                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                 AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                     ERIKA JACOBS, Plaintiff/Appellant,

                                        v.

MARICOPA INTEGRATED HEALTH CARE SYSTEM, Defendant/Appellee.

                             No. 1 CA-CV 18-0277
                               FILED 2-26-2019


           Appeal from the Superior Court in Maricopa County
                          No. CV2018-050917
                 The Honorable John R. Hannah, Judge

                                  AFFIRMED


                                   COUNSEL

Erika Jacobs, Norman, Oklahoma
Plaintiff/Appellant

Campbell, Yost, Clare & Norell, P.C., Phoenix
By Sigurds M. Krolls, Rachel Anna DePena, Kevin R. Myer
Counsel for Defendant/Appellee
                            JACOBS v. MIHCS
                           Decision of the Court




                      MEMORANDUM DECISION

Presiding Judge Lawrence F. Winthrop delivered the decision of the Court,
in which Judge Maria Elena Cruz and Judge Kenton D. Jones joined.


W I N T H R O P, Judge:

¶1          Erika Jacobs appeals the superior court’s dismissal of her
complaint against Maricopa Integrated Health Care System (“MIHCS”) for
defamation. For the following reasons, we affirm.

                FACTS AND PROCEDURAL HISTORY

¶2             On June 11, 2017, Jacobs was admitted to MIHCS due to
“pains in the lower extremities.” She stayed at the hospital overnight but
left the next day—against medical advice—because she was “dissatisfied
with their service.” Upon reviewing the discharge summary in her medical
records, Jacobs noticed two comments made by Dr. Koruon Daldalyan that
she believed to be untruthful. One comment stated Jacobs exhibited “odd
behavior” during her stay; the other stated Jacobs was a “poor historian” of
her medical history. Jacobs believed these statements were a form of
retaliation because she expressed her dissatisfaction with the staff before
leaving MIHCS. She sought assistance from the medical administration to
get the statements removed from her record, and a staff member directed
Jacobs to file a complaint with the hospital’s medical records department.

¶3            Jacobs filed her complaint on a pre-printed form entitled
“Request To Amend Protected Health Information.” The staff member told
Jacobs she would receive a response in thirty days. When Jacobs did not
hear back after thirty days, she sent another complaint via certified mail in
August 2017.1

¶4            MIHCS responded to the second complaint letter in
December 2017 notifying Jacobs that it would not remove Dr. Daldalyan’s
statements. MIHCS further instructed Jacobs that, if she was still
dissatisfied with the result of her complaint, she could “contact the Privacy
Officer of Maricopa Integrated Health System regarding [her] complaint[]


1     This letter is not part of the record on appeal.


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                            Decision of the Court

. . . [or] file a complaint with The Secretary of the U.S. Department of Health
and Human Services within 180 days of the date of [her] request.” After
receiving MIHCS’ response, Jacobs filed a claim with the U.S. Department
of Health and Human Services (“HHS”), and she initiated this lawsuit in
January 2018.

¶5            Jacobs alleged in the complaint that Dr. Daldalyan engaged in
defamatory conduct and violated the Health Insurance Portability and
Accountability Act of 1996 (“HIPAA”) when he included the “untruthful
information” in her medical records. She also alleged the comments
damaged her reputation because it created an inference to her subsequent
treating physicians that she is “untruthful” and suffers from “mental
issue[s],” and demanded judgment in the amount of $5,000. MIHCS filed a
motion to dismiss the complaint pursuant to Arizona Rule of Civil
Procedure (“Rule”) 12(b)(6), arguing that, as a non-jural public entity,
MIHCS could neither sue nor be sued in its own name, and that Jacobs’
claims were barred by the notice of claims statute, Arizona Revised Statutes
(“A.R.S.”) section 12-821.01(A). The superior court granted the motion to
dismiss, and Jacobs timely appealed.2

¶6            We have jurisdiction pursuant to A.R.S. § 12-2101(A)(1).

                                ANALYSIS3

¶7             We review de novo the dismissal of a complaint for failure to
state a claim upon which relief can be granted under Rule 12(b)(6). Coleman
v. City of Mesa, 230 Ariz. 352, 355, ¶ 7 (2012). When adjudicating a Rule
12(b)(6) motion to dismiss, trial courts consider only the well-pled factual
allegations contained in the pleadings. Id. at 356, ¶ 9. Dismissal under the
rule is appropriate if, as a matter of law, the plaintiff would not be entitled
to relief under any interpretation of the facts. Id. at ¶ 8.

¶8           Section 12-821.01(A) requires a plaintiff who wishes to bring
an action against a public entity to file a notice of claim with the entity


2      The superior court did not rule on the non-jural entity status defense
raised by MIHCS, and appellee does not raise the issue on appeal;
accordingly, we do not address it further. See ARCAP 13(b)(2).

3     In addition to the arguments set forth herein, Jacobs asserts that the
superior court violated her Seventh Amendment rights. She provides no
argument for her statement, and we therefore do not address it on appeal.
See ARCAP 13(a)(6)-(7).


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                            Decision of the Court

“within one hundred eighty days after the cause of action accrues.” Strict
compliance with § 12-821.01(A) is generally required. See Falcon ex rel.
Sandoval v. Maricopa Cty., 213 Ariz. 525, 527, ¶ 10 (2006) (“Actual notice and
substantial compliance do not excuse failure to comply with the statutory
requirements.”).

       I.     Jacobs’ 2017 Letters Did Not Comply with the Notice of Claim
              Requirement

¶9            Jacobs argues that both the request to amend her medical
information and the letter sent in August 2017 satisfy the notice of claim
requirement. MIHCS argues both documents are insufficient to satisfy the
statutory requirement because she did not include language about a legal
claim against MIHCS or a request to settle for a certain sum of money.

¶10              Section 12-821.01(A) requires a person pursuing a claim
against a public entity to submit a notice of claim that contains facts
sufficient to permit the public entity to understand the basis upon which
liability is claimed and a specific amount for which the claim can be settled.
Deer Valley Unified Sch. Dist. No. 97 v. Houser, 214 Ariz. 293, 295, ¶ 6 (2007).
In Deer Valley, our Supreme Court ruled that the plaintiff did not file a valid
notice of claim because she “fail[ed] to state a specific amount that she
would accept to settle her claims.” Id. at 297, 299, ¶¶ 11, 23. The court
explained, “the Legislature intended the 1994 [statutory] changes to
establish specific requirements that must be met for a claimant to file a valid
claim,” and therefore, “[c]laims that do not comply with A.R.S. § 12-
821.01.A are statutorily barred.” Id. at 295, 299, ¶¶ 6, 21.

¶11          Here, we agree with MIHCS that Jacobs failed to comply with
the requirements of § 12-821.01(A). Her June 12, 2017 record-modification
request did not include any language of a potential legal claim or specify a
settlement amount.4 Likewise, her alleged letter sent August 2017 is


4      Since the superior court complaint ultimately alleged monetary
damages, Jacobs was required to quantify her damages claim and identify
an amount she would accept to settle the dispute. Compare Yahweh v. City
of Phoenix, 243 Ariz. 21, 23, ¶ 12 (App. 2017) (holding strict compliance with
§ 12-821.01(A) applies when a plaintiff seeks monetary damages against a
public entity), with State v. Mabery Ranch, Co., L.L.C., 216 Ariz. 233, 245,
¶¶ 52-53 (App. 2007) (holding § 12-821.01(A) does not apply when “a
private party seeks an injunction restraining conduct by a public entity”),
and Martineau v. Maricopa Cty., 207 Ariz. 332, 337, ¶ 25 (App. 2004) (holding



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                            Decision of the Court

insufficient to satisfy § 12-821.01(A). Although Jacobs characterized the
letter as a “notice of claim” in her complaint and opening brief, the letter is
not in the record and Jacobs offers no details as to the language of the
letter—such as the amount of the settlement offer included in the letter or
the specific facts she included that put MIHCS on notice of her claim. In
short, even construing the facts in a light most favorable to her legal theory,
Jacobs has failed to show that she complied with the statutory requirements
of § 12-821.01(A) and that she is entitled to relief as a matter of law.

       II.    Jacobs Did Not State a Claim for Relief Under Federal Law

¶12            Jacobs argues in the alternative that a notice of claim was not
needed because her claim arises out of a federal law. Jacobs cites to the
Arizona Attorney General’s handbook in support of her argument. The
handbook states, “[a] notice of claim is not required for claims arising under
federal law, whether suit is to be filed in federal or state court.” Ariz.
Attorney Gen. Agency Handbook, Chapter 13, § 13.5.1.6 (Rev. 2018).
MIHCS asserts Jacobs’ claim does not arise out of federal law, and she
erroneously relies on laws inapplicable to “privacy-based torts” to avoid
the notice of claim requirement.

¶13             A plaintiff’s claim “arises under federal law” if the federal law
itself creates a cause of action or if a substantial question of federal law is a
necessary element of the cause of action. Niagra Mohawk Power Corp. v.
Tonawanda Band of Seneca Indians, 862 F.Supp. 995, 999 (W.D.N.Y. 1994)
(internal citation omitted). If a plaintiff wants to assert a cause of action
under federal law, it must be discernible on the face of the complaint.
Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987) (“[T]he plaintiff [is] the
master of the claim; he or she may avoid federal jurisdiction by exclusive
reliance on state law.”). Furthermore, a substantial question of federal law
is created only if the plaintiff’s complaint “necessarily draws into question
the interpretation or application of [a] federal law.” Niagra Mohawk Power
Corp., 862 F.Supp. at 999 (internal quotation omitted).

¶14          On appeal, Jacobs asserts her claim arose from Dr.
Daldalyan’s violation of HIPAA, the federal law that forbids the
documentation of false information on a patient’s medical records. Yet, in
her complaint, Jacobs only asserted a state law defamation claim—and
simply alluded to a HIPAA violation. More importantly, HIPAA does not


§ 12-821.01(A) does not apply when the complaint seeks a declaratory
judgment to invalidate a public entity’s policy).



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                              JACOBS v. MIHCS
                             Decision of the Court

create a private right of action for an individual plaintiff, so Jacobs could
not have used that law as a basis for bringing any claim in state or federal
court.5 Webb v. Smart Document Sol., LLC, 499 F.3d 1078, 1083 (9th Cir. 2007).
Indeed, Jacobs states on appeal that she filed a claim with HHS, but she
does not clarify whether HHS decided to pursue the claim on her behalf.
Because Jacobs neither asserted a claim under HIPPA nor could have done
so, her assertion that she did not have to comply with § 12-821.01(A) fails
as a matter of law.

       III.   Costs on Appeal

¶15          MIHCS requests this court award “its taxable costs.”
However, MIHCS does not specify whether it seeks costs on appeal or costs
for defending the claim in its entirety.

¶16           Although A.R.S. § 12-341 mandates a trial court award costs
to the “successful party” in a civil action, the trial court has great discretion
in determining the “successful party.” Democratic Party of Pima Cty., v. Ford,
228 Ariz. 545, 549, ¶ 15 (App. 2012). Here, the superior court dismissed
Jacobs’ complaint with prejudice but did not award MIHCS its costs or
determine it as the “successful party.” Therefore, we will not award
MIHCS its costs for defending the action in superior court. Nonetheless, as
the prevailing party in this appeal, MIHCS is entitled to recover its
appellate costs, and we award those costs upon its compliance with Arizona
Rule of Civil Appellate Procedure 21. Henry v. Cook, 189 Ariz. 42, 43-44
(App. 1996).

                                CONCLUSION

¶17           For the foregoing reasons, the superior court’s judgment is
affirmed.




                          AMY M. WOOD • Clerk of the Court
                           FILED: AA


5      HIPAA is enforced by HHS. Acara v. Banks, 470 F.3d 569, 571 (5th
Cir. 2006). A person who feels their rights have been violated under HIPAA
may file a claim with HHS, and the department then has the option to
pursue legal recourse on the victim’s behalf. Id.


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