               IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE
                                APRIL 8, 2015 Session

    WHITNEY LEIGH HARMON, ET AL. v. GREGG IAN SHORE, ET AL.

                    Appeal from the Circuit Court for Maury County
                      No. 14641     Stella L. Hargrove, Judge


                No. M2014-01339-COA-R3-CV – Filed April 23, 2015


This is a Health Care Liability case. Appellees are the treating physician and hospital.
The trial court granted Appellees‟ Tennessee Rule of Civil Procedure 12.02 motions to
dismiss Appellant‟s lawsuit for failure to comply with the Tennessee Code Annotated
Section 29-26-121(a)(2)(E) notice provision for health care liability claims. Specifically,
the trial court determined that the required Health Insurance Portability and
Accountability Act (HIPAA) medical authorization provided by Appellant was not
substantially compliant with the statutory requirements in that the relevant medical
records were released only to Appellant‟s lawyer. Discerning no error, we affirm and
remand.

       Tenn. R. App. P. 3 Appeal as of right; Judgment of the Circuit Court is
                             Affirmed and remanded

KENNY ARMSTRONG, J., delivered the opinion of the court, in which ARNOLD B. GOLDIN,
J., and BRANDON O. GIBSON, J., joined.

Walter Woods Bussart, Lewisburg, Tennessee, for the appellants, Whitney Leigh Harmon
and Joshua David Harmon.

Michael F. Jameson, Nashville, Tennessee, for the appellee, Gregg Ian Shore.

Taylor Bradford Mayes, Nashville, Tennessee for the appellee, Maury Regional Hospital
d/b/a Maury Regional Medical Center and d/b/a Maury Regional Surgical Center.

                                       OPINION

                                     I. Background
        On April 30, 2012, Whitney Leigh Harmon was seen by Gregg Ian Shore, M.D.
At that time, Dr. Shore was allegedly an employee of Maury Regional Hospital d/b/a
Maury Regional Medical Center d/b/a Maury Surgical Center (“Maury Regional,” and
together with Dr. Shore, “Appellees”).1 Mrs. Harmon presented with a swollen lymph
node in the right side of her neck. She reported that there had been no trauma to the
affected area, but that her symptoms had begun four months prior to her visit with Dr.
Shore. After evaluating Mrs. Harmon, Dr. Shore diagnosed a cutaneous mass and
scheduled a biopsy. Dr. Shore performed the excisional biopsy of Mrs. Harmon‟s post-
auricular, right-sided, cutaneous mass at Maury Regional on May 7, 2012. Dr. Shore‟s
notes indicate that he performed the entire procedure on Mrs. Harmon. Dr. Shore
indicated that he removed as much of the mass as possible, although there seemed to be a
bit remaining under some of the deep strap muscles of the neck. According to Dr. Shore‟s
notes, the etiology of the mass was unclear.

       At a follow-up visit with Dr. Shore on May 16, 2012, he noted that Mrs. Harmon
had developed a post-operative infection with swelling, as well as lower lip numbness.
His exam found the wound tender, and seroma fluid was aspirated at the site. Mrs.
Harmon did not see Dr. Shore again after May 16, 2012. On June 27, 2012, when her
condition had not substantially improved, Mrs. Harmon sought treatment from a Board-
Certified Otolaryngologist, who noted that she had immediate right-lip paresis, and
recurrent swelling. He noted that Mrs. Harmon was draining saliva from the neck.

       On April 8, 2013, Mrs. Harmon and her husband, Joshua David Harmon (together
with Mrs. Harmon, the “Harmons,” or “Appellants”) filed a Health Care Liability
complaint against the Appellees. Therein, the Harmons allege that, following treatment,
the paralysis, swelling and drainage continued and that she is not able to eat or drink
normally, nor is she able to smile. In addition, the Harmons allege that Mrs. Harmon‟s
speech is impaired and that this condition appears to be permanent in nature.
Accordingly, the Harmons claim that Dr. Shore and Maury Regional were negligent in
Mrs. Harmon‟s care and treatment.

        The Harmons‟ complaint further states that they have complied with the notice
requirements contained in Tennessee Code Annotated Section 29-26-121. As is relevant
to the instant appeal, Tennessee Code Annotated Section 29-26-121provides:

        (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

1
  There is dispute in the record as to whether Dr. Shore was an employee of Maury Regional or whether
he was an independent contractor. The distinction is not relevant to the issues presented in this appeal.
                                                     2
        (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.

Although Appellants mailed a HIPAA medical authorization to the Appellees, the
authorization only released Mrs. Harmon‟s medical records to her own lawyer.

       On May 13, 2013, Dr. Shore filed a motion to dismiss Appellants‟ complaint on
grounds that the medical authorization was not compliant with Tennessee Code
Annotated Section 29-26-121 in that the authorization did not release Mrs. Harmon‟s
records to Dr. Shore.2 On May 14, 2013, Maury Regional filed a motion to dismiss the
complaint on the ground that the medical release did not authorize release of Mrs.
Harmon‟s records to Maury Regional. The motions to dismiss were heard on August 23,
2013. The motions were subsequently denied by order entered on October 4, 2013.

        Following denial of their respective motions to dismiss, Appellees filed motions in
the trial court for interlocutory appeal and to stay the proceedings. Although the trial
court granted interlocutory appeal, this Court denied the Appellees‟ Tennessee Rule of
Appellate Procedure 9 applications for permission to appeal. Appellees then appealed
our denial of interlocutory appeal to the Tennessee Supreme Court. The Tennessee
Supreme Court granted the applications and remanded the case to the trial court to
reconsider its denial of the motions to dismiss in light of the holding in Stevens v.
Hickman Cmty. Health Care Servs., 418 S.W.3d 547 (Tenn. 2013).

       After hearing on remand from the Tennessee Supreme Court, the trial court
granted Dr. Shore‟s motion to dismiss the complaint by order entered June 17, 2014,
wherein it found, in relevant part:



2
  Dr. Shore filed a contemporaneous motion for summary judgment on the same grounds. The trial court
granted both the motion for summary judgment and the motion to dismiss. Because the proper means of
contesting a plaintiff‟s failure to comply with the health care liability act pre-suit notice requirements is
through a motion to dismiss, Myers v. AMISUB (SFH), Inc., 382 S.W.3d 300, 307 (Tenn. 2012), we will
deem the grant of the motion to dismiss to be the proper adjudication of this case and will address only
that motion.
                                                     3
            In light of the ruling in Stevens, this Court must now grant . . . Gregg
      Ian Shore, M.D.‟s Motion to Dismiss . . . .

            It is clear to the Court that [Appellants] failed to provide the required
      HIPAA-compliant medical authorizations in their pre-suit notice.
      Accordingly, the Court finds that [Appellants] failed to substantially
      comply with the requirements of Tenn. Code Ann. § 29-26-121 (a)(2)(E).

              It was [Appellants‟] position that any noncompliance on their part
      was excused by extraordinary cause in that “[Appellees] had the records at
      all times.” In their responsive pleadings filed August 20, 2013, [Appellants]
      stated:
                     [Appellants] submit that an example of sufficient
              “cause” is that [Appellants] knew [Maury Regional] had Dr.
              Shore‟s records. We know [Maury Regional] had all of her
              records because it sent them to her four months before the
              Notice was sent and Dr. Shore‟s records were included.
                     [Maury Regional] also had a HIPAA compliant
              medical authorization in its possession as early as June 7,
              2012, scarcely a month after the incident. It also had the other
              Defendant‟s records, i.e., Gregg Ian Shore, M.D. We know
              this because it sent those exact records to Mrs. Harmon on
              June 7, 2010.
                     We also know [Maury Regional] had the Shore records
              because Shore was their agent and he sent her the same
              records. Therefore, extraordinary cause exists for the exercise
              of judicial discretion.

             The Court finds that a HIPAA-compliant medical authorization
      permits health care providers to obtain complete medical records from any
      other provider receiving notice. A health care provider has the right to be
      assured it has the full and complete medical records of other providers. The
      Court disagrees with [Appellants‟] position and finds their noncompliance
      was not excused by extraordinary cause.

By separate order of July 2, 2014, the trial court granted Maury Regional‟s motion to
dismiss on the same grounds as cited for its grant of Dr. Shore‟s motion.

                                        II. Issues

      The Harmons appeal. They raise two issues for review as stated in their brief:
                                            4
   1. Whether the trial court properly applied the Stevens case by ruling that “. . .
      [Appellants‟] non-compliance was not excused by extraordinary cause.”

   2. Whether applying the proper standard in Stevens, [Appellants] complied with the
      “essence” of Section 121 and there was no “prejudice” to [Appellees].

                                 III. Standard of Review

        In this action, Appellees properly filed a motion to dismiss. Myers v. AMISUB
(SFH), Inc., 382 S.W.3d 300, 307 (Tenn. 2012) (“The proper way for a defendant to
challenge a complaint‟s compliance with Tennessee Code Annotated Section 29-26-121
is to file a Tennessee Rule of Procedure 12.02 motion to dismiss.”). In Myers, the Court
further explained:

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

Id. The trial court‟s grant of the motion to dismiss is subject to a de novo review with no
presumption of correctness because we are reviewing the trial court‟s legal conclusion.
Blackburn v. Blackburn, 270 S.W.3d 42, 47 (Tenn. 2008); Union Carbide Corp. v.
Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993).

        Here, the Appellants do not dispute that the medical authorization they provided as
part of their pre-suit notice was not HIPAA-compliant in that it released Mrs. Harmon‟s
records only to her lawyer. Appellants‟ only issues concern whether their failure to
provide a HIPAA-compliant release should be excused. “The question of whether [a
plaintiff] has demonstrated extraordinary cause that would excuse compliance with the
statutes is a mixed question of law and fact, and our review of that determination is de
novo with a presumption of correctness applying only to the trial court‟s findings of fact
and not to the legal effect of those findings.” Myers, 382 S.W.3d at 307-08 (citing Starr
v. Hill, 353 S.W.3d 478, 481-82 (Tenn. 2011)). This Court reviews a “trial court‟s
decision to excuse compliance under an abuse of discretion standard.” Id. at 308. “A trial
                                             5
court abuses its discretion only when it „applie[s] an incorrect legal standard or reache[s]
a decision which is against logic or reasoning that cause[s] an injustice to the party
complaining.‟” Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001) (quoting State v.
Shirley, 6 S.W.3d 243, 247 (Tenn. 1999)). If a discretionary decision is within a range of
acceptable alternatives, we will not substitute our judgment for that of the trial court
simply because we may have chosen a different alternative. White v. Vanderbilt Univ.,
21 S.W.3d 215, 223 (Tenn. Ct. App. 1999).

                                        IV. Analysis

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

       In determining whether a plaintiff has substantially complied with a
       statutory requirement, a reviewing court should consider the extent and
       significance of the plaintiff's errors and omissions and whether the
       defendant was prejudiced by the plaintiff's noncompliance. Not every non-
       compliant HIPAA medical authorization will result in prejudice. But in this
       case, the medical authorization submitted by Plaintiff was woefully
       deficient. The errors and omissions were numerous and significant. Due to
       Plaintiff's material noncompliance, Defendants were not authorized to
       receive any of the Plaintiff's records. As a result of multiple errors, Plaintiff
       failed to substantially comply with the requirements of [section 29-26-
       121(a)(2)(E)].


Id. at 556. As further discussed in Stevens, Tennessee Code Annotated Section 39-36-
121(a)(2)(E) “serves to equip defendants with the actual means to evaluate the
substantive merits of plaintiff's claim by enabling early access to a plaintiff‟s medical
records.” Stevens, 418 S.W.3d at 555. The Stevens Court went on to note that “[b]ecause
HIPAA itself prohibits medical providers from using or disclosing a plaintiff's medical
records without a fully compliant authorization form, it is a threshold requirement of the
                                              6
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)).

       As noted by Appellants in their brief, the deficiencies in the medical release at
issue in Stevens were “multiple,” i.e., the Stevens Court noted that “Plaintiff's medical
authorization failed to satisfy at least three of the six compliance requirements mandated
by HIPAA.” Stevens, 418 S.W.3d at 556. Because the sole deficiency in the medical
release authorization at issue here is the Appellants‟ failure to allow disclosure to the
Appellees, Appellants contend that this error, alone, is not sufficient to negate their
lawsuit. We disagree. The Stevens Court specifically stated: “First, and most
importantly, by permitting disclosure only to Plaintiff's counsel, Plaintiff's medical
authorization failed to satisfy the express requirement of Tenn. Code Ann. § 29–26-
121(a)(2)(E) that a plaintiff's medical authorization „permit[ ] the provider receiving the
notice to obtain complete medical records from each other provider being sent a notice.‟”
Id. (emphasis added).

       The question of whether a plaintiff‟s permitting disclosure of medical records only
to plaintiff‟s lawyer is sufficient, standing alone, to warrant dismissal of a lawsuit on
grounds of failure to substantially comply with the pre-suit notice requirements has been
answered by this Court in Roberts v. Prill, No. E2013–02202–COA–R3–CV, 2014 WL
2921930 (Tenn. Ct. App. June 26, 2014). In Roberts, as in the instant case, the plaintiff‟s
medical release authorization permitted disclosure only to plaintiff‟s lawyer. Likewise,
the Roberts plaintiff argued that the defendants were not prejudiced by this deficiency
because defendants were in possession of plaintiff‟s records. In affirming the trial court‟s
dismissal of plaintiff‟s lawsuit on a motion to dismiss, we stated:

       Plaintiff further claims that Defendants were not prejudiced by the
       incomplete form when Defendants already had the relevant records in their
       possession. Section 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.” “[I]t 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.” Stevens, 418 S.W.3d at 555 (citing 45 C.F.R. §
       164.508(a)(1)). In limited circumstances, HIPAA provides for the use or
       disclosure of medical records without specific authorization “by the
       covered entity to defend itself in a legal action.” 45 C.F.R. §
       164.508(a)(2)(i)(C). However, HIPAA generally provides that a covered
       entity may not “use or disclose protected health information without” valid
       authorization. 45 C.F.R. § 164.508(a)(1). Plaintiff's case did not fall within
                                             7
         one of the limited circumstances anticipated by HIPAA that would allow
         for the use of the records without authorization. The form failed to provide
         Defendants with the proper authorization to use the medical records to
         mount a defense.

Roberts, 2014 WL 2921930 at *6. Here, as in Roberts, Appellants‟ case does not
fall within one of the limited circumstances that would allow for the use of Mrs.
Harmon‟s records without authorization.3 For this reason, and based upon the
holdings in Stevens and Roberts, we cannot conclude that the trial court abused its
discretion in declining to excuse Appellants‟ failure to comply with Tennessee
Code Annotated Section 29-26-121(a)(2)(E).

                                         V. Conclusion

       For the foregoing reasons, we affirm the order of the trial court. The case is
remanded for such further proceedings as may be necessary and are consistent
with this opinion. Costs of the appeal are assessed against the Appellants,
Whitney Leigh Harmon, Joshua David Harmon, and their surety, for all of which
execution may issue if necessary.



                                                           _________________________________
                                                           KENNY ARMSTRONG, JUDGE

3
    The limited exceptions outlined in 45 C.F.S. § 164.508(a)(2)(i) are:

         (2) Authorization required: Psychotherapy notes. Notwithstanding any provision of this
         subpart, other than the transition provisions in § 164.532, a covered entity must obtain an
         authorization for any use or disclosure of psychotherapy notes, except:

         (i) To carry out the following treatment, payment, or health care operations:

         (A) Use by the originator of the psychotherapy notes for treatment;

         (B) Use or disclosure by the covered entity for its own training programs in which
         students, trainees, or practitioners in mental health learn under supervision to practice or
         improve their skills in group, joint, family, or individual counseling; or

         (C) Use or disclosure by the covered entity to defend itself in a legal action or other
         proceeding brought by the individual.

(Emphasis added). The highlighted language clearly indicates that the foregoing exceptions apply only to
the disclosure of “psychotherapy notes,” which are not at issue in the instant case.
                                                    8
