                                                                                               07/09/2018
                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                  January 16, 2018 Session

           ERNEST SMITH V. WELLMONT HEALTH SYSTEM ET AL. 1

            Interlocutory Appeal from the Law Court for Sullivan County
                       No. C41513 (C)     E. G. Moody, Judge
                             ___________________________________

                               No. E2017-00850-COA-R9-CV
                             ___________________________________

This interlocutory appeal involves a health care liability action. Plaintiff gave potential
defendants written notice of his malpractice claim. See Tenn. Code Ann. § 29-26-121(c).
Plaintiff then filed his complaint. In doing so, he relied upon a 120-day extension of the
one year statute of limitations as provided for in § 29-26-121(c). Each defendant moved
to dismiss the plaintiff’s complaint. By an order entered April 1, 2015, the trial court
granted the joint motion to dismiss of three of the defendants. The court’s order
concluded that plaintiff’s complaint was time-barred. Plaintiff did not appeal the court’s
judgment and, with the passage of time, it became final. Meanwhile, the motions to
dismiss of the other defendants, all of which were essentially based upon the same
ground as that of the joint motion of the dismissed defendants, were awaiting resolution
by the trial court. Before this could happen, however, the plaintiff voluntarily dismissed
his complaint. Nine months later, plaintiff sent a new pre-suit notice. Four months after
that, plaintiff filed a second health care liability action against the same defendants,
including those dismissed by the trial court in its April 1, 2015 order. All defendants
again moved to dismiss the complaint. The trial court denied the motions. Later, the trial
court decided that its April 1, 2015 dismissal order was incorrect. It concluded that
plaintiff’s first complaint was not time-barred because, according to the court, plaintiff
provided proper pre-suit notice. On the defendants’ further motions, the court granted
them permission to pursue an interlocutory appeal pursuant to the provisions of Tenn. R.
App. P. 9. We did likewise. We now reverse the judgment of the trial court denying
defendants’ motions to dismiss.




       1
       Because of some common issues, this case was consolidated with the case of Roberts v.
Wellmont Health System et al., E2017-00845-COA-R9-CV for the sole purpose of oral argument.

                                                -1-
            Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Law Court
                       Reversed; Case Remanded with Instructions

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, Dr.
Remiguisz Jan Switalski, Christopher Anthony Neglia, DO and Holston Medical Group,
P.C.

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

Kyle E. Hedrick, Chattanooga, Tennessee, for the appellant, Life Care Centers of
America, Inc., dba Life Care Center of Greeneville.

George Todd East, Kingsport, Tennessee, for the appellee, Ernest Smith.


                                              OPINION

                                                   I.

       The facts that prompted this litigation occurred in late January 2013 and early
February 2013. Plaintiff provided pre-suit notice of his health care liability claim to a
number of potential defendants2 on January 23, 2014. On May 30, 2014, plaintiff filed his
complaint. On July 9, 2014, Dr. Remiguisz Jan Switalski, Dr. Christopher Anthony
Neglia, and Holston Medical Group P.C., filed a joint motion to dismiss the complaint on
the ground that plaintiff had failed to comply with the pre-suit notice mandates of Tenn.
Code Ann. § 29-26-121. Motions to dismiss on the same ground were filed by Wellmont
Health System, on July 9, 2014, and by Life Care Centers of America, Inc., on August
18, 2014.

       On December 12, 2014, the trial court heard oral argument on defendants’ motions
to dismiss. On April 1, 2015, the trial court entered an order granting the joint motion of
Dr. Switalski, Dr. Neglia, and Holston Medical Group. Later, the plaintiff voluntarily
nonsuited his complaint with respect to remaining defendants. On April 8, 2015, the court
entered an order confirming plaintiff’s nonsuit as to these remaining defendants.


        2
         A few of the recipients of notice were eventually dismissed. Since they are not involved in this
Rule 9 appeal, we will not mention them by name or otherwise discuss the claims against them.

                                                   -2-
       On January 12, 2016, plaintiff provided pre-suit notice of its intent to file a second
health care liability action. On May 9, 2016, the second complaint was filed. Each
defendant moved to dismiss the complaint. On November 15, 2016, the trial court heard
oral arguments. The trial court took the matter under advisement and requested proposed
orders from defendants. The trial court stated it would allow plaintiff to respond.
Proposed orders were submitted. On January 9, 2017, the trial court entered an order
denying defendants’ motions to dismiss. The trial court’s findings included that:

              The medical authorizations that the Plaintiff served on the
              Defendants…was sufficient although it did not specify who
              was authorized to release records; it did not specify to whom
              the records could be released and it did not specify an
              expiration date. The Plaintiff attached the medical
              authorization to a letter…he sent to the Defendants in which
              he explained that they could use the authorizations to get the
              records of the other Defendants and he invited them to
              contact him if they had any questions.

              The Plaintiff explained that the procedure it followed was and
              has been the customary practice and manner in which to
              provide medical authorizations in the 2nd Judicial District for
              many years. The Court agrees that it has been the custom,
              based on its 35 years of personal injury practice and 10 years
              of judicial experience; therefore, the Court finds that the
              Plaintiff, not only substantially complied with the
              requirements of T.C.A. §29-26-121, but that it exceeded
              them.

                                       *      *      *

              The reason the authorization did not specify who was
              authorized to release the records and the reason the
              authorization did not specify who was authorized to receive
              them was so that the Defendants could fill in that information
              in the blanks provided and so that they could obtain all
              medical records of the Plaintiff from all sources, not just from
              the other Defendants, and not limited to the records of the
              incident in question which is why the custom developed.

The trial court, in its order, changed its prior order stating that plaintiff’s case was time-
barred as to Dr. Switalski, Dr. Neglia, and Holston Medical Group. The trial court held
that even if plaintiff did not substantially comply with Tenn. Code Ann. § 29-26-121, its
non-compliance is excused by extraordinary cause. The trial court further found that

                                             -3-
              [t]he Defendants have failed to take any steps toward
              obtaining the medical records, therefore, they have forfeited
              any claim of actual prejudice but instead they only sought a
              dismissal which is contrary to the statutory goal of facilitating
              a timely evaluation of the merits of the claim in order to
              promote a potential settlement before the suit is filed in court.

              The Court further finds that none of the Defendants have
              demonstrated any actual prejudice if there are any
              deficiencies in the medical authorization.

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:

              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 complaint [sic], and equate
              the 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.

The trial court further requested this Court’s guidance in regard to:

              Whether it was appropriate for the trial court to overrule its
              prior Order holding that the plaintiff failed to substantially
              comply with the requirements of Tennessee Code Annotated
              § 29-26-121(a)(2)(E) twenty-one (21) months after the Order
              was entered and following the filing of a new action.

                                             -4-
Defendants raise an additional issue not certified by the court order.3 We have no
jurisdiction to consider an uncertified issue. Hence, we cannot consider it on this appeal.

                                                  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
                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 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.
                                          *      *      *

                “[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

        3
          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.

                                                   -5-
             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)). We review the trial court's decision to excuse compliance under an abuse
of discretion standard. “A court abuses its discretion when it applies an incorrect legal
standard or its decision is illogical or unreasonable, is based on a clearly erroneous
assessment of the evidence, or utilizes reasoning that results in an injustice to the
complaining party.” Myers, 382 S.W.3d at 308.

       This case involves statutory interpretations, which are a matter of law. We review
such issues with no presumption of correctness accorded to the trial court:

             [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
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

                                            -6-
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, the Supreme Court stated as follows:

              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).

        Turning to the facts of this case, the medical authorizations sent with plaintiff’s
first pre-suit notice failed to contain three of the core elements mandated by 45 C.F.R. §
164.508(c). The trial court concluded that local custom sufficed as extraordinary cause to
excuse the omissions.4 Plaintiff argues that any challenge to the trial court taking of
judicial notice based on a local custom was waived by defendants. This argument misses


       4
          Interestingly enough, counsel for Roberts at oral argument, in which the Smith case was
consolidated, acknowledged that this judicially-noticed custom of leaving blanks in a medical
authorization is the only thing rendering the authorizations HIPAA compliant.

                                               -7-
the point. The problem lies not in the taking of judicial notice,5 but in the contention that
the judicially-noticed custom rises to the level of extraordinary cause to excuse
compliance.

       Contrary to the assumed local practice in the Second District, the pertinent
statutory scheme requires that a HIPAA-compliant medical authorization be with the 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). The local practice of
leaving blanks in a medical authorization does not satisfy the aforesaid statutory scheme.
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, without more, 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 cause to excuse a plaintiff’s noncompliance with Tenn. Code Ann. § 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, stated that:

                The reason the authorization did not specify who was
                authorized to release the records and the reason the
                authorization did not specify who was authorized to receive
                them was so that the Defendants could fill in that information
                in the blanks provided and so that they could obtain all
                medical records of the Plaintiff from all sources, not just from
                the other Defendants, and not limited to the records of the
                incident in question which is why the custom developed.

       “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,


        5
          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.

                                                    -8-
with respect to an element described by paragraph (c) of this section.” 45 C.F.R. §
164.508(b)(2). Defendants argue

             [t]he clear 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 partially completed by a patient or patient’s
             representative.
We agree.

       This Court has previously held that a defendant is not responsible for filling in
blanks on medical authorizations submitted as part of pre-suit notice. In J.A.C. by &
through Carter v. Methodist Healthcare Memphis Hosps., 542 S.W.3d 502, 515–16
(Tenn. Ct. App. 2016), appeal denied (Mar. 9, 2017), 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
             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.

                                           -9-
J.A.C. by & through Carter v. Methodist Healthcare Memphis Hosps., 542 S.W.3d 502,
515–16 (Tenn. Ct. App. 2016), appeal denied (Mar. 9, 2017) (internal citations omitted).

       Accordingly, we continue to maintain that third parties are not permitted to alter or
modify a medical authorization after it has been executed by a patient or patient’s
authorized representative.

                                            VI.

       The trial court held that:

              Defendants have failed to take any steps toward obtaining the
              medical records, therefore, they have forfeited any claim of
              actual prejudice but instead they only sought a dismissal
              which is contrary to the statutory goal of facilitating a timely
              evaluation of the merits of the claim in order to promote a
              potential settlement before the suit is filed in court.

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,
No. E2013-02202-COA-R3CV, 2014 WL 2921930, at *6 (Tenn. Ct. App. June 26, 2014).
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,
              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

                                            -10-
              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. by & through Carter v. Methodist Healthcare Memphis Hosps., 542 S.W.3d 502,
514–15 (Tenn. Ct. App. 2016), appeal denied (Mar. 9, 2017).

       Defendants are not required to use a medical authorization to gather a patient’s
medical records, if the authorization is not compliant with HIPAA. 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.

        The final issue emanates from the effort of the trial court to overrule an order from
the first lawsuit approximately twenty-one (21) months after its entry. The court
acknowledged that it did this even though “Plaintiff did not appeal the Order or file a
motion for reconsideration.” In doing so, the court permitted the resurrection of a case
against three parties it had previously dismissed. Our guidance has been requested by the
trial court as to whether or not this course of action was permissible. For the following
reasons, we hold it is not.

       The viability of plaintiff’s second lawsuit hinges upon whether or not his pre-suit
notice in the first lawsuit was as statutorily mandated. The trial court, in an order
dismissing the three defendants in the first lawsuit, held that it was not. The court held
that because the pre-suit notice was not legally adequate, the plaintiff was not entitled to
the 120-day extension, and hence his complaint was barred by the statute of limitations.
Plaintiff made no attempt to appeal. Plaintiff chose to voluntarily dismiss the remaining
defendants before the court ruled on the remaining motions to dismiss.

      The trial court should not have allowed plaintiff to re-litigate this issue in the
second-filed lawsuit between the same parties. The trial court erred when it did. Plaintiff
was estopped from so doing. Plaintiff does not get a mulligan. The trial court’s
subsequent order overruling itself was therefore produced in error as well.




                                            -11-
                                           VIII.

       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, Ernest Smith.


                                          _______________________________
                                          CHARLES D. SUSANO, JR., JUDGE




                                            -12-
