                                                                                           05/01/2020
                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT KNOXVILLE
                                October 17, 2019 Session

      TAMMY COMBS, ET AL. v. LESLIE MILLIGAN, M.D., ET AL.

                   Appeal from the Circuit Court for Jefferson County
                        No. 24-334-III      Rex H. Ogle, Judge
                       ___________________________________

                            No. E2019-00485-COA-R3-CV
                        ___________________________________


This appeal concerns healthcare liability. A husband and wife filed an action against six
medical care providers alleging negligence in the medical treatment of the wife. The
defendants moved to dismiss the suit on the basis of noncompliance with Tennessee Code
Annotated section 29-26-121(a)(2)(E), which requires that pre-suit notice include a
HIPAA1 compliant medical authorization allowing a healthcare provider receiving a
notice to obtain complete medical records from every other provider that is sent a notice.
The plaintiffs’ authorization allowed each provider to disclose complete medical records
to each named provider but did not state specifically that each provider could obtain
records from each other. The trial court held that the authorization failed to substantially
comply with the statute’s requirements. The plaintiffs appealed. We hold that Plaintiffs’
method of permitting Defendants access to Mrs. Combs’s medical records substantially
complied with Tennessee Code Annotated section 29-26-121(a)(2)E). We reverse the
judgment of the trial court.


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


JOHN W. MCCLARTY, J., delivered the opinion of the court, in which CHARLES D.
SUSANO, JR., J., and D. MICHAEL SWINEY, C.J., joined.

Steven W. Terry, Morristown, Tennessee, for the appellants, Tammy Combs and Michael
Combs.

Edward G. White, Wayne A. Kline, and Lyndsey L. Lee, Knoxville, Tennessee, for the
       1
        HIPAA refers to the Health Insurance Portability and Accountability Act of 1996, Pub.
L. No. 104-191, 110 Stat. 1936.
appellee, Leslie Milligan, M.D.

Mark A. Castleberry, Knoxville, Tennessee, for the appellee, Hyun Ah Kim, M.D.


                                        OPINION

                                   I. BACKGROUND

       On January 2, 2014, Tammy Combs was hospitalized at Jefferson Memorial
Hospital (“Hospital”) for pancreatitis. Four days later, a port was surgically inserted into
Mrs. Combs by Leslie W. Milligan, M.D. Later that month, Mrs. Combs was advised by
her family physician that her port site could potentially be infected. He prescribed an
antibiotic and instructed Mrs. Combs to schedule an appointment with Dr. Milligan, the
doctor who had inserted the port. The following day, Mrs. Combs was examined by Dr.
Milligan. He flushed the port, told Mrs. Combs to finish the course of the antibiotic, and
to return to his office the following week. On January 27, 2014, Mrs. Combs returned to
see Dr. Milligan, who informed her that the port site looked good.

       Mrs. Combs’s condition worsened. On February 12, 2014, she went to the
emergency room at Hospital and was examined for possible pneumonia and pleurisy.
Testing revealed an elevated white blood cell count; a CT scan indicated a “filling defect”
around the distal tip of the catheter on the port. On March 1, 2014, Mrs. Combs
experienced vomiting and severe pain in her back. The next day, she was brought to the
emergency room at Hospital via ambulance and was admitted. Her care was overseen by
Hyun Ah Kim, M.D. On March 3, 2014, Dr. Kim ordered an MRI of Mrs. Combs’s
back, which revealed a bulging disc. Although she was released on March 4, 2014, Mrs.
Combs returned the following day to the emergency room because of bladder issues.

       By March 14, 2014, Mrs. Combs’s condition had deteriorated to the point that she
could not get out of bed. Her family physician made a home visit and arranged for an
MRI to rule out osteomyelitis, a rare bone infection, generally found in the legs, arms, or
spine. After receiving the MRI on March 16, 2014, Mrs. Combs was promptly sent to
University of Tennessee Medical Center, where a diagnosis of osteomyelitis of the spine
was confirmed. The source of the infection at the port site was determined to be the
originating cause of the osteomyelitis. Mrs. Combs incurred permanent injuries to her
spine and bladder.

       On January 22, 2015, notice of potential healthcare liability was sent to eight
medical care providers as per Tennessee Code Annotated section 29-26-121(a)(1). As
noted in Stevens ex rel. Stevens v. Hickman Cmty. Health Care Servs., Inc., 418 S.W.3d
547 (Tenn. 2013),

                                           -2-
       Tenn. Code Ann. § 29-26-121(a)(1) contains an express notice requirement
       that requires plaintiffs to give defendants written notice that a potential
       healthcare liability claim may be forthcoming. In contrast, Tenn. Code
       Ann. §§ 29-26-121(a)(2)(A)-(C) facilitate early resolution of healthcare
       liability claims by requiring plaintiffs to advise defendants who the plaintiff
       is, how to reach him or her, and how to contact his or her attorney. Lastly,
       the requirements of Tenn. Code Ann. § 29-26-121(a)(2)(E) serve an
       investigatory function, equipping defendants with the actual means to
       evaluate the substantive merits of a plaintiff’s claim by enabling early
       discovery of potential co-defendants and early access to a plaintiff’s
       medical records.

       The plain language of Tenn. Code Ann. § 29-26-121(a)(2) provides that
       each of the aforementioned requirements “shall” be included in a plaintiff’s
       written notice to potential defendants. . . .

Id. at 554. The pre-suit notice packet included a letter accompanying the medical
authorization stating, in part, as follows:

       Attached please find a list of providers to whom a substantially similar
       notice is being sent pursuant to T.C.A. 29-26-121(a). [A list of providers
       followed.] As required by T.C.A. § 29-26-121(a)(2)(E), Tammy D. Combs
       has executed a HIPAA-compliant medical authorization authorizing you to
       obtain complete medical records from [same list of providers].”

(Emphasis added). An affidavit provided in the packet also noted that the authorization
permitted the provider “to obtain complete medical records” from the other providers that
received notice.

       On May 21, 2015, a complaint was filed by Mrs. Combs and her husband, Michael
Combs (collectively, “Plaintiffs”), naming Dr. Milligan; Jacob Paul Barbee, M.D.; Strant
Thompson Colwell, M.D.; Southeastern Emergency Physicians, LLC, (“SEP”); Dr. Kim;
and Hospital (collectively, “Defendants”) as defendants. The complaint was filed within
the 120-day extension to the statute of limitations provided by Tennessee Code
Annotated section 29-26-121(c) (“When notice is given to a provider as provided in this
section, the applicable statutes of limitations and repose shall be extended for a period of
one hundred twenty (120) days from the date of expiration of the statute of limitations
and statute of repose applicable to that provider.”).

       Dr. Barbee, Dr. Milligan, SEP, Dr. Kim, and Hospital filed motions to dismiss
asserting Plaintiffs’ failure to comply with the requirements regarding the medical
authorization as stated in Tennessee Code Annotated section 29-26-121(a)(2)(E). Dr.
Colwell did not file a motion to dismiss but agreed that the disposition of the other
                                         -3-
motions would be binding on him as well. In the motions to dismiss, Defendants argued
that the release did not authorize them to obtain or use the medical records of any of the
other noticed providers. Instead, they asserted that the authorization authorized each
provider only to disclose and use his own records.

       Plaintiffs responded that the authorization included in the pre-suit notice packet
allowed each provider to share Mrs. Combs’s medical records with every other provider
that received a notice. Specifically, they contended that Paragraph 5 of each
authorization stated, “[t]his information may be disclosed to and used by the following
individual or organization for the purpose of a legal matter” and listed all the medical
providers receiving a notice. They argued that had Defendants attempted to obtain
records, no provider would have been permitted to withhold the records based on the
authorization. According to Plaintiffs, Defendants are complaining because the word
“disclose” was used instead of the word “obtain.” They asserted that Defendants did not
even attempt to obtain records before seeking to dismiss the complaint.

       The motions to dismiss were heard together on December 1, 2015, and the trial
court orally granted a dismissal as to all Defendants. An order (“First Order”) granting
these motions as to all Defendants was signed on January 13, 2016, and entered on
January 19, 2016.

       On or about December 28, 2015, prior to the entry of First Order, counsel for SEP,
Dr. Barbee, and Dr. Colwell notified the court and all parties that a third-party claims
administrator2 had obtained a separate authorization from Mrs. Combs and had obtained
the medical records on behalf of these three defendants. On February 17, 2016, Plaintiffs
filed a motion to alter or amend the order of dismissal as to SEP, Dr. Barbee, and Dr.
Colwell only. Plaintiffs sought no relief from First Order as to Dr. Milligan, Dr. Kim, or
Hospital. On July 14, 2016, an agreed order (“Second Order”) was entered by the trial
court setting aside First Order as to SEP, Dr. Barbee, and Dr. Colwell only. Second
Order made no mention of Dr. Milligan, Dr. Kim, or Hospital and did not address First
Order’s dismissal of them.3 Second Order specifically noted:

       [I]t is hereby ORDERED that the Court’s Order filed on January 19, 2016
       that dismissed Defendants Jacob Paul Barbee, M.D., Strant Thompson
       Colwell, M.D., and Southeastern Emergency Physicians, LLC is hereby set
       aside as to these Defendants and this cause shall proceed against these
       Defendants.

On August 12, 2016, within 30 days of Second Order, Plaintiffs moved the trial court for

       2
         Western Litigation Services, Inc. (“Western”), the third-party claims administrator,
obtained the medical records on behalf of SEP, Dr. Barbee, and Dr. Colwell.
       3
         Their names did remain as defendants in the caption.
                                            -4-
permission to seek interlocutory review of First Order in an attempt to retain Dr.
Milligan, Dr. Kim, and Hospital as parties in the action.

        Defendants dismissed in First Order (Dr. Milligan, Dr. Kim, and Hospital) argued
that it was the final order as to them. They asserted that they were dismissed in January
2016, and were not involved in the events that occurred thereafter. According to
Defendants, Plaintiffs did not indicate any challenge to the initial final ruling relating to
them. They contended:

       We got dismissed out of this lawsuit by virtue of an order entered last
       January, and [Plaintiffs’ counsel] never took either a Rule 3 or a Rule 9
       action to appeal that ruling until he filed this motion in August. . . . He
       didn’t seek relief from your dispositive ruling order as to our three
       Defendants until eight months later.

       Plaintiffs maintained that First Order was not a final order because they had filed a
motion to alter or amend within 30 days of First Order and had no right to request an
interlocutory appeal at that time. They asserted that within 30 days of Second Order,
they timely filed the motion for an interlocutory appeal on the authorization issue as to
Dr. Milligan, Dr. Kim, and Hospital. Plaintiffs acknowledged that the amended order
“does not reinstate the claims against Defendants Leslie Milligan, M.D. [and] Hyun Ah
Kim, M.D.” The trial court denied Plaintiffs’ motion, ruling that “First Order previously
entered” was “the final judgment” as to the dismissal because it “decide[d] all issues
between all the parties in question” and “the time to pursue an interlocutory appeal ha[d]
long passed[.]”

       Ultimately, SEP, Dr. Barbee, and Dr. Colwell moved for summary judgment. On
February 19, 2019, more than three years after the entry of First Order, the trial court
granted their dispositive motion (“Third Order”). Plaintiffs filed a notice of appeal as to
all Defendants on March 15, 2019, “appeal[ing] the final judgment of the [trial court]
filed on February 19, 2019[,]” but making no mention of First Order. Like Second Order,
Third Order made no mention of Defendants now before us.4

        On April 1, 2019, Plaintiffs moved to voluntarily dismiss SEP, Dr. Barbee, and
Dr. Colwell, and an order dismissing these parties was entered on April 11, 2019.
Shortly thereafter, on April 25, 2019, Dr. Milligan submitted a motion to dismiss the
appeal asserting this court’s lack of jurisdiction. Dr. Kim and Hospital filed notices
joining Dr. Milligan’s motion to dismiss on May 5 and May 7, 2019, respectively. On
May 16, 2019, we denied the motion to dismiss “without prejudice to the appellees’
ability to raise the jurisdictional issue discussed in the motion in their responsive briefs.”
On June 25, 2019, Plaintiffs filed a motion to voluntarily dismiss Hospital, which was

       4
           The caption of the order did not list Drs. Milligan or Kim.
                                                 -5-
granted, leaving Dr. Milligan and Dr. Kim as Defendants in this timely filed appeal.


                                         II. ISSUES

      We restate the issues raised in this appeal by Plaintiffs as follows:

      1.     Whether Plaintiffs failed to substantially comply with the
      requirements of Tennessee Code Annotated section 29-26-121(a)(2)(E),
      which requires the provision to Defendants of a HIPAA compliant medical
      authorization permitting each medical provider the ability to obtain the
      medical records from other medical providers receiving a notice.

      2.     Whether the trial court erred in dismissing Plaintiffs’ complaint for
      failure to provide a compliant medical authorization despite not finding
      prejudice to Defendants.

Defendants raised the following issue:

      3.    Whether this court lacks jurisdiction to hear Plaintiffs’ appeal
      because the notice of appeal was not timely filed.


                            III. STANDARD OF REVIEW

       “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.” Phillips v. Casey, No. E2014–01563–COA–R9–
CV, 2015 WL 4454781, at *2 (Tenn. Ct. App. July 21, 2015) (citing Myers v. AMISUB
(SFH), Inc., 382 S.W.3d 300, 307 (Tenn. 2012)). Our Supreme Court has provided the
following guidance regarding healthcare liability actions:

      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
                                             -6-
      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.

Myers, 382 S.W.3d at 307.

       Reviewing a lower court’s decision on a motion to dismiss is a question of law
which this court must review de novo, with no presumption of correctness. Myers, 382
S.W.3d at 307 (citing Graham v. Caples, 325 S.W.3d 578, 581 (Tenn. 2010)).
Additionally, statutory construction is a question of law that is reviewed de novo without
any presumption of correctness. Id. (citing In re Estate of Tanner, 295 S.W.3d 610, 613
(Tenn. 2009)).


                                   IV. DISCUSSION

                                       Jurisdiction

       First, let us address the issue concerning our jurisdiction to hear this appeal.
Defendants assert that we lack jurisdiction to hear the appeal because Plaintiffs waited
too long after the entry of First Order dismissing these doctors to file their notice of
appeal. They further contend that the issues raised by Plaintiffs are settled law.

      Rule 54.02 of the Tennessee Rules of Civil Procedure provides, in pertinent part:

      When more than one claim for relief is present in an action, whether as a
      claim, counterclaim, cross-claim, or third party claim, or when multiple
      parties are involved, the court, whether at law or in equity, may direct the
      entry of a final judgment as to one or more but fewer than all of the claims
      or parties only upon an express determination that there is no just reason for
      delay and upon an express direction for the entry of judgment. In the
      absence of such determination and direction, any order or other form of
      decision, however designated, that adjudicates fewer than all the claims or
      the rights and liabilities of fewer than all the parties shall not terminate the
      action as to any of the claims or parties, and the order or other form of
      decision is subject to revision at any time before the entry of the judgment
      adjudicating all the claims and the rights and liabilities of all the parties.

      Plaintiffs timely filed a motion to alter or amend First Order, which granted a
dismissal as to all Defendants. Second Order set aside First Order with respect to SEP,
Dr. Barbee, and Dr. Colwell only. However, the trial court did not certify either First
                                         -7-
Order or Second Order as final pursuant to Rule 54.02. The fact that some claims against
some parties remained unresolved meant that there was no final judgment. Neither First
Order as amended nor Second Order was a final order. It was only Third Order than
resolved all the remaining claims against all the remaining parties. Thus, Third Order
was the true final judgment in this case, and Plaintiffs timely appealed from it.
Consequently, we have jurisdiction to hear this appeal.


                                    Authorization

       Tennessee Code Annotated section 29-26-121(a)(2)(E) provides that a 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.” Id. In Stevens, the Tennessee Supreme Court related:

      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.

418 S.W.3d at 555. The Court observed that “Tenn. Code Ann. § 29-26-121(a)(2)(E)
serve[s] an investigatory function.” Id. at 554.

       The Code of Federal Regulations provides that “a covered entity may not use or
disclose protected health information without an authorization that is valid under this
section.” 45 C.F.R. § 164.508(a)(1). A valid HIPAA compliant authorization must
contain at least the following six core 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. The
                                         -8-
      statement “at the request of the individual” is a sufficient description of the
      purpose when an individual initiates the authorization and does not, or
      elects not to, provide a statement of the purpose.

      (v) An expiration date or an expiration event that relates to the individual or
      the purpose of the use or disclosure. The statement “end of the research
      study,” “none,” or similar language is sufficient if the authorization is for a
      use or disclosure of protected health information for research, including for
      the creation and maintenance of a research database or research repository.

      (vi) Signature of the individual and date. If the authorization is signed by a
      personal representative of the individual, a description of such
      representative’s authority to act for the individual must also be provided.

45 C.F.R. § 164.508(c)(1). The provisions in the Code of Federal Regulations list five
defects that make an authorization invalid:

      (2) Defective authorizations. An authorization is not valid, if the document
      submitted has any of the following defects:

      (i)    The expiration date has passed or the expiration event is known by
      the covered entity to have occurred;
      (ii)   The authorization has not been filled out completely, with respect to
      an element described by paragraph (c) of this section, if applicable;
      (iii) The authorization is known by the covered entity to have been
      revoked;
      (iv) The authorization violates paragraph (b)(3) or (4) of this section, if
      applicable;
      (v)    Any material information in the authorization is known by the
      covered entity to be false.

45 C.F.R. § 164.508(b)(2). Plaintiffs argue that because the authorization fulfilled all of
the requirements of HIPAA, 45 C.F.R. § 164.508, it automatically satisfied the statutory
requirements of section 29-26-121(a)(2)(E). Furthermore, Plaintiffs contend that because
each provider was authorized to disclose to each other provider, the authorization does in
fact permit the providers to obtain all medical records from each other provider receiving
notice. They allege that the language is sufficient to allow any of the named parties to
request Mrs. Combs’s medical records from any of the other listed parties and to obtain
the records. They contend that Tennessee Code Annotated section 29-26-121(a)(2)(E)
does not require that the authorization be worded in any specific way. According to
Plaintiffs, because the authorization does allow the providers to share records with each
other, it is substantially compliant with Tennessee Code Annotated section 29-26-
121(a)(2)(E). Additionally, Plaintiffs argue that Defendants knew “from the clear
                                            -9-
language of the notice letter” that they could “request [] records from the other providers,
each of whom received their own similar authorization” and “they would have received
the records.”5

       Defendants respond in opposition that Plaintiffs have ignored the statutory
language that requires not only “[a] HIPAA compliant medical authorization,” but
specifically requires that such authorization “permit[] the provider receiving the notice to
obtain” the records from the other noticed providers. According to Defendants, the
medical authorization only permitted them “to disclose” their own medical records to
other providers. They argue that the authorization did not permit “the provider receiving
the notice to obtain complete medical records from each other provider.” Tenn. Code
Ann. § 29-26-121(a)(2)(E) (emphasis added). Paragraph 2 identifies the provider
“authorized to make the disclosure[.]” Paragraph 5 provides that the provider’s records
“may be disclosed to and used by” all of the noticed providers, including Dr. Milligan
and Dr. Kim. However, nothing about paragraphs 2 or 5 authorized Dr. Milligan or Dr.
Kim to obtain the records of any of the other noticed providers.

       Defendants further observe that paragraph 8 of the authorization provided:

              8. The medical provider IS NOT AUTHORIZED to discuss
              my medical care with the Requester herein. Further, the
              medical provider is not authorized to generate additional
              records or reports at the request of the Requester.

They claim that even if they had contacted the other noticed providers to determine
whether they had received a similar authorization permitting them to obtain their records,
those other providers would not have been permitted to discuss that information with
them. They observe that providers “that wrongfully disclose or obtain private health
information in violation of HIPAA may face fines of up to $50,000 per offense and/or
imprisonment of up to one year.” Woodruff by and through Cockrell v. Walker, 542
S.W.3d 486, 489 n. 9 (Tenn. Ct. App. 2017) (citing 42 U.S.C. § 1320d-6). “Because the
penalties imposed on entities that wrongfully disclose or obtain private health
information in violation of HIPAA are severe, the sufficiency of the plaintiffs’ medical
authorizations is imperative.” Id. at 489.

       Thus, Defendants argue that the authorization they received during the notice
period did not equip them with the actual means to evaluate the substantive merits of
Mrs. Combs’s claim by enabling early access to her medical records. They assert that
Plaintiffs, not Defendants, were responsible for complying with section 29-26-121, and
that our state courts have specifically rejected Plaintiffs’ argument that providers could

       5
         Our Supreme Court designated the opinion on which Plaintiffs rely as “Not for
Citation.”
                                           - 10 -
not have been prejudiced because they never attempted to obtain records with the
allegedly deficient authorization.

       Regarding noncompliance, our Supreme Court has stated:

       A plaintiff’s less-than-perfect compliance with Tenn. Code Ann. § 29–26–
       121(a)(2)(E) . . . should not derail a healthcare liability claim. Non-
       substantive errors and omissions will not always prejudice defendants by
       preventing them from obtaining a plaintiff’s relevant medical records.
       Thus, we hold that a plaintiff must substantially comply, rather than strictly
       comply, with the requirements of Tenn. Code Ann. § 29-26-121(a)(2)(E).

Stevens, 418 S.W.3d at 555. However, it remains “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)).
This is “[b]ecause HIPAA itself prohibits medical providers from using or disclosing a
plaintiff’s medical records without a fully compliant authorization form.” Id.

       In its determination regarding whether a plaintiff has substantially complied with
the requirement of Tennessee Code Annotated section 29-26-121(a)(2)(E), “a reviewing
court should consider the extent and significance of plaintiff’s errors and omissions and
whether the defendant was prejudiced by the plaintiff’s noncompliance.” Id. at 556.
Plaintiffs claim that Defendants have not established any prejudice.

      Plaintiffs argue that Defendants did not attempt to use the authorization. They
maintain that the medical providers could have obtained the patient’s medical records
from each other simply by requesting them because the listed medical providers were
informed in the written notice that all they had to do was ask the other listed medical
providers for the records because HIPAA authorizations had been furnished to the other
providers allowing them to disclose Mrs. Combs’s records.

        The trial court did not specifically find that Plaintiffs’ authorization failed to
strictly or substantially comply or prejudiced Defendants. The trial court ruled as
follows:

       [T]he Court very regrettably has to say that the notice does not meet the
       statutory requirements. And I think under the policy of this statute and
       even under the Supreme Court—or—the Appellate Court’s ruling, and in
       particular the State Supreme Court’s ruling, the Court must regretfully
       dismiss it. And I hate to do that and I – you know, I truly do, but it is what
       it is.

       The issue of prejudice; I guess the prejudice aspect of it is the closest for
                                          - 11 -
       me if you will. In one sense I don’t ultimately see how, how the defendants
       in my view of it-not necessarily what the Appellate Courts say, I have to
       follow what they say. But other than getting sued, I don’t know how
       they’re prejudiced . . . . But—but I think that this statute was passed to
       avoid that. And I guess the legislature is of the opinion that for them to
       have to face a lawsuit, period, is prejudice to, to a doctor or a medical
       provider. Gosh, low be of us to interfere with that or make them have to
       face the music like everybody else. But, having said that, that’s the ruling
       of the court.

As noted by Plaintiffs, it is not completely clear from the transcript of the hearing as to
what grounds the complaint was dismissed. Plaintiffs contend that it is not clear why the
trial court believed the authorization was insufficient. They note that the holding did not
address strict versus substantial compliance or indicate which standard the court was
applying. Plaintiffs stress that the trial court found no prejudice to Defendants and that
Defendants cannot show any manner in which they were prejudiced.

        Tennessee Code Annotated section 29-26-121(a)(2)(E) requires that a healthcare
liability plaintiff provide a HIPAA compliant medical authorization permitting each
provider receiving the notice to obtain complete medical records from each other. If, as
here, an authorization permits a defendant to obtain medical records in actual fact but
simply does not include the word “obtain,” it is still compliant. Here, the authorizations
allowed each provider to share Mrs. Combs’s medical records with every other provider
receiving a notice. Had Dr. Milligan and Dr. Kim requested records from the other
providers, each of whom received their own similar authorization, they would have
received the records. Here, substantial compliance with the statute exists because Dr.
Milligan and Dr. Kim could get all of Mrs. Combs’s medical records from the other
medical providers. To obtain the records, all they had to do was ask. While their
decision not to ask is understandable as a tactical matter, Dr. Milligan and Dr. Kim were
not prejudiced in the least by Plaintiffs’ authorization.

       We hold that Plaintiffs substantially complied with Tennessee Code Annotated
section 29-26-121(a)(2)(E). We reverse the judgment of the trial court dismissing the
complaint and remand for this matter to proceed.


                                   V. CONCLUSION

      The judgment of the trial court is reversed, and this cause is remanded for further
proceedings consistent with this opinion. The costs on appeal are assessed against
Appellees, Leslie Milligan, M.D., and Hyun Ah Kim, M.D.


                                          - 12 -
         _________________________________
         JOHN W. MCCLARTY, JUDGE




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