                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                              September 17, 2009 Session

               TERESA GARD v. DENNIS HARRIS, M.D., ET AL.

                    Appeal from the Circuit Court for Knox County
                     No. 3-114-05    Wheeler Rosenbalm, Judge


               No. 2008-01939-COA-R3-CV - FILED MARCH 11, 2010


Plaintiff filed a complaint alleging false light invasion of privacy and defamation after her
physician sent a letter she considered defamatory. After finding that plaintiff consented to
the disclosure by signing a consent form, the trial court granted summary judgment in favor
of the defendants. We affirm.


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

J OHN W. M CC LARTY, J., delivered the opinion of the Court, in which C HARLES D. S USANO,
J R., and D. M ICHAEL S WINEY, JJ., joined.

Arthur F. Knight, III, Knoxville, Tennessee, for the appellant, Teresa Gard.

Edward G. White, II, and Joshua J. Bond, Knoxville, Tennessee, for the appellees, Dennis
Harris, M.D. and HealthStar Physicians, P.C.

                                        OPINION

                                   I. BACKGROUND

       In June 2002, Teresa Gard was employed by Sedgwick Claims and Management
Services, Inc. (“Sedgwick”). During the course and scope of her employment, she fell and
suffered a back injury. She came under the treatment of various physicians and surgeons.
Subsequently, she filed a workers’ compensation claim in Knox County Chancery Court. St.
Paul Fire & Marine Insurance Co. (“St. Paul”) provided workers’ compensation benefits to
Ms. Gard, and Concentra Integrated Services, Inc. (“Concentra”) contracted with St. Paul to
provide workers’ compensation case management services for Ms. Gard’s case.
        Ms. Gard began treatment with Dr. Dennis Harris on February 4, 2004. She continued
as his patient until Dr. Harris terminated the physician/patient relationship in a letter dated
November 11, 2004. Ms. Gard’s last office visit was October 15, 2004, and her next visit
was scheduled for November 12. In the interim, however, Dr. Harris viewed a compact disc
provided to him by either St. Paul or Concentra. Thereafter, Dr. Harris informed Ms. Gard
that he would no longer provide her with medical care. Dr. Harris’s letter to Ms. Gard
contains the subject matter of her complaint. He also sent the letter to Dr. Edward Workman,
the physician that referred Ms. Gard to Dr. Harris; Heidi Howard, the workers’ compensation
case manager, and Janie Jones; a representative of Concentra. In Ms. Gard’s opinion, the
letter suggests that she may be addicted to narcotics. Ms. Gard contends that the letter
contains false and defamatory statements.

       According to Ms. Gard, she was not abusing opiates and only took the medication as
prescribed. She notes that, at the time of letter, Dr. Harris was the only physician prescribing
medication to her. One day after receiving the letter, Ms. Gard took a drug test. The results
were negative for the use of opiates.

       After Ms. Gard’s release from Dr. Harris, Dr. Workman refused to see her.
Eventually, Ms. Gard lost all insurance coverage when she was terminated from Sedgwick.
She asserts that she could not be re-certified for disability insurance because Dr. Harris never
submitted his medical records.

       Ms. Gard filed the Complaint on February 24, 2005. She alleged that St. Paul and
Concentra wrongfully induced Dr. Harris to breach his fiduciary relationship with her as his
patient. Ms. Gard also sued Dr. Harris and HealthStar Physicians, P.C., (“HealthStar”) for
various breaches of fiduciary duties, false light invasion of privacy, and defamation.

      Subsequently, St. Paul filed a motion to dismiss, and Concentra filed a motion for
summary judgment. Dr. Harris and HealthStar filed a motion to dismiss alleging that they
were immune from suit and that the subject letter constituted a medical record pursuant to
Tenn. Code Ann. § 50-6-204(a)(2)(b).

      The trial court granted St. Paul’s motion to dismiss; an agreed order was entered
dismissing Concentra. The trial court found that the letter did not constitute a medical record
pursuant to Tenn. Code Ann. § 50-6-204(a)(2)(b) and denied the motion of Dr. Harris and
HealthStar.

      Dr. Harris and HealthStar then filed a motion for summary judgment, alleging that Ms.
Gard’s complaint appeared to be a claim for medical malpractice. The trial court denied that
motion as well. After discovery commenced, Dr. Harris and HealthStar filed another motion

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for summary judgment. The trial court denied the motion, but instructed the parties to brief
the issue of whether Ms. Gard consented to Dr. Harris’s communication.

       Dr. Harris and HealthStar subsequently filed a motion for summary judgment
predicated on the issue of consent. The trial court granted the motion on July 31, 2008. This
timely appeal followed.

                                 II. ISSUE PRESENTED

       The sole issue before this court is whether the trial court properly granted
       summary judgment in favor of Dr. Harris and HealthStar.

                             III. STANDARD OF REVIEW

       In reviewing a trial court’s grant of a motion for summary judgment, this court must
determine whether the requirements of Tenn. R. Civ. P. 56 have been met. Staples v. CBL
& Assocs., Inc., 15 S.W.3d 83, 88 (Tenn. 2000). Our inquiry involves only a question of law
with no presumption of correctness attached to the trial court’s judgment. Id. Under Tenn.
R. Civ. P. 56.04, “[s]ummary judgment is appropriate when the moving party can show that
there is no genuine issue of material fact and that it is entitled to judgment as a matter of
law.” Hannan v. Alltel Publ’g, 270 S.W.3d 1, 5 (Tenn. 2008) (citing Tenn. R. Civ. P. 56.04;
Byrd v. Hall, 847 S.W.2d 208, 214 (Tenn. 1993)). In Tennessee, the moving party who does
not bear the burden of proof at trial must either:

            (1)      affirmatively negate an essential element of the nonmoving
                     party’s claim; or
            (2)      show that the nonmoving party cannot prove an essential
                     element of the claim at trial.

Hannan, 270 S.W.3d at 9. A “conclusory assertion” is not enough to shift the burden. Id.
at 5 (quoting Byrd, 847 S.W.2d at 215). It is also not enough for the moving party to “cast
doubt on a party’s ability to prove an element at trial.” Hannan, 270 S.W.3d at 8. However,
if the moving party is able to affirmatively negate an essential element or show that the
nonmoving party would be unable to prove an essential element, “the burden of production
shifts to the nonmoving party to show that a genuine issue of material fact exists.” Id. at 5;
see also Sykes v. Chattanooga Hous. Auth., No. E2008-00525-COA-R3-CV, 2009 WL
2365705, at *2-3 (Tenn. Ct. App. E.S., July 31, 2009).




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                                      IV. DISCUSSION

        Ms. Gard challenges the trial court’s grant of summary judgment in favor of Dr.
Harris and HealthStar. She contends that the trial court erred by finding that she consented
to the disclosure of her protected health information by Dr. Harris and HealthStar. Ms. Gard
argues that the boilerplate language of the consent form at issue was too vague to convey that
by signing it, Ms. Gard would voluntarily waive her right to confidentiality.

       The consent form at issue, “Patient Consent for Use and Disclosure of Protected
Information,” states “I hereby give my consent for HealthStar Physicians, P.C. to use and
disclose protected health information about me to carry out treatment, payment, and health
care operations.” The form also contains Ms. Gard’s signature and the date February 4,
2004. According to Ms. Gard, the term “health care operations” is not explained, and Dr.
Harris’s letter is not a medical record that falls within the purview Tenn. Code Ann. § 50-6-
204. Relying on Overstreet v. TRW Commercial Steering Div., 256 S.W.3d 626 (Tenn.
2008), Ms. Gard claims that an implied covenant of confidentiality exists between a doctor
and a patient although the doctor is provided by the employer pursuant to the Tennessee
Workers’ Compensation Act. See id. at 634.

        Nonetheless, this issue hinges on whether Ms. Gard consented to the publication of
her protected health information. In Tennessee, the common law tort of false light invasion
of privacy requires the plaintiff to prove that a defendant published a matter concerning the
plaintiff, placing the plaintiff before the public in a false light which is highly offensive to
a reasonable person, and the defendant had knowledge that his statement was false or acted
recklessly with regard to the falsity of the publicized statement. See West v. Media Gen.
Convergence, Inc., 53 S.W.3d 640, 643-44 (Tenn. 2001).

        To establish a prima facie case of defamation, the plaintiff must prove that: (1) a party
published a statement; (2) with knowledge that the statement was false and defaming to the
other party; or (3) with reckless disregard for the truth of the statement or with negligence
in failing to ascertain the truth of the statement. Sullivan v. Baptist Mem’l Hosp., 995
S.W.2d 569, 571 (Tenn. 1999). “The basis for an action for defamation, whether it be
slander or libel, is that the defamation has resulted in injury to the person’s character and
reputation.” Quality Auto Parts, Inc. v. Bluff City Buick, Co., 876 S.W.2d 818, 820 (Tenn.
1994). A written statement is not libel simply because the person who is the subject of the
publication found it to be annoying, offensive, or embarrassing, but the words must be
reasonably construed to hold the plaintiff up to public hatred, contempt or ridicule, and they
must carry with them an element “of disgrace.” See 17 Tenn. Juris., Libel and Slander, § 3,
n. 15 (2009) (citing Katahn v. Hearst Corp., 742 F.Supp. 437, 439 (M.D. Tenn. 1990)).



                                               -4-
       Consent is a defense to the torts of false light invasion of privacy and defamation. It
is one of the few absolute privileges that defeats a plaintiff’s claim of false light and
defamation. In recognizing the tort of false light invasion of privacy, the Tennessee Supreme
Court endorsed the approach of the Second Restatement of Torts. See Media Gen.
Convergence, Inc., 53 S.W.3d at 648. Section 583 of the Second Restatement provides that
consent is an absolute privilege to defamation.1 Section 652F incorporates §§ 583 and 592A
and states that consent is a defense that applies to the invasion of privacy torts.2 The
comments of § 652F are instructive and provide, as follows:

        As is stated in the Comments under § 583, consent to any publication, either
        of matter that is personally defamatory or of matter that invades privacy,
        creates an absolute privilege so long as the publication does not exceed the
        scope of the consent. The consent given may be narrowly limited.

Restatement (Second) of Torts, § 652F cmt. b (1977).

Therefore, a plaintiff’s consent to publication bars recovery for false light and defamation
claims. “The occasions of absolute privilege include, among others, statements made in
judicial proceedings, in legislative proceedings, in proceedings of executive officers, and
‘publications made with the consent of the plaintiff . . . .’” See Langford v. Vanderbilt Univ.,
318 S.W.2d 568, 574 (Tenn. Ct. App. 1958) (citations omitted).

        In the instant case, it is undisputed that Ms. Gard executed a written consent form
before receiving treatment from Dr. Harris. It is also undisputed that Dr. Harris penned a
letter to Ms. Gard informing her that she should cease taking narcotic medications and sent
a copy of that letter to Dr. Workman, Ms. Howard, and Ms. Jones. The consent form at issue
permitted Dr. Harris and HealthStar to reveal Ms. Gard’s protected health information in
order to complete “treatment, payment, and health care operations” thereby limiting
disclosure of Ms. Gard’s protected health information to one of the stated purposes. Thus,
the next step in our inquiry is whether Dr. Harris’s disclosure exceeded the scope of Ms.
Gard’s consent.

        The Health Insurance Portability and Accountability Act (“HIPAA”) is comprehensive

        1
        “Except as stated in § 584, the consent of another to the publication of defamatory matter
concerning him is a complete defense to his action for defamation.” Restatement (Second) of Torts, § 583.


        2
         “The rules on absolute privileges to publish defamatory matter stated in §§ 583 to 592A apply to
the publication of any matter that is an invasion of privacy.” Restatement (Second) of Torts, § 652F.


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federal legislation that provides rights for patient confidentiality and “sets forth precise
procedures for the disclosure of ‘protected health information.’” See Alsip v. Johnson City
Med. Ctr., No. E2004-00831-COA-R9-CV, 2005 WL 1536192, at *9 (Tenn. Ct. App. E.S.,
June 30, 2005). HIPAA provides definitions relevant to this discussion and sheds light on
whether Dr. Harris’s disclosure exceeded the bounds of Ms. Gard’s consent.

       HIPAA permits doctors to use and disclose protected health information to carry out
treatment, payment, and health care operations without the patient’s authorization in specific
circumstances. 45 C.F.R. § 164.506 (2009). It provides a list of activities that qualifies as
“health care operations,”3 but Dr. Harris’s disclosure does not fall within the statutory


        3
          Health care operations means any of the following activities of the covered entity to the extent that
the activities are related to covered functions:
         (1) Conducting quality assessment and improvement activities, including outcomes evaluation and
development of clinical guidelines, provided that the obtaining of generalizable knowledge is not the primary
purpose of any studies resulting from such activities; population-based activities relating to improving health
or reducing health care costs, protocol development, case management and care coordination, contacting of
health care providers and patients with information about treatment alternatives; and related functions
that do not include treatment;
         (2) Reviewing the competence or qualifications of health care professionals, evaluating practitioner
and provider performance, health plan performance, conducting training programs in which students,
trainees, or practitioners in areas of health care learn under supervision to practice or improve their skills as
health care providers, training of non-health care professionals, accreditation, certification, licensing, or
credentialing activities;
         (3) Underwriting, premium rating, and other activities relating to the creation, renewal or
replacement of a contract of health insurance or health benefits, and ceding, securing, or placing a contract
for reinsurance of risk relating to claims for health care (including stop-loss insurance and excess of loss
insurance), provided that the requirements of § 164.514(g) are met, if applicable;
         (4) Conducting or arranging for medical review, legal services, and auditing functions, including
fraud and abuse detection and compliance programs;
         (5) Business planning and development, such as conducting cost-management and planning-related
analyses related to managing and operating the entity, including formulary development and administration,
development or improvement of methods of payment or coverage policies; and
         (6) Business management and general administrative activities of the entity, including, but not
limited to:
         (i) Management activities relating to implementation of and compliance with the requirements of this
subchapter;
         (ii) Customer service, including the provision of data analyses for policy holders, plan sponsors, or
other customers, provided that protected health information is not disclosed to such policy holder, plan
sponsor, or customer.
         (iii) Resolution of internal grievances;
         (iv) The sale, transfer, merger, or consolidation of all or part of the covered entity with another
covered entity, or an entity that following such activity will become a covered entity and due diligence
related to such activity; and
                                                                                                  (continued...)

                                                      -6-
definition for that term. HIPAA also defines “treatment,” as follows:

        Treatment means the provision, coordination, or management of health care
        and related services by one or more health care providers, including the
        coordination or management of health care by a health care provider with a
        third party; consultation between health care providers relating to a patient; or
        the referral of a patient for health care from one health care provider to
        another.

See 45 C.F.R. § 164.501.

HIPAA permits disclosure of protected health information “for treatment activities of a
health care provider.” 45 C.F.R. § 164.506(c)(2).

       In the case at bar, Dr. Harris’s letter communicated his suggestions for future
treatment options for Ms. Gard; specifically, he suggested that she discontinue the use of
narcotic prescription drugs after viewing a surveillance video of her activities. The
surveillance video revealed Ms. Gard bending over in her front yard, entering a car with ease,
and riding in a boat. Ms. Gard’s activities on the surveillance video markedly differed from
the level of movement and pain that Ms. Gard exhibited in Dr. Harris’s office.

       Although Dr. Harris communicated his intention to stop providing medical care to Ms.
Gard, it appears that the letter was related to Ms. Gard’s treatment within the meaning of
HIPAA. The letter stated how Ms. Gard should proceed with finding health care services for
her needs, and Dr. Harris shared that letter with individuals who were involved in the
“management of health care” for Ms. Gard. See 45 C.F.R. § 164.501. Dr. Harris did not
disclose any of Ms. Gard’s protected health information to anyone who was not connected
to the management of her health care or to the workers’ compensation case. In fact, Dr.
Workman was the physician that referred Ms. Gard to Dr. Harris; Ms. Howard was the
workers’ compensation case manager assigned to Ms. Gard’s case; and Ms. Jones was a
representative for Concentra, a company that contracted with St. Paul to perform workers’
compensation case management services for Ms. Gard. Thus, Dr. Harris’s disclosure of Ms.
Gard’s protected health information was permissible under HIPAA because the disclosure
was for the purpose of Ms. Gard’s treatment.



        3
        (...continued)
       (v) Consistent with the applicable requirements of § 164.514, creating de-identified health
information or a limited data set, and fundraising for the benefit of the covered entity. See 45 C.F.R. §
164.501 (2009).

                                                  -7-
       After reviewing the applicable HIPAA provisions and the facts of this case, Dr.
Harris’s disclosure of Ms. Gard’s protected health information did not exceed the HIPAA
standards or the bounds of Ms. Gard’s consent. Even though Ms. Gard claims that the
consent form was a contract of adhesion without any explanation of the terms like “health
care operations,” we do not find her argument persuasive. Ms. Gard offers no proof to
substantiate this claim; nothing in the record supports her claim that this was a contract of
adhesion. See Vickery Transp., Inc. v. HEPACO, Inc., No. W2003-01512-COA-R3-CV,
2004 WL 2280421, at *4 (Tenn. Ct. App. W.S., Oct. 4, 2004) (holding that the plaintiff failed
to prove that there was a contract of adhesion). Even if we deem the consent form at issue
as invalid or a contract of adhesion, it would be of no consequence because HIPAA permits
Dr. Harris’s disclosure for treatment purposes.

                                   V. CONCLUSION

        Accordingly, we affirm the trial court’s grant of summary judgment in favor of Dr.
Harris and HealthStar. Because consent bars recovery of Ms. Gard’s false light invasion of
privacy and defamation claims, no genuine issues of material fact exist and Dr. Harris and
HealthStar are entitled to a judgment as a matter of law. We will not address the merits of
the remaining arguments raised by Ms. Gard because we have decided the dispositive issue
of this appeal.

       The trial court’s order granting summary judgment is affirmed. Costs on appeal are
taxed to the appellant, Teresa Gard. The case is remanded, pursuant to applicable law, for
collection of costs assessed below.




                                                   _________________________________
                                                   JOHN W. McCLARTY, JUDGE




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