                                                                                                          04/18/2019
                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                                    February 19, 2019 Session

       STEVEN WILLIAMS1 v. GATEWAY MEDICAL CENTER, ET AL.

                  Appeal from the Circuit Court for Montgomery County
                       No. CC16CV2392        Ross H. Hicks, Judge
                        ___________________________________

                               No. M2018-00939-COA-R3-CV
                           ___________________________________


In this health care liability action, the trial court dismissed the plaintiff’s claims for
failure to substantially comply with the requirements of Tenn. Code Ann. § 29-26-
121(a)(2)(E) upon determining that the plaintiff’s pre-suit notice failed to include a
HIPAA-compliant medical records authorization. The trial court found that the medical
records authorizations provided by the plaintiff failed to include a “[d]escription of
information to be used or disclosed” and an expiration date. The trial court further
determined that these deficiencies prejudiced the defendants from mounting a defense
because they were unable to obtain the relevant medical records. As a result, the
plaintiff’s claims were dismissed without prejudice. The plaintiff timely appealed. We
consider the plaintiff’s omission of an expiration date insignificant. The HIPAA form
provided by the plaintiff failed to substantially comply with the statute because it did not
include a description of the information to be used or disclosed, thereby causing prejudice
to the defendants. We, therefore, affirm the trial court’s dismissal of the plaintiff’s
claims.

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

ANDY D. BENNETT, J., delivered the opinion of the court, in which THOMAS R. FRIERSON,
II, and RICHARD H. DINKINS, JJ., filed separate opinions concurring in part and dissenting
in part.

Marvin B. Berke, Chattanooga, Tennessee, for the appellant, Steven Williams.


        1
          Although the complaint heading lists “Steven Williams, individually and as next of kin for the
wrongful death beneficiaries of Melissa L. Johnson Williams, deceased” as the “plaintiff,” no other
beneficiaries are named within the appellate record or appear to be participating in this appeal. Therefore,
for simplicity, we will refer to Mr. Williams throughout this opinion as the plaintiff/appellant.
Dixie W. Cooper and Kim J. Kinsler, Nashville, Tennessee, for the appellees, Clarksville
OB/GYN Associates, P.C., and Jennifer Harris Johnston, M.D.

                                             OPINION

                        I. FACTUAL AND PROCEDURAL BACKGROUND2

       On September 4, 2015, Melissa Williams was admitted to Gateway Medical
Center for the purpose of having a hysterectomy performed by Dr. Jennifer Harris
Johnston. Following the operation, Ms. Williams developed a deep vein thrombosis; she
died on September 8, 2015. Steven Williams, Ms. Williams’s husband, filed a health
care liability action in the Circuit Court of Montgomery County on November 4, 2016.
Mr. Williams’s complaint alleged that Dr. Johnston and Gateway Medical Center failed
to prescribe or administer anticoagulant medications to Ms. Williams, which was a
violation of the standard of care due to Ms. Williams’s history of diabetes, and made her
susceptible to post-surgical blood clots.3 Mr. Williams alleged that this violation of the
standard of care caused his wife’s death.

       Mr. Williams provided the defendants with the pre-suit notice required by Tenn.
Code Ann. § 29-26-121 on August 24, 2016. The pre-suit notice included HIPAA
authorizations, but these authorizations failed to include “a description of information to
be used or disclosed” and an expiration date. 45 C.F.R. § 164.508(c)(1)(i), (v). On
December 19, 2016, Clarksville Health System, GP (formerly Gateway Medical) (“the
Hospital”) filed an answer, denying that Dr. Johnston was an employee. The Hospital
further denied any departure from the applicable standard of care by its staff in the care of
Ms. Williams.

       On January 9, 2017, Dr. Johnston and Clarksville OB/GYN Associates, P.C.
(“Clarksville OB/GYN”), filed a motion to dismiss, pursuant to Tenn. R. Civ. P. 12,
asserting that the medical authorizations accompanying the pre-suit notice were deficient.
In their motion, Dr. Johnston and Clarksville OB/GYN outlined that the medical
authorizations provided by Mr. Williams had failed to include a “description of the
information to be used or disclosed” or an expiration date. As a result of these missing
components, Dr. Johnston and Clarksville OB/GYN asserted, they were unable to obtain
Ms. Williams’s medical records from the Hospital because Dr. Johnston was not an

       2
           The authoring judge acknowledges and appreciates Judge Frierson’s contributions to this
opinion.
       3
         Although the complaint named other medical defendants, those defendants filed answers
denying that they provided any care to Ms. Williams. The claims against those defendants were
subsequently nonsuited by Mr. Williams. The only defendants participating in this appeal are Clarksville
OB/GYN Associates, P.C., and Jennifer Harris Johnston, M.D.

                                                 -2-
employee of the Hospital and had no access to its records.       The Hospital also filed a
motion to dismiss on February 8, 2017.

       After hearing oral arguments concerning the motions to dismiss, the trial court
entered an order on February 28, 2017, determining that the motions to dismiss would be
held in abeyance due to the pendency of a Tennessee Supreme Court case with the
potential to be dispositive of the motions. Ultimately, the case was not dispositive, and
Dr. Johnston and Clarksville OB/GYN filed a renewed motion to dismiss on January 29,
2018.

       On March 23, 2018, the trial court entered an order in which it concluded that Mr.
Williams’s pre-suit notice failed to include a HIPAA-compliant medical records
authorization and therefore failed to substantially comply with Tenn. Code Ann. § 29-26-
121(a)(2)(E). Because the authorizations failed to include a “description of information
to be used or disclosed” or an expiration date, the court determined that Dr. Johnston was
prejudiced because she was unable to obtain the relevant medical records from the
Hospital to mount a defense. As a result, the court dismissed without prejudice the
claims against Dr. Johnston.

        On April 16, 2018, Mr. Williams filed a motion pursuant to Tenn. R. Civ. P. 59.
In this motion, Mr. Williams argued that the medical records authorizations provided to
the defendants were sufficient and that there had been no demonstration that Dr. Johnston
and Clarksville OB/GYN could not obtain the relevant records. Mr. Williams asserted,
inter alia, that the records “were all stored in one place and were together at the hospital
and were accessible to both Defendants.” Mr. Williams further asserted that Dr. Johnston
and Clarksville OB/GYN “were instructed to fill out the balance of the HIPAA release,
but did not do so.” Mr. Williams subsequently filed a notice of voluntary nonsuit
regarding his claims against all defendants except Dr. Johnston and Clarksville OB/GYN.

      On May 7, 2018, the trial court entered an order denying Mr. Williams’s Rule 59
motion. Finding that the plaintiff merely sought to relitigate matters that had already
been adjudicated, the court reaffirmed the dismissal of all claims against Dr. Johnston
and Clarksville OB/GYN. Mr. Williams timely appealed.

                                  II. ISSUES PRESENTED

       Mr. Williams presents the following issues for review:

       1.     Whether the trial court erred by determining that the medical records
              authorizations were not substantially compliant with HIPAA
              regulations and Tenn. Code Ann. § 29-26-121(a)(2)(E) when the
              only alleged deficiencies were the failure to include an expiration
              date and a description of relevant records.
                                            -3-
      2.     Whether a HIPAA-compliant medical authorization is necessary,
             pursuant to Tenn. Code Ann. § 29-26-121(a)(2)(E), when both
             defendants received notice and contributed to the sole medical
             record.

      3.     Whether the trial court erred by denying Mr. Williams’s Tenn. R.
             Civ. P. 59 motion.

                           III. STANDARD OF REVIEW

        Our Supreme Court has provided the following guidance regarding the standard of
review applicable to a motion to dismiss a health care liability action based upon a
plaintiff’s alleged noncompliance with Tenn. Code Ann. § 29-26-121:

              The proper way for a defendant to challenge a complaint’s
      compliance with Tennessee Code Annotated section 29-26-121 and
      Tennessee Code Annotated section 29-26-122 is to file a Tennessee Rule of
      Procedure 12.02 motion to dismiss. 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. If the
      defendant prevails and the complaint is dismissed, the plaintiff is entitled to
      an appeal of right under Tennessee Rule of Appellate Procedure 3 using the
      standards of review in Tennessee Rule of Appellate Procedure 13. If the
      plaintiff prevails, the defendant may pursue an interlocutory appeal under
      either Tennessee Rule of Appellate Procedure 9 or 10 using the same
      standards.

      ***

      The leading rule governing our construction of any statute is to ascertain
      and give effect to the legislature’s intent. Walker v. Sunrise Pontiac-GMC
      Truck, Inc., 249 S.W.3d 301, 309 (Tenn. 2008). To that end, we start with
      an examination of the statute’s language, Curtis v. G.E. Capital Modular
      Space, 155 S.W.3d 877, 881 (Tenn. 2005), presuming that the legislature
      intended that each word be given full effect. Lanier v. Rains, 229 S.W.3d
                                            -4-
      656, 661 (Tenn. 2007). When the import of a statute is unambiguous, we
      discern legislative intent “from the natural and ordinary meaning of the
      statutory language within the context of the entire statute without any
      forced or subtle construction that would extend or limit the statute’s
      meaning.” State v. Flemming, 19 S.W.3d 195, 197 (Tenn. 2000); see also
      In re Adoption of A.M.H., 215 S.W.3d 793, 808 (Tenn. 2007) (“Where the
      statutory language is not ambiguous . . . the plain and ordinary meaning of
      the statute must be given effect.”) (citing Calaway ex rel. Calaway v.
      Schucker, 193 S.W.3d 509, 516 (Tenn. 2005)). The construction of a
      statute is also a question of law which we review de novo without any
      presumption of correctness. Lind [v. Beaman Dodge, Inc.], 356 S.W.3d
      [889,] 895 [(Tenn. 2011)].

Myers v. AMISUB (SFH), Inc., 382 S.W.3d 300, 307-08 (Tenn. 2012).

        In Arden v. Kozawa, 466 S.W.3d 758, 763 (Tenn. 2015), our Supreme Court
clarified:

              The content and affidavit requirements of Tennessee Code
      Annotated sections 29-26-121(a)(2), (a)(3), and (a)(4) are not mandatory,
      but directory, and can be achieved through substantial compliance. See
      Thurmond v. Mid-Cumberland Infectious Disease Consultants, PLC, 433
      S.W.3d 512, 520 (Tenn. 2014) (allowing substantial compliance with the
      affidavit requirement under Tennessee Code Annotated sections 29-26-
      121(a)(3)(B) and (a)(4)); Stevens ex rel. Stevens v. Hickman Comm. Health
      Care Servs., Inc., 418 S.W.3d 547, 555 (Tenn. 2013) (allowing substantial
      compliance with the HIPAA form requirement under Tennessee Code
      Annotated section 29-26-121(a)(2)(E)). “[U]nless strict compliance with a
      notice content requirement ‘is essential to avoid prejudicing an opposing
      litigant,’ substantial compliance with a content requirement will suffice.”
      Thurmond, 433 S.W.3d at 520 (quoting Stevens, 418 S.W.3d at 555).

The Court has also explained that to determine 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.” Stevens ex rel. Stevens v. Hickman Cmty.
Health Care Servs., Inc., 418 S.W.3d 547, 556 (Tenn. 2013).




                                         -5-
                                           ANALYSIS

        IV. STATUTORY REQUIREMENTS CONCERNING HIPAA-COMPLIANT MEDICAL
                                AUTHORIZATION

       Mr. Williams contends that the trial court erred in dismissing his claims based on
his failure to substantially comply with Tenn. Code Ann. § 29-26-121(a)(2)(E). The
medical records authorizations provided by Mr. Williams did not include a “description
of information to be used or disclosed” or an expiration date. See 45 C.F.R. §
164.508(c)(1)(i), (v). Dr. Johnston and Clarksville OB/GYN (collectively, “Defendants”)
argue that the trial court properly dismissed the action because the medical authorizations
provided by Mr. Williams were insufficient to allow Defendants to access relevant
medical records to prepare a defense.

        Tennessee Code Annotated section 29-26-121 (Supp. 2016) 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 at least sixty (60) days before the filing of a complaint
               based upon health care liability in any court of this state.

        (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.

       The trial court determined that Mr. Williams had failed to substantially comply
with Tenn. Code Ann. § 29-26-121(a)(2)(E) because the medical records authorizations
provided did not include a “description of information to be used or disclosed” or an
expiration date. The court also determined that these deficiencies prejudiced Defendants
from obtaining the relevant medical records from the Hospital so that they could mount a
defense. On appeal, Mr. Williams asserts that the authorizations were substantially
compliant because the only alleged deficiencies were the lack of an expiration date and
description of the records to be disclosed. Mr. Williams argues that Defendants were
able to “fill in the blanks” on the authorization forms in order to obtain the records they
deemed necessary.4

        4
           Despite Mr. Williams’s assertion, the letter accompanying the medical release provided no
further instruction concerning the release.
                                               -6-
      As our Supreme Court has explained:

      Tenn. Code Ann. § 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”). Tenn. Code Ann. § 29-
      26-121(d)(1) creates a statutory entitlement to the records governed by §
      29-26-121(a)(2)(E). See Tenn. Code Ann. § 29-26-121(d)(1) (“All parties
      in an action covered by this section shall be entitled to obtain complete
      copies of the claimant’s medical records from any other provider receiving
      notice . . . .”) (emphasis added).

Stevens, 418 S.W.3d at 555. The Court referenced the following federal regulations
establishing the six elements of a HIPAA-compliant authorization:

      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 . . . .

      (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.

                                           -7-
45 C.F.R. § 164.508(c)(1) (quoted in Stevens, 418 S.W.3d at 555-56). We emphasize
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.” Stevens, 418 S.W.3d at 556. In Stevens, our Supreme Court
determined that the “errors and omissions [in the medical authorization] were numerous
and significant,” such that the plaintiff had not substantially complied with the
requirements of the statute. Id. Mr. Williams asserts that the omissions in this matter are
not as significant.

       A. Expiration date.

       We begin by considering the significance of the omission of the HIPAA form’s
expiration date. There are a few relevant cases. In Hamilton v. Abercrombie
Radiological Consultants, Inc., 487 S.W.3d 114, 120 (Tenn. Ct. App. 2014), the only
alleged error on the plaintiff’s HIPAA form was the missing date required under C.F.R. §
164.508(c)(1)(vi), which requires a “[s]ignature of the individual and date.” The plaintiff
explained that this date line was left blank “as a courtesy” to the defendants so that the
form would not “become stale.” Hamilton, 487 S.W.3d at 120. The trial court granted
the defendants’ motion to dismiss based upon this omission on the HIPAA form. Id. at
116. On appeal, this court found no evidence that the defendants “were prejudiced or
otherwise denied access to medical records as a result of the missing date.” Id. at 122.
Although we acknowledged that “it is not good practice to omit any of the C.F.R. criteria
from a HIPAA form,” we determined that “the relatively minor shortcoming in the
HIPAA form here [was] not fatal” to the plaintiff’s case. Id.

        The result in Hamilton differs from that in Buckman v. Mountain States Health
Alliance, No. E2017-01766-COA-R3-CV, 2018 WL 3608416, at *1 (Tenn. Ct. App. July
26, 2018), a case in which the HIPAA authorization form provided by the plaintiff
included an expiration date that had already passed. This court affirmed the decision of
the trial court dismissing the plaintiff’s complaint for failure to substantially comply with
the statute. Buckman, 2018 WL 3608416, at *8. The defendants were prejudiced
because they could not legally obtain medical records with an invalid (expired) HIPAA
release form. Id. at *6-7.

       The facts in the present case are similar to those in Hamilton. There has been no
showing that Defendants were prejudiced by Mr. Williams’s omission of an expiration
date. Counsel for Dr. Johnston acknowledged that this omission was “not an extremely
significant oversight.” Her further statement that, if this were the only issue, the case
probably would not be in court, indicates a lack of prejudice. We conclude that Mr.
Williams’s omission of an expiration date was insignificant and did not prevent the
HIPAA form from being substantially compliant with Tenn. Code Ann. § 29-26-
121(a)(2)(E).
                                           -8-
       B. Description of records.

       The pertinent portion of the medical records authorization form sent by Mr.
Williams is entitled, “Description of information to be used or disclosed.” Underneath
this heading, the form asks: “Is this a request for psychotherapy notes?” If the answer to
this question is “Yes,” the instructions state that “[y]ou must submit another authorization
for other items below.” If the answer is “No, then you may check as many items below
as you need.” Following these preliminary questions is a listing of types of medical
records with boxes to check and dates of the records for each type of medical record
requested. The first item in the list is “All PHI [Protected Health Information] in medical
record.” The remainder of the list describes more specific records. On the HIPAA
authorization forms sent by Mr. Williams to Defendants, no check marks appeared in this
section.

       Mr. Williams argues that the authorizations were sufficient because Defendants
could “check however many records or what type of records the Defendant wants to
obtain” and that “Defendant was entitled to check any box the Defendant wanted.” This
court has previously held, however, that it is not the burden of medical defendants to
“assist” a plaintiff in achieving compliance with Tenn. Code Ann. § 29-26-121(a)(2)(E)
or to “test” a deficient authorization to ascertain whether records can be obtained. See
J.A.C. by and through Carter v. Methodist Healthcare Memphis Hosps., 542 S.W.3d 502,
514 (Tenn. Ct. App. 2016). As the J.A.C. court explained:

       Several Tennessee decisions have rejected the proposition that a health care
       liability defendant has a duty to assist a plaintiff [to] achieve compliance or
       to test whether an obviously deficient HIPAA form would allow the release
       of records. See, e.g., Stevens, 418 S.W.3d at 559 (“Plaintiff—not
       Defendants—was responsible for complying with the requirements of
       Tenn. Code Ann. § 29-26-121(a)(2)(E).”); Dolman v. Donovan, No.
       W2015-00392-COA-R3-CV, 2015 WL 9315565, at *5 (Tenn. Ct. App.
       Dec. 23, 2015) (rejecting the plaintiffs’ argument that the medical providers
       could not have been prejudiced because they never attempted to obtain
       medical records with the deficient medical authorization provided), perm.
       app. denied (Tenn. May 6, 2016). Similarly, our courts have rejected the
       notion that a health care liability defendant needs to inform a plaintiff that
       the provided authorization form is deficient before filing a motion to
       dismiss. Stevens, 418 S.W.3d at 559; Vaughn v. Mountain States Health
       Alliance, No. E2012-01042-COA-R3-CV, 2013 WL 817032, at *4 (Tenn.
       Ct. App. Mar. 5, 2013) (rejecting the argument that the defendants should
       have contacted plaintiff’s counsel prior to an action being filed against
       them in order to inform plaintiff’s counsel that the requirements of
       Tennessee Code Annotated section 29-26-121 had not been met), overruled
       on other grounds by Davis v. Ibach, 465 S.W.3d 570 (Tenn. 2015).
                                             -9-
               The argument that a health care liability defendant should complete
       or “customize” a medical authorization that contains blanks has been
       specifically rejected by two recent decisions of this Court. In Roberts v.
       Prill, No. E2013-02202-COA-R3-CV, 2014 WL 2921930 (Tenn. Ct. App.
       June 26, 2014), the plaintiff admitted that she intentionally left portions of
       the HIPAA form blank and anticipated that the defendant medical providers
       would fill it in. Id. at *6. In summarizing the crux of the plaintiff’s
       argument as to why her complaint should not be dismissed despite the
       presence of an incomplete form, we noted as follows: “She essentially
       argues that the onus should be placed on Defendants to test the sufficiency
       of the form or even to complete an inadequate form.” Id. We rejected the
       plaintiff’s argument and noted as we had in Stevens that it is the health care
       liability plaintiff, not defendant, that is responsible for complying with the
       requirements of Tennessee Code Annotated section 29-26-121(a)(2)(E). Id.
       (citation omitted).
Id. at 514-15.
        Similarly, in Roberts v. Wellmont Health Sys., No. E2017-00845-COA-R9-CV,
2018 WL 3302178, at *1 (Tenn. Ct. App. July 5, 2018), the plaintiff provided a medical
authorization that contained blanks to be filled out by the defendants in accordance with a
purported local custom in the second judicial district. The trial court relied upon and took
judicial notice of this custom in denying the defendants’ motion to dismiss for lack of
substantial compliance with the statute. Roberts, 2018 WL 3302178, at *1. On
interlocutory appeal, this court reversed the trial court’s decision and dismissed the
plaintiff’s complaint with prejudice. Id. at *6. In so doing, this court stated:

              We next consider whether a third party is permitted to alter or
       modify a medical authorization after it has been executed by a patient or
       patient’s authorized representative. The trial court, in its order denying
       defendants’ motions to dismiss, rejected defendants’ position that it would
       be improper for a medical provider or medical provider’s counsel to alter a
       medical authorization after it is received from a patient, and litigation is not
       yet pending. The trial court stated that:

                 the Court finds there is no prejudice demonstrated by failing
                 to fill out the forms with the names, and it is ridiculous to use
                 technicalities of this nature to terminate a potentially
                 meritorious case, which is contrary to the constitution of the
                 State of Tennessee.

       “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

                                              - 10 -
        completely, with respect to an element described by paragraph (c) of this
        section.” See 45 C.F.R. § 164.508(b)(2). Defendants argue that the
        implication of defining an incomplete authorization as defective is that an
        individual is not permitted to fill-in blanks on a medical authorization after
        it has been presented partially completed by a patient or a patient’s
        representative. We agree with the defendants.

Id. at *5.

      We concur with the precedent from the eastern and western sections of this court
and conclude that Mr. Williams’s failure to check the requested medical records makes
the HIPAA authorization fall short of the standard of substantial compliance with Tenn.
Code Ann. § 29-26-121(a)(2)(E).5

              V. NECESSITY OF HIPAA-COMPLIANT MEDICAL AUTHORIZATION

       Mr. Williams asserts that a HIPAA-compliant medical authorization was
unnecessary in this matter because there was only one medical record to which both Dr.
Johnston and the Hospital contributed. Mr. Williams posits that the case at bar is thus
factually similar to Hughes v. Henry County Medical Center, No. W2014-01973-COA-
R3-CV, 2015 WL 3562733, at *5 (Tenn. Ct. App. June 9, 2015).

       In Hughes, the plaintiffs provided a medical authorization that did not permit one
health care provider, Henry County Medical Center (“HCMC”), to obtain the records of
another health care provider, who was an individual physician. Hughes, 2015 WL
3562733, at *1. The hospital filed a motion to dismiss, arguing that the medical
authorization was insufficient. Id. The hospital admitted, however, that it had not been
prejudiced thereby because the other defendant, Dr. Gold, only saw the patient at HCMC
and had no medical records of his own. Id. at *2. The Hughes court stated:

        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

        5
          The author of this majority opinion has concerns about this ruling, but acknowledges the
precedent. The provision by a plaintiff to a defendant of a checklist form for medical records has much to
commend it. The practice allows a defendant to choose the records it wants rather than having to sift
through potentially years of irrelevant health records. If the defendant so chooses, it may check “All PHI
in the medical record.” That is hardly an imposition. Furthermore, encouraging some cooperation
between or among parties is not a bad thing. Finally, the deficiencies in this case are easily curable. Yet, if
mistakes are made, we allow a defendant to file a “gotcha” motion to dismiss without even trying to
acquire the records, rather than having the parties work it out and try to resolve the case on its merits. The
countless cases that have arisen under these statutes, with the many different factual permutations, reveal
the confusing and mostly unforgiving nature of these laws.
                                                    - 11 -
       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. 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.

Id. at *5 (internal citations omitted).

       In the instant action, the facts are distinguishable from those in Hughes. Dr.
Johnston asserted in her motion that she was unable to obtain Ms. Williams’s medical
records that were in the possession of the Hospital. Both the Hospital and Dr. Johnston
have denied that Dr. Johnston is an employee of the hospital. Taking as true Mr.
Williams’s allegation that the Hospital maintains sole possession of Ms. Williams’s
medical record, we have a factual situation much different than that in Hughes. It
appears that, without a valid HIPAA authorization, neither defendant can access the
necessary medical records. We, therefore, find Mr. Williams’s argument that Hughes is
controlling authority in this situation to be unavailing.

                                    VI. RULE 59 MOTION

      Finally, Mr. Williams asserts that the trial court erred by denying his motion made
pursuant to Tenn. R. Civ. P. 59 upon the court’s finding that Mr. Williams was
attempting to “relitigate matters that have already been adjudicated.”

       This court’s scope of review with regard to the denial of a Rule 59 motion is to
determine whether the trial court abused its discretion in denying the motion. See Smith
v. Haley, No. E2000-001203-COA-R3-CV, 2001 WL 208515, at *5 (Tenn. Ct. App. Mar.
2, 2001). “A court abuses its discretion when it causes an injustice to the party
challenging the decision by (1) applying an incorrect legal standard, (2) reaching an
illogical or unreasonable decision, or (3) basing its decision on a clearly erroneous
assessment of the evidence.” Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn.
2010).

       As the trial court’s May 17, 2018 order explained in significant detail, the trial
court had already considered and rejected each of the arguments raised by Mr. Williams’s
Rule 59 motion. With regard to the function of a Rule 59 motion, this court has
previously explained:

              The purpose of Tenn. R. Civ. P. 59 motions is to prevent
       unnecessary appeals by providing trial courts with an opportunity to correct
       errors before a judgment becomes final. Tenn. R. Civ. P. 59.04 motions
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       may be granted (1) when the controlling law changes before a judgment
       becomes final, (2) when previously unavailable evidence becomes
       available, or (3) when, for sui generis reasons, a judgment should be
       amended to correct a clear error of law or to prevent injustice. They should
       not, however, be granted if they are simply seeking to relitigate matters that
       have already been adjudicated.

Bradley v. McLeod, 984 S.W.2d 929, 933 (Tenn. Ct. App. 1998), overruled in part on
other grounds by Harris v. Chern, 33 S.W.3d 741 (Tenn. 2000) (internal citations
omitted).

       As discussed previously in this opinion, we conclude that the trial court erred
because Mr. Williams's omission of an expiration date did not prevent the HIPPA form
from being substantially compliant with Tenn. Code Ann. Section 29-26-121(a)(2)(E).
The trial court did not err in determining that the lack of description of the records failed
to comply with the law.

                                    VII. CONCLUSION

       For the foregoing reasons, we affirm the trial court’s dismissal of Mr. Williams’s
claims against Dr. Johnston and Clarksville OB/GYN. We remand this matter to the trial
court for collection of costs assessed below. Costs on appeal are taxed to the appellant,
Steven Williams.

                                                    _________________________________
                                                    ANDY D. BENNETT, JUDGE




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