               IN THE COURT OF APPEALS OF TENNESSEE
                          AT KNOXVILLE
                               October 01, 2014 Session

   DAVID W HAMILTON, ET AL v. ABERCROMBIE RADIOLOGICAL
                 CONSULTANTS, INC., ET AL

                   Appeal from the Circuit Court for Knox County
                      No. 144311    Dale C. Workman, Judge




            No. E2014-00433-COA-R3-CV-FILED-DECEMBER 15, 2014




This is a health care liability action, arising from the death of Decedent, David Hamilton.
Decedent’s surviving spouse, Donna Hamilton (Appellant), filed this action against
Appellees, Abercrombie Radiological Consultants, Inc. and Dr. Donna K. Culhane.
Appellees moved to dismiss the action for failure to comply with the notice requirement of
Tennessee Code Annotated Section 29-26-121 et seq. Specifically, the Appellees challenged
whether the medical release provided with the pre-suit notice letter was compliant with the
Health Information Portability and Accountability Act (“HIPAA”). The trial court agreed
with Appellees and dismissed the action with prejudice. Appellant timely appealed. We
reverse and remand the matter to the trial court.

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


K ENNY A RMSTRONG, J., delivered the opinion of the Court, in which J. S TEVEN S TAFFORD,
P.J., W.S., and T HOMAS R. F RIERSON, II, J., joined.

Sidney W. Gilreath, Cary L. Bauer, and Matthew B. Long, Knoxville, Tennessee, for the
appellant, Donna L. Hamilton.

James H. London, Jennifer P. Taylor, and Andrew R. Tillman, Knoxville, Tennessee, for the
appellees, Abercrombie Radiological Consultants, Inc. and Donna K. Culhane, M.D.


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                                          OPINION

                                       I. Background

On May 12, 2010, Decedent was transported to Mercy Medical Center-North where he
presented with “mental status changes and bowel and bladder incontinence.” A CT scan was
ordered with the indications for CT scan listed as “Syncopal episode found unresponsive with
history of hypertension.” Appellee, Dr. Donna K. Culhane, an employee of Appellee
Abercrombie Radiological Consultants, Inc., read the CT scan and interpreted it as a “stable
negative head CT.” Instead, the subject CT scan, according to Appellant, demonstrated
“swelling and occlusion of the left middle cerebral artery.” Decedent’s condition at the time
of admission did not improve, and on May 13, 2010, an MRI was ordered. The MRI
conducted that same day showed a developing ischemic stroke on the left side of Decedent’s
brain. The following day, on May 14th , Decedent suffered a diffuse left middle cerebral
artery distribution stroke and died.

On August 31, 2011, Appellant Donna L. Hamilton filed this action against the Appellees
for medical malpractice and the wrongful death of her husband.1 In her complaint, Appellant
asserts that Dr. Culhane’s failure to correctly interpret the Decedent’s CT scan resulted in
him not receiving the appropriate medical treatment, which ultimately led to the stroke that
caused his death. In anticipation of filing this health care liability action, on January 20,
2010, Appellant had one of her attorneys send a pre-suit notice letter to each of the
Appellees. Each notice letter included a HIPAA medical release. The medical release,
however, had an open date line. According to Appellant, the date line was intentionally left
open so that Appellees could fill it in at their convenience, and so the release form would not
“become stale.”

On January 15, 2014, the Appellees moved to dismiss the complaint filed herein for
noncompliance with Tennessee Code Annotated Section 29-26-121(a)(2)(E). In support of
their motion, the Appellees asserted that the Appellant failed to include, with her notice
letter, a HIPAA compliant medical authorization for the release of Decedent’s medical
records. While the medical release was signed by an authorized party, Appellees argued it


       1
         Although Appellant styles her case as a “medical malpractice” action, we note that,
effective April 23, 2012, the Tennessee General Assembly passed legislation replacing the term
“medical malpractice” with “health care liability” in every place in the Tennessee Code. See Act
of April 23, 2012, ch. 798, 2012 Pub. Acts.

                                               2
was not dated as required pursuant to Tennessee Code Annotated Section 29-26-121 et seq.
and federal regulations, 45 C.F.R. §164.508.

The trial court heard the motion to dismiss on January 24, 2014. Following the hearing, by
order dated February 6, 2014, the trial court granted Appellees’ motion to dismiss, ruling in
relevant part that:

              Specifically, the Court finds that the medical authorization
              included in the pre-suit notice provided by Plaintiff to
              Abercrombie Radiological Consultants, Inc., and Donna K.
              Culhane, M.D., was non-HIPAA compliant. Consequently the
              providers that received pre-suit notice from Plaintiff were
              prejudiced by being unable to obtain copies of Plaintiff’s
              decedent’s relevant medical records during the pre-suit notice
              period.
                     It is hereby ORDERED, that the Motion to Dismiss of
              Defendant, Abercrombie Radiological Consultants, Inc., and
              Donna K. Culhane, M.D., is GRANTED. The Court further
              finds and holds that the proper sanction for Plaintiff’s failure to
              comply with Tennessee Code Annotated §29-26-121(a)(2)(E) is
              dismissal with prejudice, as Plaintiff’s case was therefore filed
              outside the applicable statute of limitations. Accordingly, this
              action against these Defendants is hereby dismissed with
              prejudice.

Appellant filed a timely appeal.

                                          II. Issues

       The issues raised by Appellant are as follows:

              1. Whether dismissal is the proper sanction for an open date line
              on a HIPAA form that accompanies notice in a health care
              liability action under Tennessee Code Annotated Section 29-26-
              121?

              2. Whether dismissal, if proper, should be with full prejudice?




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                                  III. Standard of Review

In this action, Appellees 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 Procedure 12.02 motion to dismiss.”). In Myers, the Court further
provided as follows:

              In the motion, the defendant should state how the plaintiff has
              failed to comply with the statutory requirements by referencing
              specific omissions in the complaint and/or by submitting
              affidavits or other proof. Once the defendant makes a properly
              supported motion under this rule, the burden shifts to the
              plaintiff to show either that it complied with the statutes or that
              it had extraordinary cause for failing to do so. Based on the
              complaint and any other relevant evidence submitted by the
              parties, the trial court must determine whether the plaintiff has
              complied with the statutes. If the trial court determines that the
              plaintiff has not complied with the statutes, then the trial court
              may consider whether the plaintiff has demonstrated
              extraordinary cause for its noncompliance.

Id. 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 [a 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.” 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).

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This appeal also involves the interpretation of statutes. Statutory construction is a question
of law that is reviewed de novo without any presumption of correctness. In re Estate of
Tanner, 295 S.W.3d 610, 613 (Tenn.2009). This court’s primary objective is to carry out
legislative intent without broadening or restricting the Act beyond its intended scope.
Houghton v. Aramark Educ. Res., Inc., 90 S.W.3d 676, 678 (Tenn. 2002). In construing
legislative enactments, we presume that every word in a statute has meaning and purpose and
should be given full effect if the obvious intention of the legislature is not violated by so
doing. In re C. K.G., 173 S.W.3d 714, 722 (Tenn.2005). When a statute is clear, we should
apply the plain meaning without complicating the task. Eastman Chem. Co. v. Johnson, 151
S.W.3d 503, 507 (Tenn.2004).

                                        IV. Analysis

Our Supreme Court has recently explained that substantial compliance with Tennessee Code
Annotated Section 29-26-121 et seq. is the proper standard in determining whether the
contents of the pre-suit notice meet the statutory requirements. See Thurmond v.
Mid–Cumberland Infectious Disease Consultants, PLC, 433 S.W.3d 512 (Tenn. 2014). As
explained in Thurmond:

                      In Myers, we declared that the “essence” of the pre-suit
              notice statute is to notify potential defendants “of a [health care
              liability] claim before suit is filed.” 382 S.W.3d at 309 (stating
              that section 29-26-121(a) is “to give prospective defendants
              notice of a forthcoming lawsuit”). Thus, we concluded that the
              section 29-26-121(a) requirement of pre-suit notice is
              “fundamental,” “mandatory,” and “not subject to satisfaction by
              substantial compliance.” Id. at 309, 310. Because no pre-suit
              notice of any kind had been given or even attempted in Myers,
              we did not decide whether the statutory “requirements as to the
              content of the notice ... may be satisfied by substantial
              compliance.” Id. at 311.
                      We answered that question in Stevens, where the plaintiff
              attempted to comply with the pre-suit notice requirement but
              failed 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.”
              418 S.W.3d at 552 (quoting Tenn. Code Ann. § 29-26-
              121(a)(2)(E)). We explained that the pre-suit notice content
              requirements of Tennessee Code Annotated section 29-26-
              121(a)(2)(A)-(E) serve distinct but related purposes. Id. at 554.

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              We held that where strict compliance with “a particular statutory
              provision is essential to avoid prejudicing an opposing litigant,”
              then the statutory provision will be deemed mandatory and strict
              compliance required. Id. at 555. After considering the purposes
              served by the HIPAA-compliant medical authorization, we
              concluded that a plaintiff cannot satisfy this content requirement
              merely by providing potential defendants with actual notice of
              a potential claim. Id. However, we stopped short of interpreting
              the statute as demanding strict compliance. Id. Rather, we held
              that “[n]on-substantive errors and omissions” and “[a] plaintiff’s
              less-than-perfect compliance” with [subsection] 29-26-
              121(a)(2)(E) will “not derail a healthcare liability claim” so long
              as the medical authorization provided is “sufficient to enable
              defendants to obtain and review a plaintiff's relevant medical
              records.” Id. Thus, we held that “a plaintiff must substantially
              comply, rather than strictly comply, with the requirement[ ] of
              [subsection] 29-26-121(a)(2)(E).” Id.
                      Myers and Stevens thus instruct that: (1) providing
              potential defendants pre-suit notice of health care liability
              claims is the “essence” and “fundamental” purpose of the
              pre-suit notice requirement, Myers, 382 S.W.3d at 309; and (2)
              unless strict compliance with a notice content requirement “is
              essential to avoid prejudicing an opposing litigant,”
              substantial compliance with a content requirement will suffice, Stevens, 418 S.W.3d at 555

Thurmond, 433 S.W.3d at 519-20 (Tenn. 2014) (footnote omitted).

In Stevens, the plaintiff filed the required 60-day pre-suit notice but failed to include a
HIPAA compliant medical authorization form. Stevens, 418 S.W.3d at 551. The form
provided by plaintiff was deficient because it failed to permit “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). Defendants sought dismissal based upon plaintiff's
failure to fully comply with section 29-26-121(a)(2). The trial court denied the motion, and
the Tennessee Supreme Court granted the defendants’ application for permission to appeal.
The Court held that plaintiff was merely required to “substantially comply” with the content
requirements set forth in section 29-26-121(a)(2). Id. at 554-55. Despite that finding, the
Court ultimately held that plaintiff had not substantially complied with the content
requirements. In so holding, the Court stated:

              In determining whether a plaintiff has substantially complied

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              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. But in this case, the
              medical authorization submitted by Plaintiff was woefully
              deficient. The errors and omissions were numerous and
              significant. Due to Plaintiff's material noncompliance,
              Defendants were not authorized to receive any of the Plaintiff's
              records. As a result of multiple errors, Plaintiff failed to
              substantially comply with the requirements of [section
              29–26–121(a)(2)(E) ].

Id. at 556. As further discussed in Stevens, Tennessee Code Annotated Section 39-36-
121(a)(2)(E) “serves to equip defendants with the actual means to evaluate the substantive
merits of plaintiff’s claim by enabling early access to a plaintiff’s medical records.” Stevens,
418 S.W.3d at 555. The Stevens Court went on to note that “[b]ecause 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.” Id. (citing 45 C.F.R. §164.508(a)(1)).

Regarding the requirements for a valid HIPAA authorization, federal regulations state:

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

                                               7
              description of such representative’s authority to act for the
              individual must also be provided.

45 C.F.R. § 164.508(c)(1). Here, Appellees argue that Appellant’s HIPAA form is deficient
because it does not comply with the requirement set out at 45 C.F.R. §164.508(c)(1)(vi), i.e.,
“[s]ignature of the individual and date. . . .” (Emphasis added). Indeed, 45 C.F.R. §
164.508(c)(1) states that in order to be a valid HIPAA authorization, the form “must contain
these elements [i.e., those outlined at 45 C.F.R. § 164.508(c)(1)(i)–(vi)].” (Emphasis added).

In the recent case of Hargrow v. Shelby County Tennessee, No. 13–2770, 2014 WL
3891651 (W.D. Tenn. Aug. 7, 2014), the District Court held:

              45 C.F.R. § 164.508 governs the elements of a valid HIPAA
              authorization form. See C.F.R. § 164.508(c)(1). Because minor
              deviations will not always defeat the purpose of the disclosure
              requirement stated in the statute, Tennessee courts require
              substantial rather than strict compliance with the HIPAA notice
              provision. Stevens ex rel. Stevens v. Hickman Cmty. Health
              Care Servs., Inc., 418 S.W.3d 547, 555 (Tenn.2013).
                      To determine substantial compliance, courts “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. Defendants are clearly prejudiced
              when unable, due to a form procedural error, to obtain medical
              records needed for their legal defense. Id.
                      Hargrow’s HIPAA authorization form substantially
              complies with § 29-26-121(a)(2)(E). The form fails to provide
              the name and address of the provider releasing the records and
              fails to provide contact information for the intended recipient.
              HIPAA requires both. 45 C.F.R. § 164.508(c)(1)(ii)-(iii).
              Nevertheless, those omissions did not prejudice CCS because
              CCS was the sole medical provider. The form complies with the
              other provisions of 45 C.F.R. § 164.508(c)(1). It provides a
              description of the information to be used, a general description
              of each purpose of the disclosed information, an expiration date,
              a signature, and the date. Hargrow substantially complied with
              § 29-26-121(a)(2)(E) because she provided CCS sufficient
              notice to obtain the medical records necessary for its defense.
              See Stevens ex rel, 418 S.W.3d at 555.



                                              8
Hargrow, 2014 WL 3891651, at *6 (parenthetical citations to the record omitted). In holding
that a HIPAA authorization does not have to comport with every criterion set out in the
federal regulations in order to be valid, the Hargrow case demonstrates the practical
application of the Tennessee Supreme Court’s holding in Myers that “[t]o determine whether
the use of the word ‘shall’ in a statute is mandatory or merely directory, we look to see
‘whether the prescribed mode of action is of the essence of the thing to be accomplished.’”
Myers, 382 S.W.3d at 309. In Hargrow, the defendant was able to obtain the medical
records, which is the “essence of the thing to be accomplished” by the federal criteria
concerning the validity of the HIPAA authorization. In this regard, the Hargrow defendant
“was [not] prejudiced by the plaintiff’s noncompliance.” Stevens, 418 S.W.3d at 556.

Here, the only allegation of error in the HIPAA form is the missing date that is required
under C.F.R. §164.508(c)(1)(vi). In her brief, Appellant explains that she

              chose to leave the date line on the HIPAA form blank as a blank
              check to Defendants, allowing them to fill in the date as they use
              it so that the form would not “become stale.” The open date line
              is the only alleged omission in this case, and was done as a
              courtesy.

In support of her argument that this minor non-compliance with the HIPAA authorization
requirement should be excused, Appellant first argues that “[t]he trial court did not ‘consider
the significance of the plaintiff’s errors and omissions and whether the defendant was
prejudiced by the plaintiff’s noncompliance.’” Although, as set out in its order, the trial court
made a specific finding that the defendants were prejudiced in this case by being unable to
obtain the medical records because of the defective HIPAA authorization, there is nothing
in the record to support this finding by the trial court. Indeed, there is no indication that the
Appellees were denied access to any medical records sought as a result of the HIPAA form
provided by the Appellant. In that there is no basis in the record to support the trial court’s
finding of prejudice, we do not rely on that holding in reviewing this case.

Appellant further argues that the trial court misapplied the Stevens holding. In support of
this argument, Appellant cites the following interchange from the January 24, 2014 hearing
on the motion to dismiss:

              THE COURT: I’m dismissing your case—as to their motion,
              you did not give a HIPAA compliance.
                     The Supreme Court has said—and I previously have
              ruled that it’s substantial and that leaving off minor things
              wouldn’t affect anything. The Supreme Court says if you don’t

                                               9
              cross every “t,” dot every “i,” you’re out.
              [APPELLANT’S LAWYER]: Your Honor, again, the case that
              you’re relying on for that proposition [i.e., Stevens] says that
              you can show substantial compliance and that substantial
              compliance combined with a lack of prejudice to the defendant
              is enough to not warrant dismissal; or, at a minimum, to warrant
              dismissal without prejudice—
              THE COURT: Well, it says in the opinion, the whole purpose of
              it is so that the party can get access to this stuff to try to deal
              with the case before it’s filed. And if you don’t give them
              something where they can get that, then you have prejudiced
              them. The motion is granted.

Based upon the foregoing discussion, it is clear that the trial court mis-spoke when it said that
the Stevens Court held that “if you don’t cross every ‘t,’ dot every ‘i,’ you’re out.” However,
it is well settled that a court speaks through its orders. Palmer v. Palmer, 562 S.W.2d 833,
8 3 7 ( T e n n . C t . A p p .1 9 7 7 ). In C u n n in g h a m v . C u n n i n g h a m , N o .
W2006–02685–COA–R3–CV, 2008 WL 2521425 (Tenn. Ct. App. June 25, 2008), this Court
explained:

              A judgment must be reduced to writing in order to be valid. It is
              inchoate, and has no force whatever, until it has been reduced to
              writing and entered on the minutes of the court, and is
              completely within the power of the judge or Chancellor. A judge
              may modify, reverse, or make any other change in his judgment
              that he may deem proper, until it is entered on the minutes, and
              he may then change, modify, vacate or amend it during that
              term, unless the term continues longer than thirty days after the
              entry of the judgment, and then until the end of the thirty days.

 Cunningham, 2008 WL 2521425, at *5 (citing Broadway Motor Co ., Inc. v. Fire Ins. Co.,
12 Tenn. App. 278, 280 (1930)). Consequently, we usually “do not review the court’s oral
statements, unless incorporated in a decree, but review the court’s order and judgments for
that is how a court speaks.” Id. Although the trial court clearly mis-states the Stevens
holding in its statements from the bench, these statements were not incorporated into the
court’s order. However, from our review of the court’s order, it nonetheless appears to
extend the Stevens holding: “[T]he. . . decision in Stevens. . . is authoritative and requires
dismissal of Plaintiff’s action due to her failure to substantially comply with Tennessee Code
Annotated §29-26-121(a)(2)(E).” We conclude that the Stevens holding allows more leeway
regarding HIPAA compliance than the trial court gave in this case. As set out in full context

                                               10
above, the Stevens Court held that “[n]on-substantive errors and omissions” and “[a]
plaintiff’s less-than-perfect compliance” with [subsection] 29-26-121(a)(2)(E) will “not
derail a healthcare liability claim” so long as the medical authorization provided is “sufficient
to enable defendants to obtain and review a plaintiff's relevant medical records.” Stevens,
418 S.W.3d at 555. Thus, we held that “a plaintiff must substantially comply, rather than
strictly comply, with the requirement[ ] of [subsection] 29-26-121(a)(2)(E).” Id.

In their brief, Appellees rely, inter alia, on the recent case of Roberts v. Prill, No.
E2013–02202–COA–R3–CV, 2014 WL 2921930 (Tenn. Ct. App. June 26, 2014), as
authority on the issue of whether Appellant’s decision to leave “an open date line” on the
HIPAA authorization is fatal to her case. In Roberts, as in the instant case, plaintiff admitted
“that she intentionally left sections of the [HIPAA] form blank and anticipated that
defendants would fill in the form.” Id. at *6. Also, in Roberts, the plaintiff argued that
“there [was] no proof in the record of any failed attempt to gain the records of [decedent];
where parts of the release were left blank for the defendants[’] insertion and where there was
only one doctor Defendant who would have already had all the relevant records.” Id.
Although there are some similarities between Roberts and the instant case, the omissions in
the HIPAA form in Roberts were more substantial than in our case. In Roberts, the plaintiff
failed to specifically identify “the person(s) or class of persons authorized to make the
requested use or disclosure” and “the person(s), or class of persons, to whom the covered
entity may make the requested use or disclosure.” More importantly, the form only permitted
the use or disclosure of the medical records to plaintiff’s counsel. Due to plaintiff’s errors,
defendants in Roberts were not legally authorized to use the pertinent medical records to
mount a defense, despite the fact that the records may have already been in their possession.
In light of these facts, the Roberts Court affirmed dismissal of the lawsuit for failure to
substantially comply with Tennessee Code Annotated Section 29-26-121(a)(2)(E). Id. at *5.

In this case, despite the trial court’s holding that Appellees were prejudiced by failure to
obtain the medical records due to the non-compliant HIPAA release, no evidence was
adduced to support this finding. In addition, here, as in Roberts, the decedent’s medical
records may, in fact, be held by the defendant, ARC, and may be accessible to Dr. Culhane
by virtue of her employment with ARC. In Roberts, this Court rejected the argument that
because the pertinent medical records were already in the defendants’ possession, this fact
should result in a holding excusing full compliance with the statutory requirements.
However, in Roberts, the HIPAA release only permitted use or disclosure of the medical
records to plaintiff’s counsel. In the instant case, the medical release included no such
limitation. While the release had an open date line, it allowed disclosure to the Appellees,
which is a critical distinction between this case and Roberts.

We read the Roberts holding in light of the particular shortcomings in the Roberts HIPAA

                                               11
form, which, as discussed above, were more substantive and substantial than the omitted date
on the HIPAA form in the instant case. The relatively minor omission on Appellant’s
HIPAA form, coupled with the lack of evidence that Appellees were prejudiced or otherwise
denied access to medical records as a result of the missing date, leads us to conclude that the
trial court applied the Stevens holding too harshly in this case. While we concede that it is
not good practice to omit any of the C.F.R. criteria from a HIPAA form, we conclude that
the relatively minor shortcoming in the HIPAA form here is not fatal to the Appellant’s cause
of action. The Appellant substantially complied with § 29-26-121(a)(2)(E) because she
provided Appellees sufficient notice to obtain the relevant medical records. Hargrow, 2014
WL 3891651, at *6 (citing Stevens, 418 S.W.3d at 555). Because we hold that the trial court
erred in dismissing the complaint, we pretermit Appellant’s issue concerning whether the
dismissal with prejudice was proper.

For the foregoing reasons, we reverse the order of the trial court. We remand the case for
such further proceedings as may be necessary and are consistent with this opinion. Costs of
the appeal are assessed against the Appellees, Abercrombie Radiological Consultants, Inc.,
and Donna K. Culhane, M.D., for all of which execution may issue if necessary.




                                                   _________________________________
                                                     KENNY ARMSTRONG, JUDGE




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