                                                                                            08/23/2019
                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                                  June 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
                        ___________________________________


THOMAS R. FRIERSON, II, J., dissenting.

       I respectfully dissent from the majority’s decision to reverse the trial court’s
dismissal of this action. I believe that the trial court properly relied on this Court’s
majority opinion in Parks v. Walker, No. E2017-01603-COA-R3-CV, 2018 WL 6242461
(Tenn. Ct. App. Nov. 28, 2018), perm. app. denied (Tenn. Mar. 27, 2019), as an
analogous case. The trial court found that the plaintiff, Carl Short (“Plaintiff”), had failed
to substantially comply with Tennessee Code Annotated § 29-26-121(a)(2)(E) (Supp.
2018), which provides that written pre-suit notice shall include a HIPPA-compliant
medical authorization “permitting the provider receiving the notice to obtain complete
medical records from each other provider being sent a notice.” Inasmuch as the
authorizations in the instant action authorize each defendant to disclose medical records
to the other named medical providers but do not authorize each provider to request the
other providers’ records, I conclude that, as in Parks, Plaintiff’s authorizations are “not
sufficient to enable defendants to obtain plaintiff’s medical records” and are therefore not
substantially compliant with the statute. See Parks, 2018 WL 6242461, at *3.

       The majority distinguishes the facts in the case at bar from those in Parks because
the plaintiff in Parks, unlike the plaintiff in the instant action, had failed to state the
purpose of the medical authorizations. See id. at *3 (explaining that this lack of stated
purpose was a missing “core element” pursuant to 45 C.F.R. § 164.508(c)(1)(iv)).
However, upon careful review, I do not find that this Court’s majority decision in Parks
was dependent on the missing core element of a stated purpose. The Parks majority also
determined that the authorizations were not substantially compliant because the plaintiff
had failed to authorize requests of medical records from the other named providers even
though the plaintiff had included a list of the medical providers with each authorization
form. Id. at *3. Moreover, “substantial compliance, as it is used in the context of pre-suit
notice, does not refer solely to the number of satisfied elements, but rather to a degree of
compliance that provides the defendant with the ability to access and use the medical
records for the purpose of mounting a defense.” Lawson v. Knoxville Dermatology Grp.,
P.C., 544 S.W.3d 704, 711 (Tenn. Ct. App. 2017), perm. app. denied (Tenn. Nov. 16,
2017) (citing Stevens ex rel. Stevens v. Hickman Cmty. Health Care Servs., Inc., 418
S.W.3d 547, 555 (Tenn. 2013)).

       In Parks, the “authorizations provided to defendants only authorize[d] them ‘to
release, use or disclose’ plaintiff’s health records to the other providers listed in the
authorization.” Parks, 2018 WL 6242461, at *1. In noting the plaintiff’s argument 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,” the Parks trial court found that this proposition was not in keeping
with the requirements of the law because “to be effective, the authorization form must
allow a medical provider to obtain records from other providers.” Id. at *3. This Court’s
majority opinion “affirm[ed] the trial court’s holding that plaintiff’s authorization [was]
not sufficient to enable defendants to obtain plaintiff’s medical records.” Id. In the
instant action, the majority states that “to the extent this Opinion may conflict with Parks,
we submit that Parks was decided wrongly.” I respectfully disagree.1

       In the case at bar, the majority takes issue with the defendants’ selective reliance
on Plaintiff’s written notice letter, a copy of which accompanied each authorization sent
to individual defendants. I agree with the majority that “the notice letter either is to be
considered along with the authorization or it is not.” However, I conclude that combining
the plaintiff’s notice letter with the authorization form to create substantial compliance
impermissibly creates a compound authorization. As this Court has explained:

        [T]he [plaintiffs] assert that the document attached to their pre-suit notice,
        titled, “LIST OF HEALTH CARE PROVIDERS,” can supplement the
        HIPAA authorization to satisfy the requirement provided in 45 C.F.R. §
        164.508(c)(1)(ii). However, the Code of Federal Regulations, with certain
        exceptions not applicable here, specifically prohibits compound
        authorizations. See 45 C.F.R. § 164.508(b)(3) (“An authorization for use or
        disclosure of protected health information may not be combined with any
        other document to create a compound authorization . . . .”). This Court has
        previously “rejected the Plaintiffs’ contention that the authorization forms
        were sufficient when considered alongside the pre-suit notice letters that
        accompanied the forms.” See J.A.C. v. Methodist Healthcare Memphis
        Hosps., No. W2016-00024-COA-R3-CV, 542 S.W.3d 502, 514, 2016 WL
        6493229, at *8 (Nov. 2, 2016), perm. app. denied (Tenn. Mar. 9, 2017).

1
  I do, however, respectfully share in the majority’s suggestion that this matter may be suitable for final
resolution by our Supreme Court.
                                                   -2-
      Therefore, the [plaintiffs] could not combine their attached list of health
      care providers with the medical authorization in order to achieve substantial
      compliance.

Lawson, 544 S.W.3d at 712. In this case, the plaintiff failed to provide authorizations
permitting the defendants receiving the notice to “obtain complete medical records from
each other provider being sent a notice.” See Tenn. Code Ann. § 29-26-121(a)(2)(E).

        For the foregoing reasons, I submit that the trial court properly dismissed this
action for lack of substantial compliance with Tennessee Code Annotated § 29-26-
121(a)(2)(E). I therefore respectfully dissent from the majority’s decision to reverse the
trial court’s judgment.



                                                _________________________________
                                                THOMAS R. FRIERSON, II, JUDGE




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