               IN THE COURT OF APPEALS OF TENNESSEE
                            AT JACKSON
                              October 28, 2015 Session

               DEBORAH BRAY v. RADWAN R. KHURI, M.D.

              Direct Appeal from the Circuit Court for Shelby County
                   No. CT-004039-11     Donna M. Fields, Judge


              No. W2015-00397-COA-R3-CV – Filed December 3, 2015


This is a health care liability action arising from decedent‟s death.
Appellant filed this action against Dr. Radwan Khuri. Dr. Khuri moved to dismiss this
action for failure to comply with the notice requirement of Tennessee Code Annotated
section 29-26-121 et seq. Specifically, Dr. Khuri challenged whether the medical release
provided with the pre-suit notice letter was compliant with the Health Insurance
Portability and Accountability Act of 1996 (“HIPAA”). The trial court agreed with Dr.
Khuri and dismissed the action with prejudice. Appellant timely appealed. We affirm.

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

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

Al H. Thomas and Aaron L. Thomas, Memphis, Tennessee, for the appellant, Deborah
Bray.

James T. McColgan, III, and Sherry S. Fernandez, Cordova, Tennessee, for the appellee,
Radwan R. Khuri, M.D.

                                      OPINION

                                    BACKGROUND

       On March 20, 2003, Nigel Bray (“Decedent”) was admitted to St. Francis Hospital
in Memphis, Tennessee because he was suffering from the effects of drug detoxification
and major depression. Decedent was admitted under the care of Appellee, Dr. Radwan
Khuri (“Appellee”), a licensed physician specializing in psychiatry. Decedent committed
suicide sometime during the evening of March 25, 2003, or early morning of March 26.
Decedent‟s surviving spouse (“Appellant”) originally filed suit against Appellee on
March 11, 2004. An Order of Voluntary Dismissal was entered on May 14, 2010.

        Appellant mailed Appellee a “Notice of Potential Claim for Medical Malpractice”
letter and “Authorization to Disclose Health Information” form on May 2, 2011, in
accordance with Tennessee Code Annotated section 29-26-121. Appellant re-filed this
action on September 2, 2011, alleging medical negligence. Appellee filed a motion to
dismiss, arguing that Tennessee Code Annotated section 29-26-21 did not act to extend
the one year period under which a plaintiff may re-file a claim pursuant to the Tennessee
Code Annotated section 28-1-105 “savings statute” and that Appellant filed suit outside
the three year Tennessee medical malpractice statute of repose. The circuit court issued
an order holding the case in abeyance until the Tennessee Supreme Court addressed a
similar issue in Rajvongs v. Wright, 432 S.W.3d 808 (Tenn. 2013). After the supreme
court issued its opinion in that case1, the circuit court issued an order denying Appellee‟s
motion on August 22, 2014.

       On October 2, 2014, Appellee filed a second motion to dismiss, arguing that
Appellant did not substantially comply with the health care liability statute because she
failed to provide a HIPAA-compliant medical authorization as mandated by Tennessee
Code Annotated section 29-26-121(a)(2)(E). Appellee argued that while Appellant did
provide notice as required by the statute, Appellant‟s medical authorization form was
deficient because it did not include a description of the information to be used and it
failed to identify which health care providers were authorized to make the requested
disclosures. In response, Appellant argued that the statute‟s language did not require it to
provide an authorization form at all. Appellant argued that the phrase “permitting the
provider receiving the notice to obtain complete medical records from each other
provider being sent a notice” (emphasis added) in the statute exempted her from
providing a form because there were no other providers besides Appellee. In addition,
Appellant argued that the form she provided was not deficient when read in conjunction
with the potential claim letter accompanying it. The circuit court disagreed and entered
an order granting Appellee‟s motion to dismiss on January 30, 2015. Appellant timely
appealed.

                                                ISSUES

       Appellant presents the following issues for appellate review, which we have
restated:


1
 In Rajvongs v. Wright, the supreme court held that “[b]ecause [the plaintiff] provided pre-suit notice as
required by Tennessee Code Annotated Section 29-26-121(a), he is entitled to the 120-day extension
provided by section 29-26-121(c)….” Rajvongs v. Wright, 432 S.W.3d 808, 814 (Tenn. 2013).
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       1.     Whether the circuit court erred when it ruled that Appellant‟s
              complaint should be dismissed for her failure to provide Appellee
              with a HIPAA-compliant medical authorization when Appellee was
              the only medical provider being sent the notice of potential claim.

       2.     Whether the trial court erred when it ruled that the HIPAA
              authorization that Appellant provided to Appellee was deficient
              because it left certain information to be filled out by Appellee.

                                  STANDARD OF REVIEW

       In this case, Appellee challenged Appellant‟s alleged non-compliance with the
health care liability statute by filing 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 Civil Procedure 12.02 motion to dismiss.”). 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).

       The question of whether [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)). “We review a trial court‟s decision to excuse compliance under an abuse of
discretion standard.” Id. at 308. “A trial 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)).
Because discretionary decisions involve a choice among acceptable alternatives, we will
not second-guess a trial court‟s exercise of its discretion simply because we may have
chosen a different alternative. White v. Vanderbilt Univ., 21 S.W.3d 215, 223 (Tenn. Ct.
App. 1999).

        This appeal also involves the interpretation of a statute. The proper interpretation
of a statute is an issue of law. Accordingly, we review the trial court‟s interpretation of a
statute de novo with no presumption of correctness. See Lind v. Beaman Dodge, Inc.,
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356 S.W.3d 889, 895 (Tenn. 2011); Mills v. Fulmarque, 360 S.W.3d 362, 366 (Tenn.
2012). Our primary objective when construing a statute is to effectuate the purpose of the
legislature. Lipscomb v. Doe, 32 S.W.3d 840, 844 (Tenn. 2000). In construing
legislative enactments, we presume that every word in the statute has meaning and
purpose and should be given full effect if the obvious intention of the legislature is not
violated by doing so. In re C.K.G., 173 S.W.3d 714, 722 (Tenn. 2005). When a statute is
clear, we should apply the plain meaning without complicating the task. Eastman Chem.
Co. v. Johnson, 151 S.W.3d 503, 507 (Tenn. 2004). With these principles in mind, we
turn to the substance of the appeal.

                                       ANALYSIS

Whether a HIPAA-compliant authorization form is required where there is only one
                             medical provider

       Appellant first raises the issue of whether she was required to provide a HIPAA-
compliant authorization form when Appellee was the only medical provider receiving the
notice. Tennessee Code Annotated section 29-26-121(a)(2)(E) states that a plaintiff‟s
written 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 Ann. § 29-26-121(a)(2)(E). Appellant argues
that the inclusion of the phrase “from each other provider” signals that it is unnecessary
to include an authorization when only one provider is receiving the notice because that
provider already has all the relevant records in its possession.

      However, as Appellee notes, even though Tennessee Code Annotated section 29-
26-121 is commonly referred to as the “notice statute,” providing notice is not its only
purpose. Stevens v. Hickman Cmty. Health Care, Inc., 418 S.W.3d 547, 555 (Tenn.
2013). In Stevens, our supreme court concluded that

      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 medical records.

Id. Relying on Stevens, we recently determined in Hughes v. Henry County Medical
Center that “the goal of section 29-26-121(a)(2)(E) is to provide the means necessary to
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„evaluate the substantive merits of a plaintiff‟s claim by enabling early access to a
plaintiff‟s medical records.‟” Hughes v. Henry Cnty. Med. Ctr., No. W2014-01973-
COA-R3-CV, 2015 WL 3562733, at *5 (Tenn. Ct. App. June 9, 2015) (no perm. app.
filed) (citing Stevens, 418 S.W3d at 555). Appellant solely providing notice of a potential
lawsuit through a letter to the health care provider does not “equip [Appellee] with the
actual means to evaluate the substantive merits of [Appellant‟s] complaint.” Id. Without
a HIPAA-compliant authorization form, the full purpose of the statute becomes
frustrated. While Appellee may have physically possessed Decedent‟s records, he was
unable to review them with his attorney in order to evaluate the merits of Appellant‟s
claim. Because we cannot construe a statute in such a way that would violate “the
obvious intention of the legislature,” In re C.K.G., 173 S.W.3d 714, 722 (Tenn.
2005)(citation omitted), we conclude that Appellant was required to provide a HIPAA-
compliant authorization.

              Whether Appellant’s authorization was substantially compliant

       Having concluded that Appellant was required to provide a HIPAA-compliant
authorization, we next determine whether the medical authorization provided by
Appellant substantially complied with the requirements of Tennessee Code Annotated
section 29-26-121(a)(2)(E).

       Tennessee Code Annotated section 29-26-121(a)(2)(E) provides that a plaintiff
“shall” include in the pre-suit notice a “HIPAA compliant medical authorization
permitting the provider receiving the notice to obtain complete medical records from each
other provider being sent a notice.” Federal regulations state that a HIPAA-compliant
authorization must include the following six elements:

      (i) A description of the information to be used or disclosed that identifies
      the information in a specific and meaningful fashion.

      (ii) The name or other specific identification of the person(s), or class of
      persons, authorized to make the requested use or disclosure.

      (iii) The name or other specific identification of the person(s) or class of
      persons, to whom the covered entity may make the requested use or
      disclosure.

      (iv) A description of each purpose of the requested use or disclosure….

      (v) An expiration date or an expiration event that relates to the individual or
      the purpose of the use or disclosure….
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       (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 circuit court found that Appellant‟s authorization was “not HIPAA compliant
and did not substantially comply” with section 29-26-121(a)(2)(E) because it “did not
include a description of the information to be used” and “also failed to specifically
identify which health care providers were authorized to make the requested disclosures.”
The court further found that Appellee was prejudiced by Appellant‟s “deficient
authorizations” because without a HIPAA-compliant authorization, Appellee would not
be allowed to “use the decedent‟s records to prepare a defense to [Appellant‟s] claims.”

       Our review of the record reveals that Appellant left blank the portion of the
authorization form describing the type and amount of information to be used. Appellant
argues that the accompanying notice letter authorized Appellee to fill in the blank with
the necessary information. There are two problems with Appellant‟s argument. First,
nothing in the notice letter explicitly authorizes Appellee to make any additions or
changes to the authorization. The only portion of the letter that references the
authorization form merely states that “[a] HIPAA-compliant medical authorization,
permitting you and any other provider receiving the notice to obtain complete medical
records from each other provider being sent this notice, is attached.” The form also
indicates that “[t]his potential claim concerns the medical and psychiatric treatment and
care that [Appellee] rendered to [Decedent]…prior to and up to [Decedent‟s suicide]….”
Without more, we cannot agree that the notice letter authorized Appellee to fill in the
blank.

        The second problem with Appellant‟s argument is that “Plaintiff[s]––not
Defendants––[are] responsible for complying with the requirements of” section 29-26-
121(a)(2)(E). Roberts v. Prill, No. E2013-02202-COA-R3-CV, 2014 WL 2921930 at *6
(Tenn. Ct. App. June 26, 2014) (no perm. app. filed) (quoting Stevens v. Hickman Cmty.
Health Care, Inc., 418 S.W.3d 547, 559 (Tenn. 2013)). As previously discussed, 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.” Stevens, 418 S.W.3d at 555. “[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.” Id. at 555 (citing 45 C.F.R. §
164.508(a)(1)). In addition, federal regulations state that “[a]n authorization is not valid”
if “[t]he authorization has not been filled out completely, with respect to an element
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described by paragraph (c) of this section….” 45 C.F.R. § 164.508(b)(2)(ii).
Appellant‟s form left blank a core element and therefore failed to provide Appellee with
the proper authorization to use Decedent‟s medical records to mount a defense. With
these considerations in mind, we conclude that Appellant failed to substantially comply
with section 29-26-121(a)(2)(E) and has not offered a valid reason to excuse her non-
compliance. Discerning no error, we affirm the decision of the circuit court.

                                      CONCLUSION

       For these reasons, we affirm the order of the circuit court. Costs of this appeal are
taxed to the appellant, Deborah Bray and her surety, for which execution may issue if
necessary.



                                                 _________________________________
                                                 BRANDON O. GIBSON, JUDGE




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