                                                                                                   07/05/2018
                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                  January 16, 2018 Session

           DESIREE DAWN ROBERTS ET AL. V. WELLMONT HEALTH
                           SYSTEM ET AL.1

              Interlocutory Appeal from the Law Court for Sullivan County
                         No. C41621(C)      E. G. Moody, Judge
                             ___________________________________

                               No. E2017-00845-COA-R9-CV
                             ___________________________________

This interlocutory appeal involves a health care liability action. Plaintiff gave written pre-
suit notice of her claim to all potential defendants. See Tenn. Code Ann. § 29-26-121(c)
(Supp. 2013). Later, she filed a complaint against the same defendants. In doing so, she
relied upon the 120-day extension of the one-year statute of limitation as provided for in
Tenn. Code Ann. § 29-26-121(c). Each defendant filed a motion to dismiss. Prior to a
hearing on those motions, plaintiff voluntarily dismissed her complaint. Plaintiff
subsequently served each defendant with new pre-suit notice and later re-filed her
complaint in reliance on the one-year savings statute, Tenn. Code Ann. § 28-1-105, and
the 120-day extension pursuant to § 29-26-121(c). Defendants moved to dismiss the
second complaint. The trial court denied defendants’ motions. In doing so, the court took
“judicial notice” of the practice of some attorneys in the Second Judicial District of
providing their adversaries with “blank” authorizations. The court ultimately held that the
medical authorizations in the first pre-suit notice were not only HIPAA compliant, but
“overly” so. The trial court concluded that, because the first pre-suit notice was,
according to the court, valid, the first-filed complaint was timely filed. Upon the request
of the defendants, the court granted them permission to pursue an interlocutory appeal
pursuant to the provisions of Tenn. R. App. P. 9. We likewise granted defendants
permission to file a Rule 9 discretionary appeal. We reverse the judgment of the trial
court and dismiss the plaintiff’s suit with full prejudice.

           Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Law Court
                      Reversed; Case Remanded with Instructions




       1
        Because of some common issues, this case was consolidated with the case of Smith v. Wellmont
Health System et al., E2017-00850-COA-R9-CV for the sole purpose of oral argument.

                                                -1-
CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and THOMAS R. FRIERSON, II, J., joined.

Jimmie C. Miller and Meredith B. Humbert, Kingsport, Tennessee, for the appellants,
Northeast Tennessee Emergency Physicians, P.C. and Dr. Benjamin Altman, M.D.

Russell W. Adkins and Andrew T. Wampler, Kingsport, Tennessee, for the appellant,
Wellmont Health System and Wellmont Health System, d/b/a Wellmont Holston Valley
Medical Center.

R. Wayne Culbertson, Kingsport, Tennessee, for the appellee, Desiree Dawn Roberts,
Administratrix of the Estate of Jeffrey Lynn Roberts.


                                                OPINION

                                                      I.

       The health care liability action at issue was based upon an incident that occurred
on or about June 7, 2013. Pre-suit notice was provided to the defendants on June 2, 2014.
Under Tenn. Code Ann. § 29-26-121, a plaintiff is allowed to file his suit within 120 days
of the expiration of the one-year statute of limitation provided the plaintiff first files a
notice with a HIPAA compliant authorization in a timely fashion. In reliance on this
statutory extension, the original action was filed on September 30, 2014. After the
defendants filed motions to dismiss, plaintiff took a voluntary nonsuit on June 19, 2015.

        On May 9, 2016, plaintiff served the defendants with a second pre-suit notice.
Plaintiff filed its second complaint, on August 26, 2016. Following the filing of the
second complaint, each defendant again filed a motion to dismiss. Defendants argue that
the medical authorizations attached to the first pre-suit notice did not comply with Tenn.
Code Ann. § 29-26-121, because they were not HIPAA compliant. Defendants argue that
the medical authorizations are deficient in that they fail to include material required by 45
C.F.R. § 164.508(c)(1): “[t]he name or other specific identification of the person(s), or
class of persons, authorized to make the requested use or disclosure…[t]he 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…[a]n expiration date or an expiration event
that relates to the individual or the purpose of the use or disclosure.” 45 C.F.R. §
164.508(c)(1)(ii) – (iii) and (v).2 Defendants contend that, due to these deficiencies,
plaintiff was not entitled to rely upon the 120-day extension provided for in Tenn. Code
Ann. § 29-26-121(c). Consequently, the defendants argue that the plaintiff’s suit is time-


       2
           As taken verbatim from 45 C.F.R. § 164.508(c)(1)(ii) – (iii) and (v).

                                                     -2-
barred and plaintiff cannot rely on the savings statute to revive a complaint that was time-
barred by the one year statute of limitations.

       The trial court, in its order denying defendants’ motions to dismiss, acknowledged
that the first pre-suit notice “did not identify the healthcare providers authorized to
release the plaintiff’s medical records and did not identify the individuals authorized to
receive the plaintiff’s medical records as required by 45 C.F.R. 164.508(c).”
Nonetheless, the court held that:

                where an authorization has a blank space identifying the party
                requesting the records and a blank space identifying the party
                that is to receive the records, that could be over compliance
                with the requirement and the reason it could be over
                compliance is because it allows not only records on this
                particular incident but it allows a medical records history
                which could be relevant.

(Underlining in original). Furthermore, the court took judicial notice3 that:

                the practice and custom in the 2nd Judicial District has been
                and continues to be to provide blank authorizations so that the
                person requesting information can get information from
                anyone they want to, not just the provider of the incident but
                also the provider of prior medical care or history.

The court found that there is no prejudice demonstrated by virtue of plaintiff’s failure to
fill in the blanks. The court further rejected the “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.” This
interlocutory appeal followed.

                                                   II.

       Because this matter comes to us as an interlocutory appeal, our review is limited to
the issues certified in the order of the trial court and “those matters clearly embraced
within the questions certified.” Tenn. Dep’t of Mental Health & Mental Retardation v.
Hughes, 531 S.W.2d 299, 300 (Tenn. 1975). The trial court certified the following issues
for review, as quoted directly from the court’s order:
        3
          While the defendants challenge the plaintiff’s position that the alleged “custom” in the Second
Judicial District amounts to “extraordinary cause,” See Tenn. Code Ann. § 29-26-121(b), the issue of
whether the trial court could legally take judicial notice of a local custom was not certified in the trial
court’s order granting the defendants permission to take an interlocutory appeal. For this reason, we will
not address whether Rule of Evidence 201 authorized the court to take judicial notice in this case.

                                                    -3-
                Whether a trial court can take judicial notice of a practice in
                the Second Judicial District of utilizing “blank” medical
                authorizations that are not HIPAA compliant, and equate
                same to extraordinary cause to excuse a plaintiff’s
                noncompliance with Tennessee Code Annotated § 29-26-121.

                Whether it is permissible for a third party to alter or modify a
                medical authorization after it has been executed by a patient
                or patient’s authorized representative.

                Whether a defendant’s claim of prejudice is waived when a
                defendant does not attempt to use a medical authorization that
                the defendant believes to be defective.

Appellants raise an additional issue4 not certified in the trial court order. We limit our
consideration to those issues presented in the trial court order granting the request for
interlocutory appeal and ignore an uncertified issue.

                                                  III.

       The defendants have properly employed a Tenn. R. Civ. P. 12.02 motion in
challenging the plaintiff’s compliance with Tenn. Code Ann. § 29-26-121. Myers v.
AMISUB (SFH), Inc. 382 S.W.3d 300, 307 (Tenn. 2012). As Myers noted,

                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
        4
          The issue that is not before us is as follows: “[w]hether Tennessee Code Annotated § 29–26–
121(c) precludes the Appellee from benefitting twice from the 120 day extension to the limitations period
both prior to filing his original Complaint, and again, upon the second filing of the action.” The quoted
material is from the defendants’ joint brief.

                                                   -4-
             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…

                                     *       *      *

             “[W]hether [Plaintiffs] ha[ve] 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
             (citation omitted).

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

      The issues before us pertain to matters of law. Hence, we review them with no
presumption of correctness accorded to the trial court’s judgment. Thurmond, 433
S.W.3d at 516-17 (citing Myers, 382 S.W.3d at 307; Leach v. Taylor, 124 S.W.3d 87, 90
(Tenn. 2004)). This case involves statutory interpretations, which are a matter of law. We
review such issues with no presumption of correctness:

             [T]his Court’s primary duty is to ascertain and effectuate
             legislative intent without broadening a statute beyond its
             intended scope. In fulfilling this duty, we construe statutes in
             a reasonable manner which avoids statutory conflict and
             provides for harmonious operation of the laws. Our analysis
             always begins with the words the General Assembly has used
             in the statute. If the statutory language is clear and
             unambiguous, we apply its plain meaning, understood in its
             normal and accepted usage, without a forced interpretation.
             Where statutory language is ambiguous, we consider the
             overall statutory scheme, the legislative history, and other
             sources.

Thurmond, 433 S.W.3d at 516-17 (internal citations and quotation marks omitted).

                                            IV.

      A health care liability plaintiff's pre-suit notice shall include “[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

                                            -5-
Ann. § 29–26–121(a)(2)(E). The specific purpose of subsection (a)(2)(E) is not to provide
defendants with notice of a potential claim; rather, as the Supreme Court noted in Stevens
ex rel. Stevens v. Hickman Community Health Care Services, Inc., 418 S.W.3d 547
(Tenn. 2013), the subsection “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.” Id. at 555. “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.” Id. (citing 45 C.F.R. § 164.508(a)(1)).

        However, despite the importance of the HIPAA authorization, the Supreme Court
has held that “[a] plaintiff's less-than-perfect compliance with Tenn. Code Ann. § 29–26–
121(a)(2)(E)...should not derail a healthcare liability claim.” Stevens, 418 S.W.3d at 555.
The Supreme Court concluded in Stevens, that “a plaintiff must substantially comply,
rather than strictly comply, with the requirements of Tenn. Code Ann. § 29–26–
121(a)(2)(E).” Id. In determining whether a plaintiff has substantially complied with the
statute, “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.” Id. at 556. The trial court may exercise “discretion to excuse
compliance...only for extraordinary cause shown.” Tenn. Code Ann. § 29–26–121(b). In
Myers, our Supreme Court stated:

              The statute does not define “extraordinary cause,” and the
              statute's legislative history does not indicate that the
              legislature intended to assign a meaning to that phrase other
              than its plain and ordinary meaning. “Extraordinary” is
              commonly defined as “going far beyond the ordinary degree,
              measure, limit, etc.; very unusual; exceptional; remarkable.”
              One legal scholar, commenting on Tennessee Code
              Annotated sections 29–26–121 and 122, has noted that
              possible examples of “extraordinary cause” might include
              “illness of the plaintiff's lawyer, a death in that lawyer's
              immediate family, [or] illness or death of the plaintiff's expert
              in the days before the filing became necessary.”

Myers, 382 S.W.3d at 310-11. (internal citations omitted).

        As noted above, the medical authorizations accompanying plaintiff’s first pre-suit
notice failed to contain three of the core elements for HIPAA-compliant authorizations
found in 45 C.F.R. § 164.508(c). Notably, the forms did not list any person(s), or class of
person(s) that were authorized to disclose protected health information; the forms did not
list any person(s) or class or persons, to whom a disclosure of information could be made.

                                             -6-
The forms contained blanks where this information should be. Plaintiff also failed to
include an expiration date or event. This Court has previously held that forms that are
markedly inadequate do not actually authorize or facilitate any disclosure. See, e.g.,
J.A.C. by & through Carter v. Methodist Healthcare Memphis Hosps., 542 S.W.3d 502,
513 (Tenn. Ct. App. 2016), appeal denied (Mar. 9, 2017); Roberts v. Prill, No. E2013-
02202-COA-R3CV, 2014 WL 2921930, at *5 (Tenn. Ct. App. June 26, 2014). We hold
that the medical authorizations in this case do not substantially comply with the
provisions of Tenn. Code Ann. § 29–26–121. Accordingly, the dismissal of the plaintiff’s
complaint is with full prejudice.

        The trial court can excuse what would otherwise be noncompliance with a finding
of extraordinary cause. However, the trial court in this case made no such clear finding.
Instead, the court conclusively held that the medical authorizations overly5 complied with
the statutory requirements, and were therefore valid. The trial court did so, at least in part,
by taking judicial notice of a local practice in the second judicial district of using “blank”
authorizations. The trial judge, sua sponte, took judicial notice based upon his thirty-five
years of personal injury experience, and ten years of judicial experience.

        Plaintiff argues that any challenge to the judicial notice was waived by defendants’
failure to expressly request an opportunity to be heard. This argument misses the point.
The problem lies not in the taking of judicial notice, but in the apparent contention that
the judicially-noticed custom rises to the level of extraordinary cause to excuse
compliance.

       Contrary to the purported local practice, our Legislature requires a HIPAA-
compliant medical authorization to accompany pre-suit notice. See Tenn. Code Ann. §
29–26–121(a)(2)(E). HIPAA deems authorizations defective if not filled out completely.
See 45 C.F.R. § 164.508(b)(2). Local counsel’s practice of leaving medical authorization
forms incomplete does not override the pertinent statutory scheme. Plaintiff’s counsel
acknowledged, in oral argument, that the judicially-noticed custom of filling in blanks on
medical authorizations is the only thing rendering the authorizations HIPAA compliant.
To allow a local practice alone to excuse otherwise noncompliance would damage
uniformity in application of pre-suit notice requirements between judicial districts across
the State.

       Accordingly, we find that judicial notice of a local custom, alone, does not rise to
the level of extraordinary cause. Therefore, the trial court abused its discretion by taking
judicial notice of a practice in the second judicial district of utilizing “blank” medical
authorizations that are not HIPAA compliant, and equating the same to extraordinary

       5
          While the trial court’s use of the word “overly” is not real clear, the court’s reference to
“overly” may have been prompted by the court’s pointing out that the authorizations with blanks could be
used to obtain medical records from a medical provider who is not a defendant in this case.

                                                  -7-
cause to excuse a plaintiff’s noncompliance with Tennessee Code Annotated § 29-26-
121.

                                             V.

        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 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.

       This Court has previously held that a defendant is not responsible for filling in
blanks on medical authorizations provided as part of pre-suit notice. In J.A.C., the court
addressed this issue:

              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, the plaintiff admitted that
              she intentionally left portions of the HIPAA form blank and
              anticipated that the defendant medical providers would fill it
              in. 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.” We rejected the plaintiff's
              argument and noted as we had in Stevens that it is the health

                                             -8-
              care liability plaintiff, not defendant, that is responsible for
              complying with the requirements of Tennessee Code
              Annotated section 29–26–121(a)(2)(E).


                                      *      *      *

              We know of no authority permitting the Providers to alter the
              authorization forms that were already given to them.
              Moreover, as we have noted, it was incumbent upon the
              Plaintiffs to achieve substantial compliance with Tennessee
              Code Annotated section 29–26–121(a)(2)(E). The Providers
              owed no duty to the Plaintiffs to help them achieve this
              standard. The Plaintiffs' argument that the Providers should
              have customized the forms given to them is accordingly
              rejected.

J.A.C., 542 S.W.3d at 515–16 (internal citations omitted).

       Accordingly, we follow our precedent in holding that a person receiving an
authorization with blanks is not authorized to fill in the blanks.

                                            VI.

        As noted above, the proper means to challenge plaintiff’s compliance with Tenn.
Code Ann. § 29-26-121 is through a Tenn. R. Civ. P. 12.02 motion. Our Court has
rejected the argument that the onus should be placed on defendants to test the sufficiency
of the authorization, or even to complete an inadequate authorization. See, e.g., Roberts v.
Prill, 2014 WL 2921930, at *6. Furthermore, our court noted in J.A.C.:

              Several Tennessee decisions have rejected the proposition
              that a health care liability defendant has a duty to assist a
              plaintiff 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,

                                            -9-
              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).

J.A.C., 542 S.W.3d at 514–15. Defendants are not required to attempt to use a medical
authorization to gather patient medical records, if the defendant believes the
authorizations to be defective. It therefore follows that a defendant’s claim of prejudice is
not waived by failing to attempt to use or otherwise “test” an allegedly defective
authorization.

                                            VII.

       Based on the foregoing, we reverse the judgment of the trial court denying
defendants’ motions to dismiss. This case is remanded to the trial court for the entry of an
order dismissing plaintiff’s complaint with prejudice. Costs on appeal are taxed to the
appellee, Desiree Dawn Roberts.



                                          _______________________________
                                          CHARLES D. SUSANO, JR., JUDGE




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