               IN THE COURT OF APPEALS OF TENNESSEE
                            AT JACKSON
                                 May 14, 2015 Session

  ROBERT T. HUGHES ET AL. v. HENRY COUNTY MEDICAL CENTER
           D/B/A LAKE HAVEN BEHAVIORAL CENTER

                  Appeal from the Circuit Court for Henry County
                       No. 3672    Donald E. Parish, Judge


                 No. W2014-01973-COA-R3-CV – Filed June 9, 2015


This is a healthcare liability action, arising from alleged injuries to Appellant, Melba
Hughes. Mrs. Hughes‟ husband, Robert Hughes, filed this action against Appellee,
Henry County Medical Center (“HCMC”), and Dr. Donald Gold, who is not a party to
this appeal. Appellees moved to dismiss the action for failure to comply with the notice
requirement of Tennessee Code Annotated Section 29-26-121. Specifically, Appellee
challenged whether the medical authorization provided with the pre-suit notice letter was
compliant with Tennessee Code Annotated 29-26-121(a)(2)(E). An error in the medical
authorization form provided to HCMC did not permit HCMC to obtain medical records
from Dr. Gold. However, Dr. Gold saw the patient only at HCMC, and he had no records
independent of the hospital‟s records. Following a hearing on the motion, the trial court
dismissed the action without prejudice. Mr. and Mrs. Hughes timely filed their appeal.
We reverse and remand the matter to the trial court.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the trial court is Reversed and
                                    Remanded.

KENNY ARMSTRONG, J., delivered the opinion of the court, in which J. STEVEN
STAFFORD, P.J., W.S., and ARNOLD B. GOLDIN, J., joined.

Tamara L. Hill and T. Robert Hill, Jackson, Tennessee, for the appellants, Robert T.
Hughes and Melba Hughes.

Chris Tardio, Joshua R. Adkins, Nashville, Tennessee, for the appellee, Henry County
Medical Center d/b/a Lake Haven Behavioral Center.

                                       OPINION

                            I.    Factual History and Procedure
        On November 26, 2013, Appellants Robert and Melba Hughes filed a healthcare
liability complaint in the Henry County Circuit Court against Appellee Henry County
Medical Center (“HCMC”) and Dr. Donald Gold. The factual allegations in the
complaint concern the care and treatment Melba Hughes received at HCMC from
February 18, 2013 to March 4, 2013. However, those facts are not pertinent to this
appeal. HCMC and Dr. Gold both filed motions seeking dismissal of the lawsuit for
failure to comply with Tennessee Code Annotated section 29-26-121.

       HCMC and Dr. Gold both asserted, among other things, that the complaint failed
to conform to the statute because the notice did not include a HIPAA-compliant medical
authorization. Specifically, the medical authorization did not permit each health care
provider to obtain the complete medical records of the other provider receiving notice.
Appellants admitted that, due to a clerical error, the authorization submitted to HCMC
did not allow HCMC to obtain Dr. Gold‟s records. Instead, the authorization only
allowed HCMC to use its own records. The Appellants argue that this was not a
substantive deficiency because Dr. Gold only saw Mrs. Hughes at HCMC and had no
records independent of HCMC‟s records. Additionally, HCMC argued that its
subsidiary, Lake Haven Behavioral Center, was entitled to the protections of the
Tennessee Governmental Tort Liability Act.

        On February 20, 2014, the trial court issued an order dismissing the complaint
without prejudice. The trial court found that “the medical authorization provided by
[Appellants] did not allow each provider who is now a defendant to obtain and view the
records of the other providers. This obviously defeats the purpose of the notice statute.”
The court also found that the complaint violated Section 29-26-121(b) in that it did not
include a copy of the medical authorization that was served on HCMC. Concerning the
application of the GTLA, the trial court initially announced from the bench that
Appellants would be allowed (90) ninety days to conduct limited discovery on this issue
and that it would reserve a ruling until discovery was completed. However, in its order,
the trial court states that “in view of the rulings of the [c]ourt which have dismissed this
case, the issue regarding the application of the GTLA is now moot.”1

       On March 12, 2014, Appellants filed a motion asking the trial court to reconsider
its dismissal of the case. During the hearing, counsel for HCMC conceded that Dr. Gold
had no records, and there was no actual prejudice in view of this fact. However, HCMC
argued that the court did not need to reach the question of prejudice where there was
substantial non-compliance with the requirement for a HIPAA authorization. In its order,
entered August 22, 2014, the trial court found that the lack of actual prejudice to HCMC
1
 Our holding herein does not preclude the trial court from reviewing the issue of the applicability of the
GTLA upon remand.
                                                    2
was not determinative. Ultimately, the trial court concluded that Appellants “failed to
substantially comply with the presuit notice requirement of T.C.A. §29-26-121(a)(2)(E)
in that the [Appellants] admittedly did not provide a medical information release
authorization which allowed each defendant to receive the records of the other medical
providers.”
                                         I.     Issues

         Mr. and Mrs. Hughes appeal. They raise the following issues as presented in their
brief:

               1.   Whether the trial court erred in dismissing Appellants‟ complaint for
                    failure to authorize Defendants to obtain non-existent records.

               2.   Whether the trial court erred in requiring strict rather than substantial
                    compliance with Section 29-26-121.

               3.   Whether the trial court erred in refusing to consider HCMC‟s
                    admission that it was not prejudiced.

               4.   Whether the trial court erred in finding that the release provided to
                    Defendants did not comply with Section 29-26-121.

                                    II.    Standard of Review

      HCMC properly filed a motion to dismiss. Myers v. AMISUB (SFH), Inc., 382
S.W.3d 300, 307 (Tenn. 2012) (“The proper way for a defendant to challenge a
complaint's compliance with Tennessee Code Annotated section 29-26-121 is to file a
Tennessee Rule of [Civil] Procedure 12.02 motion to dismiss.”). The trial court's grant of
the motion to dismiss is subject to a de novo review with no presumption of correctness
because we are reviewing the trial court's legal conclusion. Blackburn v. Blackburn,
270 S.W.3d 42, 47 (Tenn. 2008); Union Carbide Corp. v. Huddleston, 854 S.W.2d 87,
91 (Tenn. 1993).

               The question of whether [plaintiff] has demonstrated
               extraordinary cause that would excuse compliance with the
               statutes is a mixed question of law and fact, and our review of
               that determination is de novo with a presumption of
               correctness applying only to the trial court's findings of fact
               and not to the legal effect of those findings.



                                              3
Myers, 382 S.W.3d at 307-08 (citing Starr v. Hill, 353 S.W.3d 478, 481-82 (Tenn.
2011)). This court reviews a “trial court's decision to excuse compliance under an abuse
of discretion standard.” Id. at 308. “A trial court abuses its discretion only when it
„applie[s] an incorrect legal standard or reache[s] a decision which is against logic or
reasoning that cause[s] an injustice to the party complaining.‟” Eldridge v. Eldridge, 42
S.W.3d 82, 85 (Tenn. 2001) (quoting State v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999)).
If a discretionary decision is within a range of acceptable alternatives, we will not
substitute our judgment for that of the trial court simply because we may have chosen a
different alternative. White v. Vanderbilt Univ., 21 S.W.3d 215, 223 (Tenn. Ct. App.
1999).
                                         III. Analysis

      Tennessee Code Annotated section 29-26-121 provides, in pertinent part:

             (a)(1) Any person, or that person's authorized agent, asserting
             a potential claim for health care liability shall give written
             notice of the potential claim to each health care provider that
             will be a named defendant . . . .

             (2) The notice shall include:

                                         ****

             (E) 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. Citing Stevens v. Hickman Cmty. Health Care Servs.,
Inc., 418 S.W.3d 547, 556 (Tenn. 2013), in its February 20, 2014 order, the trial court
held that the Appellants must substantially comply with Tennessee Code Annotated
section 29-26-121(a)(2)(E) unless the failure to do so is excused by extraordinary cause.

       HCMC argues that the trial court did not need to analyze prejudice because the
Appellants “plainly and entirely failed to substantially comply with the express
requirements of Tenn. Code Ann. §29-26-121(a)(2)(E).” However, in Stevens, our
Supreme Court states that, “[i]n 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. Not every non-compliant HIPAA medical
authorization will result in prejudice.” Stevens, 418 S.W.3d at 556 (emphasis added).
“The touchstone of this analysis is whether a party's procedural error resulted in actual
                                             4
prejudice to an opposing party.” Id. at 555. In this regard, HCMC‟s argument is
incorrect.

        Appellants argue that the trial court erred by refusing to consider the fact that the
mistake contained in the medical authorization did not cause any harm or prejudice to
HCMC because there were no records to obtain from Dr. Gold. HCMC counters that the
trial court correctly applied Stevens by weighing the nature and extent of Appellants‟
noncompliance against the lack of prejudice to Appellees, rather than deeming the lack of
prejudice as the determinative issue. In its August 22, 2014 order, the trial court states:

                This Court relied upon the decision in Myers and Stevens as
                the basis for the dismissal of the [Appellant‟s] lawsuit here.
                This Court determined that the plaintiffs had failed to
                substantially comply with the pre-suit notice requirement of
                T.C.A. §29-26-121(a)(2)(E) in that the plaintiff‟s admittedly
                did not provide a medical information release authorization
                which allowed each defendant to receive the records of the
                other medical providers. The Court then found this to be a
                substantive deficiency.

The order goes on to state that “Dr. Gold saw the patient only at Henry County Medical
Center and had no records independent of that facility.” The court further noted that
“HCMC has consistently agreed that there was no prejudice to it arising from
[Appellant‟s] non-compliance.” Despite these findings, the trial court fails to consider
the question of prejudice, but rather relies solely on its finding that Appellants did not
substantially comply with the HIPAA medical authorization.2

       HCMC argues that the plain language of Tennessee Code Annotated section 29-
26-121(a)(2)(E) requires the medical authorization to allow defendants to obtain
“complete medical records” from each of the other providers receiving notice. In this
case, however, it is undisputed that Dr. Gold had no medical records. As such, a release
for Dr. Gold‟s records would have no effect on HCMC‟s ability to obtain Mrs. Hughes‟
“complete medical records.” As discussed in Stevens:


2
         We note the trial court‟s reliance on the recent Tennessee Supreme Court case, Thurmond v.
Mid-Cumberland Infectious Disease Consultants, PLC, 433 S.W.3d 512, 513 (Tenn. 2014). Thurmond,
however, is clearly distinguishable from the instant case. The dispute in Thurmond did not involve a
failure to provide pre-suit notice, nor an allegation that the notice provided was deficient. Instead,
Thurmond addressed the question of what evidence is required to establish proof of service of the pre-suit
notice. Consequently, the Thurmond case is not relevant to the issues raised in this appeal.

                                                    5
             Tennessee Code Annotated § 29-26-121(a)(2)(E) 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. 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. See 45 C.F.R. § 164.508(a)(1) (“a covered
             entity may not use or disclose protected health information
             without an authorization that is valid under this section”).

Stevens, 418 at 555. In this case, HCMC was able to obtain all of the Appellants‟
relevant medical records, and evaluate the merits of the claim despite Appellants‟
technical failure to include Dr. Gold‟s records in its release. The Tennessee Supreme
Court has long recognized that “[d]ismissals based on procedural grounds ... run counter
to the judicial system's general objective of disposing of cases on the merits.” Henry v.
Goins, 104 S.W.3d 475, 481 (Tenn. 2003); see also Tenn. Dep't of Human Servs. v.
Barbee, 689 S.W.2d 863, 866 (Tenn. 1985) (“[T]he interests of justice are best served by
a trial on the merits....” (internal citations omitted)). The Tennessee Rules of Civil
Procedure and the Tennessee Rules of Appellate Procedure also reflect a general policy
in favor of the resolution of disputes on the merits. See Tenn. R. App. P. 1 (“These rules
shall be construed to secure the just, speedy, and inexpensive determination of every
proceeding on its merits.” (emphasis added)); Jones, 193 at 572 (“The Tennessee Rules
of Civil Procedure are intended to insure that cases and controversies be determined upon
their merits and not upon legal technicalities or procedural niceties.” (internal citations
omitted)).

        This Court has recently issued several opinions in which substantial
noncompliance with section 29-26-121(a)(E)(2) resulted in the dismissal of a healthcare
liability claim. See Roberts v. Prill, No. E2013-02202-COA-R3-CV, 2014 WL 2921930,
*5 (Tenn. Ct. App. June 26, 2014)(“[T]he form only permitted the use or disclosure of
the medical records by plainitff‟s counsel.”); Hawkins v. Martin, No. W2013-02102-
COA-R3-CV, 2014 WL 2854256, *1 (Tenn. Ct. App. June 23, 2014)(finding that the pre-
lawsuit notice did “not include medical authorization forms that complied with HIPAA,
so as to permit the defendants to obtain relevant medical records.”); Johnson v. Parkwest
Medical Center, No. E2013-01228-COA-R3-CV, 2014 WL 3765702, *7 (Tenn. Ct. App.
July 31, 2014), perm. app. denied (Tenn. Dec. 17, 2014)(“Without an appropriate
HIPAA-compliant medical authorization, Parkwest could not appropriately utilize those
records to mount a defense, even if the records were already in Parkwest‟s possession.”);
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Harmon v. Shore, No. M2014-01339-COA-R3-CV, slip op. at 3 (Tenn. Ct. App. April
23, 2015)(“Although Appellants mailed a HIPAA medical authorization to the Appellees,
the authorization only released [the patient‟s] medical records to her own lawyer.”) In all
of these cases resulting in dismissals, the defendants were prejudiced by the fact that they
were unable to obtain the patient‟s medical records due to some flaw in the medical
authorization.

        However, in Hamilton v. Abercrombie Radiological Consultants, Inc., E2014-
003433-COA-R3-CV, 2014 WL 7117802 (Tenn. Ct. App. December 15, 2014), perm.
app. denied (May 15, 2015), the date line on the medical release was intentionally left
blank for the medical provider to fill in so that the release form would not “become
stale.” Id. at *1. In that case, there was no evidence to support a finding that the
defendants were prejudiced and unable to obtain the necessary medical records. Id. at *5.
Consequently, this Court held that the relatively minor shortcoming in the HIPAA release
was not fatal to the appellant‟s cause of action. Id. at *7. Likewise, in the case of
Chambers ex rel. Chambers v. County, No. E2013-01064-COA-R10-CV, 2014 WL
1266101 (Tenn. Ct. App. Mar. 28, 2014), the sole issue on appeal was whether dismissal
was warranted because the plaintiff failed to file, with the complaint, an affidavit of the
party mailing the pre-suit notice. In affirming the trial court‟s denial of the motion to
dismiss, we held that “a plaintiff must substantially comply, rather than strictly comply,
with the requirements of Tenn. Code Ann. § 29-26-121(a).” Id. at *7. Specifically, we
held that:
              We cannot conclude that the legislature intended that each
              and every technical, but not material, deviation from the
              language of the statute could only be excused or corrected by
              a showing of extraordinary cause. Dismissal of a meritorious
              complaint even where the defendant had actual notice and
              allowing a defendant to participate in discovery and
              negotiations while waiting to raise technical objections is not
              consistent with the purposes of the statutory requirements for
              filing medical malpractice lawsuits.

Id. As in Chambers, HCMC‟s argument that the Appellants‟ case should be dismissed
elevates form over substance. The aim of Tenn. Code Ann. § 29-26-121 is to ensure that
prospective defendants receive adequate and timely notice of possible claims against
them. Here, HCMC received adequate and timely notice of the lawsuit and had a medical
release form that authorized it to use all of the relevant medical records. As discussed in
Chambers:

              If we were to accept the defendants' argument at face value,
              we would be forced to conclude that any deviation from the
                                             7
              strict letter of Tenn. Code Ann. § 29-26-121, no matter how
              small, would compel the courts to dismiss any medical
              malpractice claim asserted, no matter how meritorious. This
              would negate the strong preference of our law to resolve
              claims on their merits whenever possible.

Chambers, 2014 WL 1266101 at *6; accord Haley v. State, No. E2012-02484-COA-R3-
CV, 2013 WL 5431998 at *10-11 (Tenn. Ct. App. Sept. 25, 2013). HCMC admittedly
suffered no prejudice as a result of the medical authorization provided by Appellants.
Furthermore, HCMC does not deny that they received timely pre-suit notice containing
all of the items required by the statute. The purpose of the statute and the essence of the
thing to be accomplished, i.e., pre-suit notice to the defendant, have both been satisfied in
this case. See Myers, 382 S.W.3d at 309 (“The essence of Tennessee Code Annotated
section 29-26-121 is that a defendant be given notice of a medical malpractice claim
before suit is filed.”). Moreover, the goal of section 29-26-121(a)(2)(E) is to provide the
means necessary to “evaluate the substantive merits of a plaintiff's claim by enabling
early access to a plaintiff's medical records.” Here, that goal was clearly satisfied
because HCMC was authorized to use all of the patient‟s relevant medical records.
Stevens, 418 at 555.
                                         IV. Conclusion

      For the foregoing reasons, we reverse the order of the trial court. The case is
remanded for such further proceedings as may be necessary and are consistent with this
opinion. Costs of the appeal are assesed against the Appellee, Henry County Medical
Center d/b/a Lake Haven Behavioral Center, for all of which execution may issue if
necessary.


                                                  _________________________________
                                                  KENNY ARMSTRONG, JUDGE




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