IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

May 14, 2014 Session

DIANA ROBERTS, ET. AL. V. SUE PRILL, M.D., ET. AL.

Appeal from the Law Court for Sullivan County (Bristol)

No. C14457M Hon. John S. McLellan, III, Judge

No. E2013-02202-COA-R3-CV-FILED-JUNE 26, 2014

This is a health care liability action arising from the death of Decedent. Defendants moved

1

to dismiss the action for failure to comply with the notice requirements set out in Tennessee

Code Annotated section 29-26-121(a)(2)(E). The trial court agreed and dismissed the action

without prejudice. Plaintiff appeals the dismissal to this court. We affirm the trial court’s

dismissal.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Law Court

Affirmed; Case Remanded

JOHN W. MCCLARTY, J., delivered the opinion of the Court, in which CHARLES D. SUSANO,

JR., C.J., and D. MICHAEL SWINEY, J., joined.

Robert P. Starnes, Kingsport, Tennessee, for the appellants, Diana Roberts, individually and

as administratix of the Estate of Stanley Roberts.

Charles T. Herndon, IV and Elizabeth Hutton, Johnson City, Tennessee, for the appellees,

Sue Prill, M.D. and Blue Ridge Medical Specialists, P.C.

Tennessee Code Annotated section 29-26-101 now defines most all cases occurring in a medical context 1

as “health care liability actions.” The statute specifies that such an action “means any civil action, including

claims against the state or a political subdivision thereof, alleging that a health care provider or providers

have caused an injury related to the provision of, or failure to provide, health care services to a person,

regardless of the theory of liability, on which the action is based.” See Acts 2011, ch. 510, § 8. Effective

April 23, 2012, the term “health care liability” replaced “medical malpractice” in the Code. See Acts 2012,

ch. 798.
OPINION

I. BACKGROUND

On October 11, 2011, Stanley Roberts (“Decedent”) passed away as a result of lung

cancer that had metastasized to his spine and liver. Prior to his death, Decedent received

treatment from Sue Prill, M.D., an oncologist employed by Blue Ridge Medical Specialists,

P.C. (“Blue Ridge”). On December 11, 2012, Diana Roberts, individually and as

administratix of Decedent’s estate (collectively “Plaintiff”), filed suit against Dr. Prill and

Blue Ridge (collectively “Defendants”) in an attempt to recover for Decedent’s pain and

suffering and her emotional distress. Plaintiff acknowledged that Decedent suffered from

an incurable condition but asserted that Dr. Prill committed medical malpractice by failing

to provide pain relief to Decedent. She also personally sought recovery pursuant to the

theory of negligent infliction of emotional distress (“NIED”) based upon the emotional

distress she experienced while witnessing Decedent’s suffering.

Plaintiff filed the complaint pursuant to the Tennessee Medical Malpractice Act

(“TMMA”), which sets forth specific notice requirements for health care liability actions.

Complaints filed pursuant to the TMMA are subject to a one-year statute of limitations.

Tenn. Code Ann. § 29-26-116(a). However, when notice is provided pursuant to section 29-

26-121, “the applicable statute of limitations and repose shall be extended for a period of one

hundred twenty days.” Tenn. Code Ann. § 29-26-121(c). Pursuant to the TMMA, Plaintiff

was required to file pre-suit notice 60 days prior to filing suit and was also required to attach

a certificate of good faith and a copy of the pre-suit notice with relevant documentation to

the actual complaint. Tenn. Code Ann. §§ 29-26-121(a), -122.

Plaintiff filed pre-suit notice 60 days prior to filing suit. She attached a certificate of

good faith to her complaint but failed to attach a copy of the pre-suit notice to the complaint

asrequired by section 29-26-121(b). Defendants sought the dismissal of the lawsuit, alleging

that Plaintiff had failed to comply with section 29-26-121(a)(b) by failing to attach a copy

of the notice to the complaint and section 29-26-121(a)(2)(E) by filing an incomplete HIPAA

medical authorization form. Defendants further alleged that Plaintiff’s NIED claim was

without merit. The trial court held that Plaintiff was not entitled to the extension of the

statute of limitations pursuant to section 29-26-121(c). The court found that the HIPAA form

was deficient pursuant to section 29-26-121(a)(2)(E) and that she had failed to provide the

proper documentation with her complaint pursuant to section 29-26-121(b). The court also

held that the NIED claim was without merit. This timely appeal followed.

-2-
II. ISSUES

We restate the issues raised on appeal by Plaintiff as follows:

A. Whether Plaintiff substantially complied with Tennessee Code Annotated

section 29-26-121(a).

B. Whether Plaintiff substantially complied with Tennessee Code Annotated

section 29-26-121(b).

C. Whether the trial court abused its discretion by failing to excuse

compliance pursuant to Tennessee Code Annotated section 29-26-121(b).

D. Whether Plaintiff may progress with the NIED claim as a health care

liability action, assuming she complied with Tennessee Code Annotated

sections 29-26-121(a)-(b).

E. Whether Plaintiff may progress with the NIED claim pursuant to the twoyear statute of limitations for such claims in Virginia.

III. STANDARD OF REVIEW

In this action, Defendants 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

provided as follows:

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.

-3-
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).

“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 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).

This appeal also involves the interpretation of statutes. Statutory construction is a

question of law that is reviewed de novo without any presumption of correctness. In re

Estate of Tanner, 295 S.W.3d 610, 613 (Tenn. 2009). This court’s primary objective is to

carry out legislative intent without broadening or restricting the Act beyond its intended

scope. Houghton v. Aramark Educ. Res., Inc., 90 S.W.3d 676, 678 (Tenn. 2002). In

construing legislative enactments, we presume that every word in a statute has meaning and

purpose and should be given full effect if the obvious intention of the legislature is not

violated by so doing. 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).

IV. DISCUSSION

A. & B.

Plaintiff concedes that without the extension of the statute of limitations pursuant to

Tennessee Code Annotated section 29-26-121(c), her complaint was untimely. She asserts

that the trial court erred in dismissing her complaint as untimely because she was entitled to

the extension of the statute of limitations when she complied with section 29-26-

121(a)(2)(E). She asserts that her HIPAA medical authorization form was sufficient but

-4-
acknowledges that she failed to attach a copy of the pre-suit notice to the complaint.

Defendants respond that the trial court did not err in dismissing her complaint as untimely.

As to notice before the suit, the TMMA provides, in pertinent part,

(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 (60) days

before the filing of a complaint based upon health care liability in any court of

this state.

(2) The notice shall include:

(A) The full name and date of birth of the patient whose

treatment is at issue;

(B) The name and address of the claimant authorizing the notice

and the relationship to the patient, if the notice is not sent by the

patient;

(C) The name and address of the attorney sending the notice, if

applicable;

(D) A list of the name and address of all providers being sent a

notice; and

(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.

(3) The requirement of service of written notice prior to suit is deemed

satisfied if, within the statutes of limitations and statutes of repose applicable

to the provider, one of the following occurs, as established by the specified

proof of service, which shall be filed with the complaint:

(A) Personal delivery of the notice to the health care provider or

an identified individual whose job function includesreceptionist

for deliveries to the provider or for arrival of the provider’s

patients at the provider’s current practice location. Delivery

must be established by an affidavit stating that the notice was

-5-
personally delivered and the identity of the individual to whom

the notice was delivered; or

* * *

(b) If a complaint is filed in any court alleging a claim for health care liability,

the pleadings shall state whether each party has complied with subsection (a)

and shall provide the documentation specified in subdivision (a)(2). The court

may require additional evidence of compliance to determine if the provisions

of this section have been met. The court has discretion to excuse compliance

with this section only for extraordinary cause shown.

Tenn. Code Ann. § 29-26-121(a)-(b).

In Myers, a case involving a re-filed complaint, the Tennessee Supreme Court ruled

that the statutory requirements that a plaintiff give 60 days pre-suit notice and attach a

certificate of good faith to the complaint were mandatory and not subject to substantial

compliance. 382 S.W.3d at 310. The Court held that the re-filed action commenced pursuant

to the saving statute was a new action governed by the statutory provisions in sections 29-26-

121 and 122. However, the Court also held that “the legislature did not expressly provide

for the consequence of dismissal with prejudice as it did in [] section 29-26-122.” Id. at 312.

Indeed, the Court refrained from addressing the “appropriate sanction” for failure to comply

with section 29-26-121 because plaintiff had also failed to comply with the certification

requirements, which mandated dismissal. Id.

Since that time, the Court has finally addressed the appropriate sanction for failure to

comply with section 29-26-121(a). Stevens v. Hickman Cmty. Health Care, Inc., 418 S.W.3d

547, 559-60 (Tenn. Nov. 25, 2013). In Stevens, plaintiff filed the required 60-day pre-suit

notice but failed to include a HIPAA compliant medical authorization form. Id. 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 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,

-6-
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. The Court denied any relief based upon extraordinary cause before discussing the

consequences of plaintiff’s failure to comply with section 29-26-121(a)(2). The Court

acknowledged that section 29-26-121 provided no “explicit penalty or consequence” for

failure to comply with its terms but ultimately held that dismissal of plaintiff’s case without

prejudice was the appropriate penalty. Id. at 559-60. In so holding, the Court acknowledged

but declined to address the fact that its dismissal without prejudice operated as a dismissal

with prejudice because any future claim would be time-barred. Id. at 560.

Turning to the case at hand, we must determine whether the HIPAA medical

authorization form provided by Plaintiff substantially complied with the requirements of

Tennessee Code Annotated section 29-26-121(a)(2)(E). “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. . . .

(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

-7-
authority to act for the individual must also be provided.’”

Stevens, 418 S.W.3d at 555-56 (quoting 45 C.F.R. § 164.508(c)(1)).

The form provided by Plaintiff failed to specifically identify “the person(s) or class

of persons authorized to make the requested use or disclosure” and “the person(s), or class

of persons, to whom the covered entity may make the requested use or disclosure.”

Specifically, the form only permitted the use or disclosure of the medical records by

Plaintiff’s counsel. Additionally, Plaintiff signed the form in her representative capacity but

failed to provide a description of her authority to act for Decedent. Due to Plaintiff’s errors,

Defendants were not legally authorized to use the pertinent medical records to mount a

defense, despite the fact that the records may have already been in their possession. With

these considerations in mind, we conclude that Plaintiff failed to substantially comply with

section 29-26-121(a)(2)(E) and also admittedly failed to comply with section 29-26-121(b).

C.

Having concluded that Plaintiffs failed to comply with sections 29-26-121(a)-(b), we

must address the question of whether the trial court abused its discretion by failing to excuse

compliance. Plaintiffs contend that dismissal was unnecessary when

there [was] no proof in the record of any failed attempt to gain the records of

[Decedent]; where parts of the release were left blank for Defendants[’]

insertion and where there was only one doctor Defendant who would have

already had all the relevant records.

Plaintiff admits that she intentionally left sections of the form blank and anticipated that

Defendants would fill in the form. 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.

Plaintiff’s argument is akin to the argument rejected by the Court in Stevens, namely that

defendants should have informed plaintiff of the errors in the form before filing a motion to

dismiss. As the Court noted in Stevens, “Plaintiff - not Defendants -was responsible for

complying with the requirements of” section 29-26-121(a)(2)(E). 418 S.W.3d at 559.

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.” Id. 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

-8-
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 withoutspecific

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) (emphasis added). Plaintiff’s case did not fall within 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.

With these considerations in mind, we conclude that Plaintiff failed to substantially

comply with section 29-26-121(a)(2)(E) and has failed to offer a valid reason to excuse her

non-compliance. Having so concluded, we need not address whether the trial court should

have excused compliance with section 29-26-121(b). For the foregoing reasons, we affirm

the dismissal of Plaintiffs’ claim without prejudice. In so holding, we acknowledge that any

further claims by Plaintiff will be time-barred.

D.

Having concluded that Plaintiff may not proceed with her NIED claim as a health care

liability action because it was untimely, this issue is pretermitted.

E.

Plaintiff alternatively asserts that if she cannot proceed with her NIED claim as a

health care liability action because it was untimely in Tennessee, then she may proceed with

her claim pursuant to the applicable statute of limitations for such actions in Virginia. This

issue is without merit. See Sherwin-Williams Co. v. Morris, 156 S.W.2d 350, 353 (Tenn. Ct.

App. 1941) (providing that the law of the forum governs matters pertaining to the statute of

limitations).

V. CONCLUSION

The judgment of the trial court is affirmed, and the case is remanded for such further

proceedings as may be necessary. Costs of the appeal are taxed equally to the appellants,

Diana Roberts, individually and as administratix of the Estate of Stanley Roberts.

______________________________________

JOHN W. McCLARTY, JUDGE

-9-