                                                                                          08/10/2017
               IN THE COURT OF APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                March 24, 2017 Session

             BETTY GRAHAM v. STACY LYNN ARCHER, ET AL.

                 Appeal from the Circuit Court for Hamilton County
                 No. 14-C-1100     W. Jeffrey Hollingsworth, Judge
                      ___________________________________

                           No. E2016-00743-COA-R3-CV
                       ___________________________________


This is an invasion of privacy case filed by Betty Graham. It arises out of disclosures
made by the defendants in an underlying health care liability action. In the underlying
case, the defendants moved to dismiss Graham’s case on the ground that she (1) had
failed to file a statutory-mandated pre-suit notice and (2) had failed to file with her
complaint a certificate of good faith, all as required by the Health Care Liability Act (the
Act). Graham claims that she could not comply with the Act because the defendants
failed to provide her with the relevant medical records. To demonstrate that they had
complied or attempted to comply with Graham’s requests for records, the defendants
filed in the earlier case two affidavits detailing their response to her requests. After the
dismissal of her health care liability action, Graham filed this case for invasion of
privacy, alleging that the defendants had wrongfully disclosed her personal medical
information by filing the affidavits in the underlying case. The trial court granted the
defendants’ motions to dismiss. Graham 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 D. MICHAEL
SWINEY, C.J., and THOMAS R. FRIERSON, II, J., joined.

Betty Graham, Whitewell, Tennessee, appellant, pro se.

Daniel J. Ripper, Chattanooga, Tennessee, for the appellees, Stacy Lynn Archer and
Robinson, Smith & Wells.

H. Dean Clements and Brie Allaman Stewart, Chattanooga, Tennessee, for the appellees,
Jeanne Weaver and Spine Surgery Associates P.C..
                                       OPINION

                                            I.

        In August 2013, Graham filed the underlying health care liability action against
two doctors and a spinal surgery center. The defendants in that action filed a motion to
dismiss based upon Graham’s failure to give pre-suit notice pursuant to Tenn. Code Ann.
§ 29-26-121 and failure to file a certificate of good faith pursuant to Tenn. Code Ann. §
29-26-122. Graham responded by alleging that she had requested her medical records,
but that the defendants had failed to provide those records to her. The defendants filed
the affidavits of Jeanne Weaver, the office manager for the surgery center, and of Elliott
Holt, the CEO of Medi-Copy Services, Inc, demonstrating that they had complied with or
attempted to comply with each of Graham’s requests for medical records. The court
dismissed that action.

       On September 11, 2014, Graham brought this action for invasion of privacy
against (1) Jeanne Weaver; (2) Spine Surgery Associates, PC, the spine surgery center
where Ms. Weaver worked; (3) attorney Stacy Archer and (4) her firm, Robinson, Smith
and Wells, who represented the defendants in the prior case; (5) Elliott Holt; and (6)
Medi-Copy Services, Inc. She claims that, by filing the affidavits, the defendants
disclosed her name, address, telephone numbers, and the identity of, and contact
information for, her physicians. Graham asserts that these disclosures constitute an
invasion of her privacy.

       On October 5, 2015, Jeanne Weaver and Spine Surgery Associates, PC filed a
motion to dismiss. The trial court granted that motion, finding that “[t]here is no doubt
that the affidavit is sworn testimony which was submitted in the previous lawsuit.” The
court concluded as follows:

             [T]here is no doubt that the affidavit was relevant to the issue
             of the provision of medical records which was raised by
             [Graham]. As such, it cannot be used as a basis for liability
             as [she] tries to do in this lawsuit. On that ground alone, the
             motion to dismiss may be granted. However, it is also noted
             that the allegedly confidential information contained in the
             affidavit had already been disclosed in other pleadings and
             statements by [Graham] in the previous lawsuit. She had no
             reasonable expectation that information she had already
             disclosed would not be disclosed by someone else.

       On October 22, 2015, Stacy Archer and Robinson, Smith and Wells filed a motion
to dismiss and/or for summary judgment. On November 9, 2015, Graham filed a motion
to reconsider the dismissal of Jeanne Weaver and Spine Surgery Associates, PC. The
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motion to reconsider was stricken when Graham did not appear in court for the hearing
on the motion.

       On February 25, 2016, the trial court entered an order dismissing Stacy Archer and
Robinson, Smith and Wells. The court found that “[t]here can be no legal claim for the
release of medical information that is already public record.” The court also affirmed the
order dismissing Jeanne Weaver and Spine Surgery Associates, PC based on Graham’s
failure to appear at the hearing on her motion to reconsider. Furthermore, finding no
evidence that either Elliott Holt or Medi-Copy Services, Inc. had been served with
process, the court dismissed the action against them. Graham appeals.

                                           II.

       Graham’s brief does not contain a statement of the issues on appeal. The issues
she raises, as we discern from her brief, are as follows:

             Whether the trial court erred in dismissing Graham’s action
             for invasion of privacy.

             Whether Graham has a claim under the federal Health
             Insurance Portability and Accountability Act (HIPAA) on
             appeal.

             Whether the trial court erred in dismissing Elliott Holt and
             Medi-Copy Services, Inc.

                                           III.

       While the meaning and effect of the relevant facts in this case are sharply
disputed, the facts themselves are not in dispute. Since the relevant facts are not in
dispute, the issues before us are matters of law that we review de novo with no
presumption of correctness attaching to the trial court’s legal conclusions. Campbell v.
Florida Steel Corp., 919 S.W.2d 26, 35 (Tenn. 1996); Union Carbide Corp. v.
Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993).

                                           IV.

                                           A.

                                            i.

      This Court has stated that Tennessee recognizes four types of invasion of privacy:

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              “(a) unreasonable intrusion upon the seclusion of another . . .
              (b) appropriation of the other’s name or likeness . . . (c)
              unreasonable publicity given to the other’s private life . . . (d)
              publicity that unreasonably places the other in a false light
              before the public.”

Burnette v. Porter, No. W2010-01287-COA-R3-CV, 2011 WL 4529612, at *3 (Tenn. Ct.
App., filed September 30, 2011). In this case, Graham does not specifically state the type
of invasion of privacy alleged. While not specifically differentiating among the four
types, Graham claims that the filing in the underlying case of the documents disclosing
her name, address, phone numbers, and identification of her doctors constitutes an
invasion of her privacy. The information disclosed by the defendants, however, was
already disclosed by Graham herself and made public during the course of her health care
liability action. The Supreme Court has stated that “it is . . . unrealistic and illogical to
hold that there has been an invasion of th[e] common law right of privacy of an
individual by publishing a matter which that individual had already made a matter of
public record . . . .” Langford v. Vanderbilt, 287 S.W.2d 32, 39 (Tenn. 1956). A
plaintiff may “waive his or her right to privacy and, thus, waive their right to bring an
action for an invasion of that right.” Stein v. Davidson Hotel Co., No. 01-A-01-9509-
CV-00407, 1996 WL 230196, at *9 (Tenn. Ct. App., filed May 8, 1996).

       Here, Graham herself revealed the information that she now claims the defendants
disclosed. Prior to the filing of the affidavits in the “health” lawsuit, Graham made the
information public by including it in documents she filed with the court during that
action. Because Graham published the information that she alleges the defendants
disclosed, she waived her right of privacy with respect to that information. She has no
reasonable expectation of privacy in the information and has no claim for invasion of
privacy for the defendants’ disclosure of the information already made public by her. We
hold, as a matter of law, that Graham’s factual allegations fail to establish a cause of
action for invasion of privacy.

                                             ii.

       Even if the information were not considered to be a matter of public record, the
disclosure of the information in the affidavits is privileged. With respect to testimony
during a judicial proceeding, the Supreme Court has stated the following:

              It is generally recognized that statements made in the course
              of a judicial proceeding that are relevant and pertinent to the
              issues involved are absolutely privileged and cannot be the
              predicate for liability in an action for libel, slander, or
              invasion of privacy.

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                                    *      *      *

              The underlying basis for the grant of the privilege is the
              public’s interest in and need for a judicial process free from
              the fear of a suit for defamation or invasion of privacy based
              on statements made in the course of a judicial or quasi-
              judicial proceeding.

Lambdin Funeral Service, Inc. v. Griffith, 559 S.W.2d 791, 792 (Tenn. 1978). In
addition to testimony at trial, statements made within documents filed in court may also
be privileged. In determining that an affidavit filed in court is also privileged, the
Supreme Court stated the following:

              We do not believe that any distinction in the general rule has
              been made or should be made in the cases where the . . .
              matter is within an affidavit in support of a motion for a new
              trial, and it is immaterial whether the affidavit is a separate
              writing or is incorporated into the motion.

Jones v. Trice, 360 S.W.2d 48, 52 (Tenn. 1962).

       For the absolute privilege to apply, the statement must meet two criteria: “(1) It
must be in the course of a judicial proceeding, and (2) it must be pertinent or relevant to
the issue involved in said judicial proceeding.” Id. Whether a statement is relevant or
pertinent to the issue involved is a question of law for the court. Id. at 53.

        In the case before us, Graham alleges an invasion of privacy based upon affidavits
and exhibits filed in court. There is no dispute that the defendants filed these documents
during a judicial proceeding. Tenn. Code Ann. § 29-26-122(c) provides, in pertinent part,
as follows:

              The court may, upon motion, grant an extension within which
              to file a certificate of good faith if the court determines that a
              health care provider who has medical records relevant to the
              issues in the case has failed to timely produce records upon
              timely request, or for other good cause shown.

In Graham’s health care liability action, she asserted that the defendants had failed to
provide her medical records and that was the reason for her allegation of noncompliance
with the pre-suit notice and certificate of good faith requirements. To demonstrate their
compliance with Graham’s requests, the defendants filed the affidavits. The affidavits
detailing the defendants’ response to the requests for records are undoubtedly relevant
and pertinent to an issue in the underlying health care liability action, i.e whether the
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defendants “failed to timely produce records upon timely request.” Because the
documents in question were filed in a judicial proceeding and relevant to an issue in the
case, they are privileged and cannot be the basis for an invasion of privacy claim against
the defendants. We hold again, as a matter law, that Graham has failed to establish a
claim for invasion of privacy based upon the affidavits filed in court in the underlying
action.

                                            B.

       In her brief, Graham asserts that her medical records are protected under federal
law. While Graham does not specifically state that she is alleging a HIPAA violation, we
construe her statements as an attempt to raise a claim under that federal statutory scheme.

        After reviewing the record before us, we have found no evidence that Graham
raised a HIPAA violation during the trial. Accordingly, Graham has waived her right to
raise this issue on appeal by not raising it with the trial court. Lawrence v. Stanford, 655
S.W.2d 927, 929 (Tenn. 1983); In re Johnny E. K., No. E2009-01634-COA-R3-PT,
2010 WL 550911 (Tenn. Ct. App. Feb. 16, 2010); In re Montana R.T., No. E2011-
00755-COA-R3-PT, 2012 WL 2499498, at *3 (Tenn. Ct. App. June 29, 2012).

       Even if her complaint could be construed as alleging a HIPAA violation, Graham
has no cause of action. “HIPAA only expressly authorizes the state attorney general . . .
to bring HIPAA actions on behalf of the State residents. . . . ‘Because HIPA specifically
delegates enforcement, there is a strong indication that Congress intended to preclude
private enforcement.’ ” Clark v. Nashville General Hosp. at Meharry, No. CIV. 3:14-
1048, 2014 WL 2560505, at *1 (M.D. Tenn., filed June 6, 2014) (emphasis in original).
We hold, as a matter of law, that Graham has no claim under HIPAA for the disclosure of
the information in question.

                                            C.

      As previously noted, the trial court dismissed the plaintiff’s suit against Elliott
Holt and Medi-Copy Services Inc. because the record reflects that neither was served
with process. There is no evidence to the contrary. The trial court did not err in
dismissing this case against those two defendants.

                                            VI.

       The judgment of the trial court is affirmed. The costs on appeal are assessed to the
appellant, Betty Graham. This case is remanded for enforcement of the trial court’s



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judgment and for collection of costs assessed below.



                                          _______________________________
                                          CHARLES D. SUSANO, JR., JUDGE




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