                                                                                            07/26/2018
                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                                  May 29, 2018 Session


KONAH EVANGELINE BUCKMAN, MOTHER AND NEXT OF KIN OF
EDWARD KOFI SASA LENOX BUCKMAN A/K/A EDWARD WELSELY,
  DECEASED v. MOUNTAIN STATES HEALTH ALLIANCE, ET AL.

                Appeal from the Circuit Court for Washington County
                     No. 36257     James E. Lauderback, Judge



                             No. E2017-01766-COA-R3-CV




D. MICHAEL SWINEY, C.J., separate concurring.
        I concur, reluctantly, with the entirety of the opinion of the Court. I concur
because this is the result mandated by statute and case law. I do so reluctantly because
this case is the latest in a long line of healthcare liability actions dismissed on technical
grounds since the enactment of the sections of the Health Care Liability Act governing
pre-suit notice adopted by our General Assembly in 2008. This Court has seen healthcare
liability case after case brought by Tennessee citizens dismissed without any
determination of whether the case has any merit.
        These results require, I believe, for us to accept that one of two things is true. The
first of these options is that our General Assembly intended in enacting these healthcare
liability statutes for some Tennessee citizens to have their healthcare liability actions
resolved not on the merits but instead by means of technical traps. The second option is
that the dismissal of numerous Tennessee citizens’ healthcare liability actions for
technical reasons without any decision ever being made as to the possible merits of the
case is an unintended consequence of these statutes. I do not believe that our General
Assembly intended by creating various technical traps resulting in dismissal to deprive
some of its Tennessee citizens from the opportunity of having a healthcare liability action
determined on the merits. I instead believe that this continuing flow of cases dismissed
for technical reasons having nothing to do with the merits of the healthcare liability
action is an unintended consequence.
      As Oliver Wendell Holmes, Jr. stated, “The life of the law has not been logic; it
has been experience.” Our experience in this regard has been that numerous Tennessee
citizens’ healthcare liability actions are being dismissed for reasons having nothing to do
with the merits of the action. While logic tells us that perhaps every lawyer for a
Tennessee citizen should be able to follow the statutes to avoid these traps, experience
has shown otherwise. Instead, Tennessee courts often find themselves in situations
requiring a dismissal of the action not on the merits. An example of such a dismissal is
the current case where the plaintiff’s case must be dismissed under the statutes and the
case law because the HIPAA authorization1 had one possible interpretation, among
others, that it expired before it ever was signed, something I submit most of our
Tennessee citizens would find to be, simply put, a silly idea. This, however, is the result
required by the current statutes and existing case law.
       As the courts are limited as to what they properly can do to eliminate these
unintended consequences, I respectfully suggest to our General Assembly that these
unintended consequences can be eliminated by simple amendments to the statute. One
possible example would be something along the lines of requiring the defense counsel, if
he or she has any concerns with the HIPAA authorization, to notify the plaintiff’s counsel
of these concerns and give plaintiff’s counsel seven days to provide a HIPAA compliant
authorization satisfying those concerns or have to live with the consequences of the
original HIPAA authorization’s deficiencies. This would satisfy the goal of getting a
proper medical authorization to the defendants so as to allow them to gather and review
the plaintiff’s medical records promptly.
        This added “burden” on defense counsel is minimal at most. The argument that
even this minimal “burden” should not be placed on the defendant because it is the
plaintiff’s burden to provide a proper medical authorization or have the case dismissed
makes sense only if the lawsuit is viewed as a game of “gotcha” to be played by the
lawyers.2 It is not a game either to the plaintiffs or to the defendants.
       If we want to resolve Tennessee citizens’ healthcare liability actions on the merits
and not on technicalities, as we do other types of suits, these statutes need to be amended
to eliminate these unintended consequences. If, however, we are content to have some
Tennessee citizens’ healthcare liability actions dismissed without any determination as to
the possible merits of the suit, no amendment is required.




                                                    ____________________________________
                                                    D. MICHAEL SWINEY, CHIEF JUDGE


1
  These cases are rendered more technically complex due to the necessary interaction between our Tennessee health
care liability statutes and the federal regulations governing HIPAA.
2
  I do not fault defense counsel in any way for raising these technical defenses. They are doing their job under
existing law.

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