                                                                                            05/28/2020
                IN THE COURT OF APPEALS OF TENNESSEE
                             AT JACKSON
                                January 15, 2020 Session

     JAVIER CARRASCO v. NORTH SURGERY CENTER, LP, ET AL.

                   Appeal from the Circuit Court for Shelby County
                     No. CT-005226-16 James F. Russell, Judge
                      ___________________________________

                            No. W2019-00558-COA-R3-CV
                        ___________________________________


This is a healthcare liability action resulting from injuries sustained by a guidewire left in
the plaintiff’s neck following a procedure. The defendants moved to dismiss the action
for failure to comply with notice requirements in Tennessee Code Annotated section 29-
26-121(a)(2)(E). The trial court dismissed the action without prejudice, and the plaintiff
appealed. We affirm.

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

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

W. Bryan Smith, Memphis, Tennessee, for the appellant, Javier Carrasco.

Mason Wilson and Heather Colturi, Memphis, Tennessee, for the appellee, North Surgery
Center, LP.

James T. McColgan, III and Barrett Frederick, Cordova, Tennessee, and Joseph L. Reese,
Jr., Birmingham, Alabama, for the appellees, Phillip Andrew Rojas, M.D., and Medical
Anesthesia Group.
                                                OPINION

                                          I. BACKGROUND

       Javier Carrasco (“Plaintiff”) filed this healthcare liability action on December 30,
     1
2016. Plaintiff alleged that the named providers, North Surgery Center, LP, Philip
Rojas, M.D., and Medical Anesthesia Group, PA (collectively, “Defendants”),
negligently provided medical care to Plaintiff during his admission at the North Surgery
Center in September 2015 following an August 2015 motor vehicle accident. Plaintiff
alleged that the treatment resulted in significant pain.

       Prior to filing the healthcare liability action, on August 31 and September 1, 2016,
Plaintiff mailed statutorily required documents to Defendants advising them that a
healthcare liability action would be asserted against them. The documents all included
the same three attached medical releases, but Plaintiff concedes that the authorizations
did not substantially comply with the requirements in Tennessee Code Annotated section
29-26-121(a)(2)(E).2 A revised set of documents was sent by Plaintiff on November 2,
2016, after the one-year statute of limitations had expired, to correct the compliance
issues in the August and September mailings. An enclosed letter stated that the medical
authorizations provided on August 31 and September 1, 2016, were “intentionally left
blank” and that counsel believed they complied with HIPAA3 and Tennessee law.
Enclosed with the November 2, 2016 documents was a fourth medical authorization that
referenced the medical records for a “Narinder Sanwal, Deceased” instead of Plaintiff.

        Defendants moved to dismiss Plaintiff’s complaint, arguing that the deficiencies in
the authorizations prevented Plaintiff from being able to use the extension to the statute
of limitations otherwise afforded in Tennessee Code Annotated section 29-26-121(c). A
plaintiff who complies with the notice provisions of Tennessee Code Annotated section
29-26-121, receives a 120-day extension of the applicable statute of limitations and
statute of repose. Tenn. Code Ann. § 29-26-121(c). The trial court ultimately dismissed
the complaint on June 23, 2017. After the trial court denied Plaintiff’s motion to alter,
amend, or set aside, Plaintiff timely filed this appeal.

         1
             The statute of limitations for Plaintiff’s claim expired on September 7, 2016.
         2
        Specifically, as to the initial authorizations, they contained blanks. One was dated
February 27, 2016, and the other two were dated April 13, 2016. They were entitled as follows:
(1) “Methodist LeBonheur Authorization to Release Medical Records,” (2) “Medical
Authorization In Accordance with 45 C.F.R. section 164.508(c)-HIPAA,” and “MSK Group, PC
Ortho Memphis.”
         3
         HIPAA refers to the Health Insurance Portability and Accountability Act of 1996, Pub.
L. No. 104-191, 110 Stat. 1936.
                                                   -2-
                                        II. ISSUES

        The following issues have been raised on appeal, which we restate and consolidate
as follows:

              A) Whether the trial court erred when it held that Plaintiff’s
              pre-suit notice to Defendants did not substantially comply
              with Tennessee Code Annotated section 29-26-121.

              B) Whether the trial court erred when it held that Plaintiff was
              not entitled to the 120-day tolling of the statute of limitations
              allowed by Tennessee Code Annotated section 29-26-121(c).

              C) Whether the trial court erred when it held that Defendants
              were prejudiced by Plaintiff’s insufficient pre-suit notice.


                             III. STANDARD OF REVIEW

       This court will not address the merits of the case; this is another in a long series of
cases determining the sufficiency of pre-suit notices and related documents that must be
served on potential defendants before the suit may be prosecuted. Our Supreme Court
has instructed that the proper way for defendants to challenge compliance with Tennessee
Code Annotated section 29-26-121 is to file a motion to dismiss under Rule 12.02 of the
Tennessee Rules of Civil Procedure. Myers v. AMISUB (SFH), Inc., 382 S.W.3d 300,
307 (Tenn. 2012). We review the trial court’s determinations on issues of law de novo,
with no deference to the trial court. Blackburn v. Blackburn, 270 S.W.3d 42, 47 (Tenn.
2008); J.A.C. by and through Carter v. Methodist Healthcare Memphis Hosps., 542
S.W.3d 502. 509 (Tenn. Ct. App. 2016).


                                    IV. DISCUSSION

       The statutory provision at issue in this dispute is Tennessee Code Annotated
section 29-26-121(a)(1-2), which provides,

              (a)(1) Any person, or that person’s authorized agent, asserting
              a potential claim for medical malpractice shall give written
              notice of the potential claim to each health care provider that
              will be a named defendant at least sixty (60) days before the
              filing of a complaint based upon health care liability in any
              court of this state.

                                            -3-
             (2) The notice shall include:

             (A) The full name and date of birth of the patient whose
             treatment is at issue;
             (B) The name and address of the claimant authorizing the
             notice and the relationship to the patient, if the notice is not
             sent by the patient;
             (C) The name and address of the attorney sending the notice,
             if applicable;
             (D) A list of the name and address of all providers being sent
             a notice; and
             (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(a)(1-2).

       We first address whether the trial court erred in holding that Plaintiff did not
substantially comply with the Tennessee Code Annotated section 29-26-121(a)(2)(E)
requirement to provide a HIPAA-compliant medical authorization “permitting the
provider receiving the notice to obtain complete medical records from each other
provider being sent a notice.” Id. Whether Defendants have been prejudiced is
considered in tandem with substantial compliance. See Stevens ex rel. Stevens v.
Hickman Cmty. Health Care Servs., Inc., 418 S.W.3d 547, 555 (Tenn. 2016). Our
Supreme Court recently reaffirmed Stevens, holding that “prejudice is not a separate and
independent analytical element” but rather a consideration relevant to determining
whether a plaintiff has substantially complied.” Martin v. Rolling Hills Hosp., LLC, __
S.W.3d __ , 2020 WL 2065528, at *7 (Tenn. Apr. 29, 2020)(quoting Stevens, 418 S.W.3d
at 556).

        As to HIPAA-compliant authorizations, the Code of Federal Regulations provides
as follows:

             (2) Defective authorizations. An authorization is not valid if
             the document submitted has any of the following defects:
             …(ii) The authorization has not been filled out completely
             with respect to an element described by paragraph (c) of this
             section . . . .

45 C.F.R. § 164.508(b). Paragraph (c) provides:

             A valid authorization under this section must contain at least
             the following elements:
                                          -4-
             (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 of 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 . . . .

             (v) An expiration date or an expiration event that relates to
             the individual or the purpose of the use or disclosure . . . .

             (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) (emphasis added). The comments to the HIPAA regulations
state that “[p]ursuant to § 164.508(b)(1), an authorization is not valid under the Rule
unless it contains all of the required core elements and notification statements.”
Standards for Privacy of Individually Identifiable Health Information, 67 Fed. Reg.
53182, 53220-21 (Aug. 14, 2002). The Tennessee Supreme Court has held that a medical
authorization should contain the six elements of information set forth in 45 C.F.R. §
164.508(c)(1)(i)-(vi) in order for it to be “HIPAA-compliant.” Stevens, 418 S.W.3d at
555.

      Plaintiff concedes that the initial notices sent in August and September of 2016
were not HIPAA-compliant medical authorizations. He contends, however, that the
November 2, 2016, release (“November Authorization”) corrected those errors, save one
typographical error.

      November Authorization, titled “AUTHORIZATION TO DISCLOSE HEALTH
INFORMATION,” correctly identifies the person making the authorization as Plaintiff,
provides his birth date, and provides his Social Security Number. Paragraph 1 of the
document appropriately identifies the uses and purposes of the disclosure; Paragraph 2
appropriately identifies who may make the disclosure; and Paragraph 5 appropriately
                                          -5-
identifies to whom disclosure may be made. Plaintiff authorized each recipient to obtain
his medical records from one another. The typographical error in Paragraph 3 identifying
what information may be used or disclosed names “Narinder Sanwal, Deceased” instead
of Plaintiff.

       Our Supreme Court allows for imperfect compliance:

              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). . . . [Tennessee Code
              Annotated § 29-26-121(a)(2)(e)] 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.”

Stevens, 418 S.W.3d at 554. However, medical authorizations must allow defendants to
obtain and review relevant medical records. Id. at 555. One of HIPAA’s functions is
preventing medical providers from using medical records without fully compliant
authorization forms, and reviewing courts should consider the extent of prejudice
suffered by defendants with noncompliance. Id. at 556. Substantial compliance requires
“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).

       The August and September releases provided here, with blanks and incorrect
dates, were not HIPAA-compliant. November Authorization,4 even if HIPAA-compliant,
was sent to Defendants after the one-year statute of limitations had expired. Thus, it
could not be used to supplement the admittedly defective authorizations that were
provided within the statute of limitations. Because Plaintiff did not establish substantial

       4
         November Authorization was sent less than 60 days before Plaintiff filed the complaint,
a violation of Tennessee Code Annotated section 29-26-121(a)(1).                Blankenship v.
Anesthesiology Consultants Exch., P.C., 446 S.W.3d 757, 758 (Tenn. Ct. App. 2014). Pre-suit
notice is mandatory, and section 29-26-121(a)(1) demands strict compliance. Myers, 382
S.W.3d at 309. The consequence for failure to give pre-suit notice is dismissal of the lawsuit.
Foster v. Chiles, 467 S.W.3d 911, 915-16 (Tenn. 2015).

                                             -6-
compliance with Tennessee Code Annotated section 29-26-121(a), he is not entitled to
the 120-day extension of the statute of limitations,5 and his claim is time-barred.

                                      V. CONCLUSION

       The judgment of the trial court is affirmed, and the case is remanded for such
further proceedings as may be necessary. Costs of the appeal are assessed to the
appellant, Javier Carrasco.




                                                          ___________________________
                                                          JOHN W. MCCLARTY, JUDGE




      5
          Tennessee Code Annotated section 29-26-121(c) provides that:

      …(c) When notice is given to a provider as provided in this section, the applicable
      statutes of limitations and repose shall be extended for a period of one hundred
      twenty (120) days from the date of expiration of the statute of limitations and
      statute of repose applicable to that provider….

Tenn. Code Ann. § 29-26-121(c).
                                              -7-
