiff achieve compliance or to test whether an obviously
              deficient HIPAA form would allow the release of records.
              See, e.g., Stevens, 418 S.W.3d at 559 (“Plaintiff—not
              Defendants—was responsible for complying with the
              requirements of Tenn. Code Ann. § 29–26–121(a)(2)(E).”);
              Dolman v. Donovan, No. W2015-00392-COA-R3-CV, 2015
              WL 9315565, at *5 (Tenn. Ct. App. Dec. 23, 2015) (rejecting
              the plaintiffs' argument that the medical providers could not
              have been prejudiced because they never attempted to obtain
              medical records with the deficient medical authorization
              provided), perm. app. denied (Tenn. May 6, 2016). Similarly,
              our courts have rejected the notion that a health care liability

                                             -5-
             defendant needs to inform a plaintiff that the provided
             authorization form is deficient before filing a motion to
             dismiss. Stevens, 418 S.W.3d at 559; Vaughn v. Mountain
             States Health Alliance, No. E2012-01042-COA-R3-CV,
             2013 WL 817032, at *4 (Tenn. Ct. App. Mar. 5, 2013)
             (rejecting the argument that the defendants should have
             contacted plaintiff's counsel prior to an action being filed
             against them in order to inform plaintiff's counsel that the
             requirements of Tennessee Code Annotated section 29–26–
             121 had not been met), overruled on other grounds by Davis
             v. Ibach, 465 S.W.3d 570 (Tenn. 2015).

J.A.C., 542 S.W.3d at 514–15. As this Court has recently reiterated

             [d]efendants are not required to attempt to use a medical
             authorization to gather patient medical records, if the
             defendant believes the authorizations to be defective. It
             therefore follows that a defendant’s claim of prejudice is not
             waived by failing to attempt to use or otherwise ‘test’ an
             allegedly defective authorization.

Roberts v. Wellmont Health Sys., No. E201700845COAR9CV, 2018 WL 3302178, at *6
(Tenn. Ct. App. July 5, 2018). Accordingly, we follow our precedent in holding that
plaintiff’s argument that defendants cannot claim prejudice, because they did not attempt
to obtain the records with the provided authorizations and receive a corresponding denial,
fails.

       In sum, forms that are markedly inadequate do not actually authorize or facilitate
any disclosure. See, e.g., J.A.C. by & through Carter v. Methodist Healthcare Memphis
Hosps., 542 S.W.3d 502, 513 (Tenn. Ct. App. 2016), appeal denied (Mar. 9, 2017);
Roberts v. Prill, No. E2013-02202-COA-R3CV, 2014 WL 2921930, at *5 (Tenn. Ct.
App. June 26, 2014). We hold that the medical authorizations in this case do not
substantially comply with the provisions of Tenn. Code Ann. § 29–26–121. Accordingly,
we affirm.




                                           -6-
                                          IV.

       We affirm the judgment of the trial court granting defendants’ motions to dismiss.
This case is remanded to the trial court for collection of costs assessed below. Costs on
appeal are taxed to the appellant, Jennifer Parks.



                                         _______________________________
                                         CHARLES D. SUSANO, JR., JUDGE




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