                                                                                           11/28/2018
                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                                August 21, 2018 Session


         JENNIFER PARKS v. REBECCA A. WALKER, M.D., ET AL.

                   Appeal from the Circuit Court for Knox County
                        No. 1-278-16     Kristi Davis, Judge



                             No. E2017-01603-COA-R3-CV




D. MICHAEL SWINEY, C.J., dissenting.
       I respectfully dissent from the majority’s decision in this case. I disagree with the
majority’s holding “that the medical authorizations in this case do not substantially
comply with the provisions of Tenn. Code Ann. § 29-26-121.” I would reverse the Trial
Court as I believe the medical authorizations do substantially comply.
       The majority correctly notes “the authorization sent to each defendant authorizes
them to ‘release, use or disclose’ the health records of plaintiff to the other named
providers. The authorization then lists the providers to whom the entity is authorized to
release the records.” Every medical provider defendant is named in this list. The
majority, however, then affirms the Trial Court’s holding “that plaintiff’s authorization is
not sufficient to enable defendants to obtain plaintiff’s medical records.”
        If that were the entirety of the situation, I would agree with the majority.
However, that is not the entirety of the situation here. Attached to the complaint as
exhibit B is an affidavit from plaintiff’s attorney. Attached to this affidavit are copies of
the February 19, 2016 notice letter sent to each of the medical providers. Accompanying
this letter was a “LIST OF NAME AND ADDRESS OF ALL HEALTH CARE
PROVIDERS TO WHOM THIS NOTICE IS SENT PURSUANT TO TENN. CODE
ANN. § 29-26-121(A) OF A POTENTIAL CLAIM FOR MEDICAL MALPRACTICE.”
This list contained the names of each medical provider defendant to this lawsuit. The last
sentence on that page states “Each provider above is being sent a HIPAA-compliant
medical authorization permitting each to obtain complete medical records from each
other.”
       Then also attached to each letter was a copy of the medical authorization release
form sent to that medical provider authorizing that medical provider defendant to
“release, use or disclose” to all of the listed medical providers the plaintiff’s medical
records. For purposes of clarity, and as an example of what was sent to each medical
provider defendant, attached to this dissent as attachment 1 is a copy of the letter and the
medical authorization forms sent to one of the medical provider defendants, Rebecca A.
Walker, M.D. As alleged in the complaint, each medical provider defendant was
furnished the same authorization with the only difference being the name of that medical
provider defendant inserted where it stated: “I hereby authorize ________ to release, use
or disclose from the health records of: . . . .” Each authorization contained a list of the
medical provider defendants to whom the medical provider defendant was authorized “to
release, use or disclose . . .” plaintiff’s health records.
       According to the complaint, each medical provider defendant was furnished a
notice and a medical authorization form allowing them to disclose the plaintiff’s medical
records to all the other medical provider defendants as listed on that form. Further, each
medical provider defendant was told in this notice that each medical provider defendant
had been sent such a HIPAA-compliant medical authorization form “permitting each to
obtain complete medical records from each other.” In short, each medical provider
defendant was told that every other medical provider defendant had been furnished a
“HIPAA-compliant medical authorization” that authorized each and every one of the
medical provider defendants to release plaintiff’s records to each and every other medical
provider defendant.
        If all that plaintiff had furnished had been the medical authorization form without
the list of names and addresses of all health care providers, which specifically stated that
each medical provider defendant was being sent such a HIPAA-compliant medical
authorization permitting each one to obtain complete medical records from the others, the
releases may well have been deficient. According to the complaint, however, the medical
provider defendants were provided with this information at the time they received the
medical authorization forms.
       Respectfully, the Trial Court and the majority focus only on the two page
authorization forms and ignore the February 19, 2016 notice letters including the “LIST
OF NAME AND ADDRESS OF ALL HEALTH CARE PROVIDERS TO WHOM THIS
NOTICE IS SENT PURSUANT TO TENN. CODE ANN. § 29-26-122(A) OF A
POTENTIAL CLAIM FOR MEDICAL MALPRACTICE,” all of which were attached to
the complaint as part of exhibit B.
       As the Trial Court correctly notes, this dismissal was a result of a motion to
dismiss. I believe it was error for the Trial Court and the majority to consider only part
of exhibit B attached to the complaint while ignoring the remainder of exhibit B. From
the complaint, each and every medical provider defendant was clearly told that “Each
provider above is being sent a HIPAA-compliant authorization permitting each to obtain

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complete medical records from each other.” Each provider was told this at the same time
each received the authorization “to release, use or disclose . . .” the plaintiff’s heath
records to every other medical provider defendant.
         I believe this is substantial compliance with the statute because, as stated in the
notice letter to the defendants, each and every one of them could get all of plaintiff’s
medical records from the other medical provider defendants, and they knew it. To hold
otherwise requires that we assume that the health care providers and their attorneys were
all illiterate and unable to read the medical authorization form in conjunction with the
notice letter sent to them.
        As to plaintiff’s failure to fill in the blank after: “For the purpose of:” in the
authorization, I believe it is a technical violation that does not, by itself, prevent there
being substantial compliance with the statute. The majority is correct that plaintiff did
not fill in this blank. However, the phrase “at the request of the individual” would have
been sufficient to satisfy this HIPAA requirement. At the risk of stating the obvious, “at
the request of the individual” is obvious from the fact that “the individual” signed the
request and stated no other purpose. In any event, I believe the failure to fill in this blank
did not prevent substantial compliance with the statute as the effect and significance of
that error or omission is minimal at most.
        I believe the record shows that there was substantial compliance by plaintiff with
the statute. Each and every medical provider defendant was authorized by the medical
authorizations to both release the medical records to and obtain the medical records from
each and every other medical provider defendant. To hold otherwise in deciding this
motion to dismiss is to ignore part of the complaint, including parts of exhibit B to the
complaint, showing what actually was furnished to each of the medical provider
defendants. This results in requiring perfection rather than substantial compliance. As
the majority correctly notes in quoting our Supreme Court, the statute in question “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.” Stevens, ex
rel. Stevens v. Hickman Community Health Care Servs., Inc. 418 S.W.3d 547, 555 (Tenn.
2013). Here, the medical provider defendants were so equipped but chose not to
“evaluate the substantive merits of” the plaintiff’s claim early or otherwise. Id.
        At this motion to dismiss stage, applying the standards relevant to a motion to
dismiss, it cannot be disputed that each and every medical provider defendant, by means
of all the authorizations furnished by plaintiff to all the medical provider defendants, was
equipped with the means to obtain the medical records from each and every medical
provider defendant so each could evaluate the merits of plaintiff’s claim. Again, unless
the health care providers and their attorneys were illiterate and were unable to read and
understand not only the medical authorization form sent to that health care provider, but
the notice letter and all attachments to that notice letter as well, it was clear that each
medical provider had been authorized both to furnish to and to obtain and receive from

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every other medical provider the plaintiff’s medical records, and they knew it. This is, I
believe, at least substantial compliance.
       Since the enactment of the sections of the Health Care Liability Act governing
pre-suit notice were adopted by the General Assembly in 2008, this Court has seen case
after case brought by Tennessee plaintiffs dismissed without any determination whether
the case has any merit. In all of these cases, this Court has yet to be pointed even once to
anything supporting the proposition that the purpose, or even a secondary purpose, of
HIPAA was to enable medical providers to weaponize the HIPAA provisions concerning
medical release authorization forms to the detriment of their patients. Despite that, this is
exactly how HIPAA is being used in these lawsuits. Under the Trial Court’s opinion and
the majorities’ opinion, this Tennessee plaintiff is just the latest victim in the “game of
‘gotcha’ . . . played by the lawyers.” Buckman v. Mountain States Health Alliance, No.
E2017-01766-COA-R3-CV, 2018 WL 3608416, at *8 (Tenn. Ct. App. July 26, 2018), no
appl. perm. appeal filed (Swiney, C.J., concurring separately).
       I, respectfully, dissent from majority’s opinion. I would reverse the decision of
the Trial Court.


                                          ____________________________________
                                          D. MICHAEL SWINEY, CHIEF JUDGE




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                                                                    lignosia F. 5+10kt
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             LAW OFFICES OF ERIC B.Fo T'4s1j14 "16
                                422S.Gay Street, Suite 802
                                   lincernIle,TN 87902

 Eric B.Foust,Esq.                                           Telephone:(865)250-5182
 lamb/mice L Moynihan,Paralegal                              Facftile: (885)881-0682


                                     February 19,2016
 Rebecca A. Walker,M.D.
 9314 Parksvest Boulevard
 Knoxville,TN 37923

 Re     Medical Malpractice Claim Notificadon
        Oar Client Jennifer Lee Parks
        D.0.11.:     11-29-1973

 To• Whom It May Concern:
  This letter serves se noqficatiunpursaantto TC-A §.2cr-26-121 that a medical malpractice
• claim is being Made agaiastyonuiagrotto your nagilgeutcare and treatment ofJennifer
  Lee Parks on or about February 19,201$,ivitiehresultedin Ms.Pads suffering severe
  and permanentinjuries. Ms.Puke information is:

        Jennifer Lee Parks
        5028 TresoottDrive
        Knoxville,TN37921 . .
        Date ofBinh: 11-29-1973

PleaseInfo=your insurance canicsiezakor your Ogany.thatyouliavomeeIved this
letter as 9601.qiF4**i 130. 0431.000$94.20*       . _4t:Oillsert1041/41011
ilecePtinE such *ter is1110tP900***Iiit(041401,146:40*.0_1k0!!tbeltalL Ifsuch
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this letter cocottes,withtlie lettek-MidiiirWofTek0941011;:         or your camel
believes it is deficientin anyway,theit.platitmpromPitylog*knOw and ariy defect will
be prompdy cured.If we doonot:prOMOY.beertreitjtp***We will asgime that you
and your legal Conn*e'vethe letter ecatidirs;wilialhehisvInarespeeta

Thank You for; your prOMMeftetiduntoids mettoet
Sincerely,


Eric B.Foust

Enthrones

                                                          Ariegmarr
                                              -5-
LIST OF NAME AND ADDRESS OF ALL HEALTH CAREPROVIDERS TO
WHOM THIS NOTICE IS SENT PURSUANT TO TENN.CODE ANN.§29-26-
12,I(A)OF A POTENTIAL CLAIM FOR MEDICAL MALPRACTICE:

Rebecca A.Welker,M.D.
9314ParkwestBoulevard
Knoxville,TN 37923

RebeocaA Wallow,MD.
9314RI:rimiest&advent!,Suite 100
KnoxvMe,7N 37923

Pak-west Wonzen's Specialists,PLLC
9314Pinkwest Boulevard,Suite 100
Knoxville,11137923

Parkwest Women's*deli*Pile
do Regioned Agent
Rebecca A.Walker,M.D.
9472annoy Mend3w Boulevard
Knaznille,TN 37931

Parkwest Medical Center
9352Park WestBoulevard                              . • .
Knoxville,TN 37923

Patkwest Medical Center
do Registered Agent
Yolin T Deppi
1420 CenteipeintBoulevard,Building C
Knoxville,TN37932

CovenantHealth
1420 CnaterpolaBonleinid
Uzi/wine,IN 37932

CovenantHealth
do Registered Agent
him T demi
1420Centerpoint Boulevard,BuildingC
Knoxville,TN 37932

C.ovenantHealth
100PertSanders West Boulevard
KnoxvMION 37022          •           •

Fzeit piovider above is being s.entaHIPAA-oompliant method authorization permitting
each.toobtaincomplete meted reelirdsfrom 0101106:r.         .




                                          -6-
Hasse note thata medical provider who sends records to =caw medicalprovider is
not authorised to dhows this matter with the requesting provider or hisfher
representatives pursuant to T.C.A.§29-26-121,assaid Matta requires only that
records be produced. Please also fake note that this 01}TA-complhint authorhatioa
does not inclade medical providers that have notreceived Notices in Ibis matter,
pursuantto T.C.A.§29-26-121.


Nem= MR#                        Bmtirotmberfl             Date:

For the impose of

I hereby authorize Bahama A.%Wm M.D.to release,use or disclose from the health records et

PaliontNamc                                      Date ofBirth:
 !conifer' LO6Parks                               11-294973
Address:                                         Telephone Number:
 5028 Trescott Drive                            ' 865-450-2994
  Knoxville,TN'37921                             SS Nu:fhb= '
                                                  XXX-XX-XXXX

Covering the periods)&heal&cern from #14013.to pinned.

Thelzollowing Worn:idiom

_g_ Campine Medical Ratord(s)    • Discharge iitnamnry_                       _A_ Ramey &Physical Exam
   . Consoltaticm Repeats         °ale:tined Progressliates-                      OPentiva RePoN
_g_ X-Ray Reports             _8_ Patekte                                     A Laboratory Tests
                                  loved Records                               — Other (811040
    PhOtttroPts,videdePes;
     digital or other images         •

Tothe6311rsvinx

Rebecca A.Walker,M.D.                             Parkwest Medical Center
9314 Patiaaest Boulevard                             Reestnet Allent
Knoxville,TN 37923                                John TPTO
                                                  FPO,ilentatiolotBoulmard,        C
                                                  Kramilla,TN 37932

Redeem A. Walla% D.D.                             Coved=Had&
9314 Per     Beedevard,Saw 100                    1420Ceinapnim Boulevard
Knoxville,TN 37923                                Acuivtle,/N37912

Padrivest Woman's Specialbas,PLLG               : Comsat Ninth
9314PathwentBradevstd,&rite.100                   100Fort$intders WattBeabsynd
Knoxville,IN 37923                                Knoxville;TN 37922

 ParianatWonam's Specialiste,P1.1.4                consentHealth
 do Registered Agerm                               cto11:410190-APEtt
 Rebecca A.Welker,M.A.                             !oho T Gappl
 9472 ealasy Meadow Boalsysrd                      1420tanapalar Boulevard,Building C.
 Knoxville,TN 37931                                Knoxville.TN 37932

 ParkwestMedicalraster
 9332Park Weer Boulevard
 &neva*TN 37923




                                                 -7-
I anderstmdibis Mane is valid dog*the expiration date(s)stated below or,ifI&blank,until
"twelve moanfrom the Date ofSignature.I           the rightto revokeibis aothoricadon *writing •
 etanytime.lelrevokethis authodattica,Iinust present written revocationto the Lew Offices of
 Bric B.Feastordame. Such Revocationwillnotapply to wonthat hai already been
 rekased in response to this authorizetion,orto myinstance employ when the law provides my
 homer with the right to contesta claim under iny policy. Once the above Information Is disclosed,
 It may be modisolosed by the recipient and thelammed= may not be protected byfederal
 prime),lawsor regoladons. I =demand thelaw Offices ofErie B.Foust may notststrlet my
 access to healcare trartmeetdoe to mysalateridog or sotswag the use or disclosure or
 the Information Identified above solve specified Isere.




§ignsturs of                                                          Date ofSignature


     5e1,,,Su L4,14
Pries Nemo ofcyaist



 Axttharby ofClient     .         ;    -    •

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