                                                                                                    08/23/2019
                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                     July 19, 2019 Session

CARL SHORT EX REL. ALLISON HOPE SHORT v. METRO KNOXVILLE
                      HMA, LLC, ET AL.

                     Appeal from the Circuit Court for Knox County
                        No. 2-346-17    William T. Ailor, Judge


                                No. E2018-02292-COA-R3-CV


This appeal concerns healthcare liability. Carl Short (“Plaintiff”), widower of Allison
Short (“Decedent”), filed suit in the Circuit Court for Knox County (“the Trial Court”)
alleging negligence in his late wife’s medical treatment against a number of physicians
(“Physician Defendants”) and Turkey Creek Medical Center (“the Hospital”)
(“Defendants,” collectively).        Defendants moved to dismiss on the basis of
noncompliance with Tenn. Code Ann. § 29-26-121(a)(2)(E), which requires that pre-suit
notice include a HIPAA compliant medical authorization allowing the healthcare
provider receiving the notice to obtain complete medical records from every other
provider that is sent a notice.1 Plaintiff’s authorizations allowed each provider to disclose
complete medical records to each named provider although it did not state specifically
that each provider could request records from the other. The Trial Court held that
Plaintiff’s authorizations failed to substantially comply with the statute’s requirements
because of this failure to explicitly allow each provider to obtain records. Plaintiff
appeals. We hold that Plaintiff’s method of permitting Defendants access to Decedent’s
medical records substantially complied with Tenn. Code Ann. § 29-26-121(a)(2)(E). We
reverse the judgment of the Trial Court.

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

D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which JOHN W.
MCCLARTY, J., joined. THOMAS R. FRIERSON, II, J., filed a dissenting opinion.




1
 HIPAA refers to the Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104-191,
110 Stat. 1936.
Weldon E. Patterson, Louis W. Ringger, III, and Grant E. Mitchell, Knoxville,
Tennessee, for the appellant, Carl Short, individually and as next of kin of Allison Hope
Short, deceased.

James E. Looper, Jr., Carson W. King, and Nathaniel T. Gorman, Nashville, Tennessee,
for the appellees, Sparrow Emergency Physicians, PLLC, Douglas E. Holland, M.D., and
Michael D. Phillips, M.D.

C.J. Gideon, Jr., J. Blake Carter, and Jordan K. Gibson, Nashville, Tennessee, for the
appellee, Metro Knoxville HMA, LLC d/b/a Turkey Creek Medical Center.

                                        OPINION

                                       Background

       Decedent, age 29, died in May 2016 while pregnant with her first child. Decedent
had developed a pneumonic condition and infection over the course of three visits to the
emergency room at the Hospital. Plaintiff filed suit in September 2017, after pre-suit
notice was given, against Defendants for negligence in the death of Decedent and their
unborn child. Plaintiff sent each Defendant a packet containing a letter, a list of relevant
providers, and an authorization to disclose Decedent’s entire medical record to each listed
provider. An example of one of Plaintiff’s notice letters reads as follows:

       Dear Dr. Holland:

       Please be advised that Carl Short, surviving spouse of Allison Short, is
       giving you notice pursuant to T.C.A. 29-26-121 that a medical malpractice
       claim will be filed against you within the time period required by law. The
       claim will be filed by Carl Short, as surviving spouse of Allison Short. . . .

       This firm will be representing Mr. Short. Our address and contact
       information appears in this letter. If you wish to correspond or talk with
       this firm about this matter, please direct your inquiry to the undersigned.

       Attached please find a list of providers to whom a substantially similar
       notice is being sent pursuant to T.C.A. 29-26-121(a). These providers are:
       Michael D. Phillips, M.D., Leila K. Davis, M.D., Isham C. Hewgley, III,
       M.D., Turkey Creek Medical Center, Metro Knoxville HMA, LLC,
       Tennova Women’s Care-Turkey Creek, Knoxville HMA Physician
       Management, LLC, William K. Webb, M.D., Stat Care Pulmonary
       Consultants, Summit Medical Group, PLLC, Ernest Brian Kemp, M.D.,
                                            -2-
       Knoxville Infectious Disease Consultants, P.C., William J. Smith, M.D.,
       Sudha Raghavan Nair, M.D., and EmCare Physician Providers, Inc., a/k/a
       EmCare Physician Services, Inc, a/k/a EmCare, Inc.

       As required by T.C.A. §29-26-121(a)(2)(E), Mr. Short has executed a
       HIP[A]A-compliant medical authorization authorizing you to obtain
       complete medical records from Michael D. Phillips, M.D., Leila K. Davis,
       M.D., Isham C. Hewgley, III, M.D., Turkey Creek Medical Center, Metro
       Knoxville HMA, LLC, Tennova Women’s Care-Turkey Creek, Knoxville
       HMA Physician Management, LLC, William K. Webb, M.D., Stat Care
       Pulmonary Consultants, Summit Medical Group, PLLC, Ernest Brian
       Kemp, M.D., Knoxville Infectious Disease Consultants, P.C., William J.
       Smith, M.D., and Sudha Raghavan Nair, M.D., and and [sic] EmCare
       Physician Providers, Inc., a/k/a EmCare Physician Services, Inc, a/k/a
       EmCare, Inc.2

       Neither this Notice, nor the medical authorization, waives the common law
       physician patient privilege concerning the care and treatment of Allison
       Short. We expect that you will not communicate with any person, other
       than your attorney, about the care and treatment of Allison Short.

       (Footnote added). In the HIPAA authorization portion of the packet, the following
was stated as to disclosure:


       I authorize the use or disclosure of the above named individual’s
       [Decedent’s] health information as described below:
       The following individual or organization is authorized to make the
       disclosure:
       Provider: Douglas E. Holland, M.D.
       The type and amount of information to be used or disclosed is as follows:
       (include dates where appropriate) . . . X entire record . . .

                                                ***
       This information may be disclosed to and used by the following individual
       or organization for the purpose of a legal matter . . . [the listed providers]



2
  With the parties’ agreement, Sparrow Emergency Physicians, PLLC later was substituted into the case
in place of EmCare Physician Providers, Inc., EmCare Physician Services, Inc., and EmCare Inc.
                                                 -3-
       (Paragraph numbers omitted). In September 2018, Physician Defendants filed a
motion to dismiss. A hearing was conducted on Physician Defendants’ motion, and in
November 2018, the Trial Court granted the motion. The Hospital moved to dismiss as
well and its motion, too, was granted. In December 2018, the Trial Court entered its
order of dismissal. The Trial Court stated:

              This cause came to be heard before the Honorable William Ailor on
      November 2, 2018 for the Motion to Dismiss filed by Defendants Sparrow
      Emergency Physicians, PLLC, Douglas E. Holland, M.D., and Michael D.
      Phillips, M.D., and on November 30, 2018 for the Motion to Dismiss filed
      by Defendant Metro Knoxville HMA, LLC d/b/a Turkey Creek Medical
      Center and the Response and Motion to Reconsider filed by Plaintiffs.
      Based on the Motions to Dismiss, Memorandums in Support, Responses in
      Opposition, argument of counsel, and the entire record in this matter, the
      Court finds as follows:
              This is a health care liability action governed by Tenn. Code Ann. §
      29-26-121. The Court is faced with a Tenn. R. Civ. P. 12.02(6) motion to
      dismiss for failure to state a claim upon which relief can get granted. The
      Court must look at the case in the light most favorable to the nonmoving
      party and give all inferences in favor of the nonmoving party, the Plaintiff.
              In this matter, the Plaintiff’s previous counsel, four days prior to the
      expiration of the statute of limitations, sent a letter dated May 16, 2017 to
      numerous medical providers, including the named Defendants. Plaintiff’s
      letter included (1) a list of names and addresses of all medical providers
      being sent a copy of the notice and (2) an authorization permitting
      disclosure of Ms. Short’s health information to each of the named
      providers.
              The Defendants’ Motion to Dismiss is based on the claim that the
      authorization provided by Plaintiff does not comply with Tenn. Code Ann.
      § 29-26-121(a)(2)(E), which requires presuit notice to 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.”
              In this case, the medical authorization, which was attached to the
      Response of the Plaintiff and has the caption, “Authorization to Disclose
      Health Information,” reads as follows, “I authorize the use or disclosure of
      the above-named individual’s health information as described below. The
      following individual or organization is authorized to make the disclosure,”
      and then it has in this particular instance the provider, “Metro Knoxville
      HMA,” and has an X by “entire record.”

                                            -4-
                The Authorization continues under paragraph 5 to state, “This
        information may be disclosed to and used by the following individual or
        organization for the purpose of a legal matter,” and then has a listing of all
        of the same health care providers that were in the list that was sent with the
        authorization and the letter from Plaintiff’s initial counsel.
                Tenn. Code Ann. § 29-26-121 is the controlling statute with regard
        to health care liability notices and compliance with that notice requirement.
        In this instance the Court finds that the authorization was HIPAA-
        compliant; however, it did not comply with Section (E) of Tenn. Code Ann.
        § 29-26-121(a)(2)(E) because it did not authorize the health care providers
        “to obtain” medical records. It simply authorized the health care providers
        to make a disclosure. The intent of the statute is to allow medical providers
        an opportunity to fully investigate a plaintiff’s potential health care liability
        action during the presuit period, which has been clearly set forth by the
        Courts of Appeals and the Tennessee Supreme Court, most recently in
        Parks v. Walker, No. E2017-01603-COA-R3-CV, November 28, 2018. In
        order to comply with Tenn. Code Ann. § 29-26-121(a)(2)(E), an
        authorization, even if HIPAA compliant, must permit medical providers “to
        obtain” medical records.
                Based on the record before it, the Court is of the opinion that
        Defendants’ Motions are well-taken and are GRANTED. Plaintiff’s
        Motion to Reconsider is denied. Accordingly, Defendants Sparrow
        Emergency Physicians, PLLC, Douglas E. Holland, M.D., Michael D.
        Phillips, M.D., and Metro Knoxville HMA, LLC d/b/a Turkey Creek
        Medical Center are hereby DISMISSED from this matter based on
        Plaintiff’s failure to comply with T.C.A. § 29-26-121. This dismissal is
        with PREJUDICE because the 120-extension to the statute of limitations is
        unavailable to the Plaintiff due to defective presuit notice, and because
        Plaintiff filed this action outside of the applicable one-year statute of
        limitations.3
                This is a FINAL APPEALABLE ORDER with regard to these
        Defendants.

(Footnote in original but renumbered). Plaintiff timely appealed to this Court.




3
 Plaintiff has raised the argument that a dismissal based on non-compliance with Tenn. Code Ann. § 29-
26-121(a)(2)(E) should be without prejudice because the provision of pre-suit notice, despite the above-
noted deficiencies, was sufficient to trigger the 120-day extension of the applicable statute of limitations.
This Court acknowledges Plaintiff’s preservation of this issue for appellate review should it be warranted.
                                                    -5-
                                        Discussion

       Although not stated exactly as such, Plaintiff raises the following issues on appeal:
1) whether the Trial Court erred in holding that Plaintiff’s method of permitting
Defendants access to Decedent’s medical records failed to substantially comply with
Tenn. Code Ann. § 29-26-121(a)(2)(E); and, 2) whether the Trial Court erred in
dismissing the Hospital where that party already possessed Decedent’s pertinent medical
records. The Hospital raises its own separate issue of whether Plaintiff can still pursue a
claim against it if Physician Defendants are dismissed where the claims against the
Hospital are vicarious in nature.

        This case was resolved on a motion to dismiss. Our standard of review is de novo
with no presumption of correctness. J.A.C. by and through Carter v. Methodist
Healthcare Memphis Hosps., 542 S.W.3d 502, 509 (Tenn. Ct. App. 2016). We first
address whether the Trial Court erred in holding that Plaintiff’s method of permitting
Defendants access to Decedent’s medical records failed to substantially comply with
Tenn. Code Ann. § 29-26-121(a)(2)(E). This statute requires plaintiffs in healthcare
liability suits to send as part of their pre-suit written notices “[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) (2012). A HIPAA-compliant authorization must contain the following
six core elements:

       (1) Core elements. A valid authorization under this section must contain at
       least the following elements:

       (i) A description of the information to be used or disclosed that identifies
       the information in a specific and meaningful fashion.

       (ii) The name or other specific identification of the person(s), or class of
       persons, authorized to make the requested use or disclosure.

       (iii) The name or other specific identification of the person(s), or class of
       persons, to whom the covered entity may make the requested use or
       disclosure.

       (iv) 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.

                                             -6-
       (v) An expiration date or an expiration event that relates to the individual or
       the purpose of the use or disclosure. The statement “end of the research
       study,” “none,” or similar language is sufficient if the authorization is for a
       use or disclosure of protected health information for research, including for
       the creation and maintenance of a research database or research repository.

       (vi) Signature of the individual and date. If the authorization is signed by a
       personal representative of the individual, a description of such
       representative’s authority to act for the individual must also be provided.

45 C.F.R. § 164.508 (c)(1).

        The Trial Court found that Plaintiff’s authorizations satisfied these core elements
and “that the authorization was HIPAA-compliant . . . .” The problem with Plaintiff’s
authorizations, according to the Trial Court, stemmed from Tenn. Code Ann. § 29-26-
121(a)(2)(E). However, not every failure to comply perfectly with that statute is fatal to a
healthcare liability plaintiff’s case. Regarding the degree of noncompliance that will
derail a plaintiff’s case, our Supreme Court has stated:

             A plaintiff’s less-than-perfect compliance with Tenn. Code Ann. §
       29-26-121(a)(2)(E), however, should not derail a healthcare liability claim.
       Non-substantive errors and omissions will not always prejudice defendants
       by preventing them from obtaining a plaintiff’s relevant medical records.
       Thus, we hold that a plaintiff must substantially comply, rather than strictly
       comply, with the requirements of Tenn. Code Ann. § 29-26-121(a)(2)(E).

Stevens ex rel. Stevens v. Hickman Cmty. Health Care Servs., Inc., 418 S.W.3d 547, 555
(Tenn. 2013). The statute “serve[s] an investigatory function, equipping defendants with
the actual means to evaluate the substantive merits of a plaintiff’s claim by enabling early
discovery of potential co-defendants and early access to a plaintiff’s medical records.”
Id. at 554. “In determining whether a plaintiff has substantially complied with a statutory
requirement, 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.

       The Trial Court, in determining that Plaintiff failed to substantially comply, relied
on a recent case with rather analogous facts. In Parks v. Walker, No. E2017-01603-
COA-R3-CV, 2018 WL 6242461 (Tenn. Ct. App. Nov. 28, 2018), Rule 11 appl. perm.
appeal denied March 27, 2019, this Court by a majority decision affirmed a trial court’s
grant of defendants’ motion to dismiss on the basis that plaintiff failed to substantially
comply with the requirements of the notice statute by failing to provide a HIPAA-
                                             -7-
compliant medical authorization pursuant to Tenn. Code Ann. § 29-26-121(a)(2)(E).
Specifically, the Parks majority found that the plaintiff’s authorization (1) failed to
include a description of the purpose of the requested use or disclosure, one of the six core
elements; and (2) did not explicitly allow any one of the named parties to request
plaintiff’s medical records from any of the other listed parties. The majority in Parks,
deeming these mistakes fatal to the plaintiff’s case, discussed as follows:

       [T]he 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 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).

                                            ***

               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.


                                             -8-
              “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 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.

Parks, 2018 WL 6242461, at *1-3.

       Plaintiff argues “[t]here is no rational reason to require plaintiffs . . . to provide
authorization forms that the recipient can then send to another healthcare defendant and
request release of the patient’s records” and that “Plaintiff’s method was equally valid
and much more efficient.” In response, Physician Defendants argue in their brief that
                                             -9-
Plaintiff’s authorization was “useless” because it “only authorize[d] themselves to
disclose medical records and not to obtain records from any other provider.” The
Hospital adds that it could not even reach out to other providers because “Plaintiff’s letter
and the HIPAA authorization contained very clear instructions not to discuss the patient’s
treatment with anyone other than the providers’ attorneys.”

        Having reviewed the parties’ respective arguments and the relevant law, we now
examine Plaintiff’s pre-suit notice packet to determine exactly what it allowed
Defendants to do. To recap, the letter accompanying Plaintiff’s HIPAA authorization
stated: “As required by T.C.A. §29-26-121(a)(2)(E), Mr. Short has executed a HIP[A]A-
compliant medical authorization authorizing you to obtain complete medical records from
. . . .” The letter also stated: “Attached please find a list of providers to whom a
substantially similar notice is being sent pursuant to T.C.A. 29-26-121(a).” The
authorization allowed the recipient to disclose Decedent’s entire medical record to each
specified provider for the purpose of a legal matter.

       Defendants, arguing that they could not use the authorizations, point to language
in the accompanying notice letter whereby Plaintiff preserved the physician patient
privilege and admonished them not to discuss Decedent’s treatment with anyone other
than their lawyer. This language, however, is consistent with authorization to obtain
Decedent’s medical records. Defendants are keen to cite Plaintiff’s notice letter where he
asserted privilege but understandably do not highlight that part of the notice letter
explicitly stating that substantially similar notices were being sent to the other providers
pursuant to statute “authorizing you to obtain complete medical records . . . .” Surely, the
notice letter either is to be considered along with the authorization or it is not.
Defendants may not pick and choose which portions they care to attribute significance to.
It must be read together and in whole.

       Nothing contained in the required written notice letter is necessary to make the
HIPAA authorizations furnished here HIPAA-compliant. The HIPAA authorizations
were, as found by the Trial Court, HIPAA-compliant. The notice letter, however, can
and did serve to inform Defendants that all other listed medical providers had received a
similar HIPAA-compliant authorization so as to allow each listed medical provider to
obtain complete medical records from every other provider.

        Defendants do not identify, nor does our own research yield, any such thing as a
standard model HIPAA authorization. Rather than form, what matters is that the
authorization is effective to allow listed medical providers to obtain the medical records
from each other. Tenn. Code Ann. § 29-26-121(a)(2)(E) requires that a healthcare
liability plaintiff provide a HIPAA-compliant medical authorization permitting each
provider receiving the notice to obtain complete medical records from each other. The
                                            -10-
term “obtain” is not magical. If an authorization permits a defendant to obtain medical
records but does not say “obtain,” it is compliant all the same. Had Defendants requested
records from the other providers, each of whom received their own similar authorization,
they would have received the records. There can be no dispute that Defendants knew this
from the clear language of the notice letter. Defendants incurred no prejudice from
Plaintiff’s method.4

       Defendants argue further that the risk of a HIPAA violation was too great for them
to request the records. Physician Defendants characterize Plaintiff’s position as
expecting “that each provider should have assisted in fixing Plaintiff’s clear error by
calling the 15 other providers, fingers crossed and in hopes that the other providers had
received a medical authorization allowing them to disclose health information.”
According to Physician Defendants, “[t]he health care provider would have been at a
substantial risk of violating HIPAA, the implied covenant of confidentiality that exists
between physicians and patients, Tennessee patient privacy laws, and the terms of the
notice they received by making that phone call.” However, Physician Defendants ignore
that Plaintiff’s authorization clearly permits the recipient to disclose Decedent’s entire
medical record, which of necessity would show that the individual was the physician’s
patient, to the listed providers. As Decedent’s entire medical record could be disclosed
safely, each listed provider safely could contact the other listed providers to request
records without any reasonable fear they were violating HIPAA.

        This Court has 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.” J.A.C., 542 S.W.3d at 514 (emphasis
added). We believe the converse is true, as well. That a healthcare liability defendant
has no duty to test an obviously deficient HIPAA form does not mean such a defendant
should succeed in getting the lawsuit dismissed by refusing to act on a perfectly valid, or
ostensibly valid, HIPAA authorization. The HIPAA form in the instant case can hardly
be said to be “obviously deficient” when it adheres to the core elements required of such
forms and was, in fact, found by the Trial Court to be HIPAA-compliant. While we
appreciate fully defense lawyers’ duty to represent their client’s interests, Defendants’
failure to request medical records from the listed providers on the basis of an unfounded
hypothetical exposure to legal penalties when Plaintiff provided a completely viable

4
  In the case of Martin v. Rolling Hills Hosp., LLC, No. M2016-02214-COA-R3-CV, 2018 WL 3097231
(Tenn. Ct. App. June 22, 2018), this Court found substantial compliance notwithstanding the omission of
three core elements because defendants failed to demonstrate prejudice. On November 16, 2018, our
Supreme Court granted permission to appeal in Martin and expressed a particular interest in the question
of, among other things, the proper role of prejudice in the substantial compliance analysis and
determination. That case is pending. As we discuss in the present case, we expressly find Defendants
incurred no prejudice.
                                                 -11-
means for them to safely obtain the records was unreasonable. To obtain the medical
records necessary for their defense in the lawsuit, all Defendants had to do was ask the
other listed medical providers for them, and they and their attorneys knew it.

         Defendants stand on Parks, in which a Rule 11 application for permission to
appeal was denied by our Supreme Court but which is not a published case at the time of
the filing of this Opinion. There is at least one major distinction between the instant case
and Parks. Unlike in Parks, Plaintiff did not fail to identify the purpose for the
disclosure. Indeed, Plaintiff’s authorization satisfied the core elements of a HIPAA
authorization while the authorization in Parks did not. Like Parks, however, Plaintiff did
not specifically use language in the HIPAA authorization portion of his pre-suit package
permitting the providers to obtain medical records. We believe the present case is
distinguishable from Parks. However, to the extent this Opinion may conflict with
Parks, we submit that Parks was decided wrongly.5

        Our Supreme Court must have meant the modifier “substantially” to mean
something. We hold that HIPAA authorizations furnished to listed medical providers
substantially comply with the statute if (1) they are sufficient to enable those medical
providers to obtain the patient’s medical records from each other simply by requesting
them, and (2) the listed medical providers are informed in the required written notice that
all they have to do is ask the other listed medical providers for the records to obtain them
because HIPAA authorizations have been furnished to the other providers allowing them
to disclose the patient’s records. In such a situation, as is this case, the medical
defendants will have suffered no prejudice.

       We hold that Plaintiff substantially complied with Tenn. Code Ann. § 29-26-
121(a)(2)(E). We reverse the judgment of the Trial Court dismissing the complaint and
remand for this matter to proceed. All other issues are pretermitted.




5
  We respectfully suggest that, should this Opinion be interpreted as irreconcilable with Parks, this matter
is suitable for final resolution by our Supreme Court.
                                                   -12-
                                      Conclusion

       The judgment of the Trial Court is reversed, and this cause is remanded for further
proceedings consistent with this Opinion. The costs on appeal are assessed against the
Appellees, Sparrow Emergency Physicians, PLLC, Douglas E. Holland, M.D., Michael
D. Phillips, M.D., and Metro Knoxville HMA, LLC d/b/a Turkey Creek Medical Center.



                                         ____________________________________
                                         D. MICHAEL SWINEY, CHIEF JUDGE




                                           -13-
