08/01/2017

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

June 20, 2017 Session

TOMMY LYNN LAWSON ET AL. v. 

KNOXVILLE DERMATOLOGY GROUP, P.C. ET AL.

Appeal from the Circuit Court for Knox County

No. 2-389-16 William T. Ailor, Judge

No. E2017-00077-COA-R3-CV

The plaintiffs initiated this health care liability action against two defendant medical 

providers, a dermatology practice and a certified physician’s assistant employed by the 

practice. The defendants filed separate motions to dismiss, with each respectively 

asserting that the plaintiffs’ claims should be dismissed for failure to substantially comply 

with Tennessee Code Annotated § 29-26-121(a)(2)(E), which provides that a pre-suit 

medical authorization must be compliant with the Health Insurance Portability and 

Accountability Act (“HIPAA”). Following a hearing, the trial court dismissed the 

plaintiffs’ claims without prejudice upon finding that the medical authorization forwarded 

by the plaintiffs was incomplete and failed to substantially comply with HIPAA’s release 

requirements. The plaintiffs have appealed solely the dismissal of the health care liability 

claim against the dermatology practice. Discerning no reversible error, we affirm. 

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

Affirmed; Case Remanded

THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which CHARLES D.

SUSANO, JR., and ARNOLD B. GOLDIN, JJ., joined.

Timothy L. Baldridge, Knoxville, Tennessee, for the appellants, Tommy Lynn Lawson 

and Katrina Lawson.

James H. London, Carrie S. O’Rear, and Jeremey R. Goolsby, Knoxville, Tennessee, for 

the appellees, Knoxville Dermatology Group, P.C., and Katie Hageman, PA-C.
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OPINION

I. Factual and Procedural Background

The plaintiffs, Tommy Lynn Lawson and Katrina Lawson, filed a complaint 

against the defendants, Knoxville Dermatology Group (“KDG”) and Katie Hageman,

Certified Physician’s Assistant, (collectively, “Defendants”), on August 23, 2016. The 

complaint involved the events that transpired on April 29, 2015, when Mr. Lawson

sought treatment with KDG for a Methicillin-resistant Staphlococcus aureus (“MRSA”) 

infection on his left ear. The Lawsons alleged that during the visit, Mr. Lawson was

injured by the negligence of KDG and Ms. Hageman, specifically their alleged failure to 

properly secure the examination table, which purportedly flipped over as Mr. Lawson

was attempting to lift himself onto it, resulting in alleged injury when he “f[e]ll straight 

down onto the stool with his left leg underneath him.” Ms. Lawson joined in the 

complaint as a plaintiff, seeking recovery for loss of consortium. 

On October 3, 2016, KDG and Ms. Hageman filed separate motions to dismiss for

failure to comply with provisions of Tennessee Code Annotated § 29-26-121. They 

asserted that the Lawsons’ HIPAA authorization form did not list which individual(s) or 

organization(s) were authorized to make disclosures of the specified medical records. 

See 45 C.F.R. § 164.508 (c)(1). Defendants further alleged that the Lawsons’ action was 

untimely. Tennessee Code Annotated § 29-26-116(a) (2012) provides a one-year statute 

of limitations applicable to health care liability actions, which, with proper pre-suit 

notice, may be extended by 120 days pursuant to Tennessee Code Annotated § 29-26-

121(c) (Supp. 2016). Defendants asserted that because the Lawsons had failed to provide 

sufficient pre-suit notice, they were precluded from relying on the 120-day extension.

Following a hearing, the trial court granted the motions to dismiss in an order 

entered on December 16, 2016, dismissing all claims without prejudice. The Lawsons

timely appealed, limiting the issue raised on appeal to the dismissal of the health care 

liability claim against KDG. The Lawsons have not appealed the dismissal of Ms. 

Hageman as a defendant or the dismissal of Ms. Lawson’s claims for loss of consortium.1 

 

1 We note that as claims arising from the health care liability claims in this action, Ms. Lawson’s claims

for loss of consortium were also governed by the Tennessee Health Care Liability Act. See Igou v. 

Vanderbilt Univ., No. M2013-02837-COA-R3-CV, 2015 WL 1517794, at *7 (Tenn. Ct. App. Mar. 27, 

2015) (“[T]he plain language of the THCLA leads us to the conclusion that Mrs. Igou’s loss of 

consortium claim is a health care liability action under the Act . . . .”).
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II. Issue Presented

The Lawsons present one issue on appeal, which we have restated slightly as 

follows: 

Whether the trial court erred by finding that the medical authorization 

included in the Lawsons’ pre-suit notice to KDG did not substantially 

satisfy the requirements of Tennessee Code Annotated § 29-26-

121(a)(2)(E).

III. Standard of Review 

Our Supreme Court has elucidated the following regarding the standard of review 

applicable to a motion to dismiss a health care liability action based upon the plaintiff’s 

noncompliance with Tennessee Code Annotated § 29-26-121:

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. If the 

plaintiff prevails, the defendant may pursue an interlocutory appeal under 

either Tennessee Rule of Appellate Procedure 9 or 10 using the same 

standards.

Because the trial court’s denial of the Defendants’ motion involves a 

question of law, our review is de novo with no presumption of correctness. 

Graham v. Caples, 325 S.W.3d 578, 581 (Tenn. 2010). The question of 

whether [the plaintiff] has demonstrated extraordinary cause that would 
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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. Starr v. Hill, 353 S.W.3d 478, 481-82 (Tenn. 

2011). 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.” Wilson v. 

State, 367 S.W.3d 229, 235 (Tenn. 2012) (citing Wright ex rel. Wright v. 

Wright, 337 S.W.3d 166, 176 (Tenn. 2011)). We examine the legal 

sufficiency of the complaint and do not consider the strength of the 

plaintiff’s evidence; thus, all factual allegations in the complaint are 

accepted as true and construed in [favor] of the plaintiff. Lind v. Beaman 

Dodge, Inc., 356 S.W.3d 889, 894 (Tenn. 2011).

* * *

The leading rule governing our construction of any statute is to ascertain 

and give effect to the legislature’s intent. Walker v. Sunrise Pontiac-GMC 

Truck, Inc., 249 S.W.3d 301, 309 (Tenn. 2008). To that end, we start with 

an examination of the statute’s language, Curtis v. G.E. Capital Modular 

Space, 155 S.W.3d 877, 881 (Tenn. 2005), presuming that the legislature 

intended that each word be given full effect. Lanier v. Rains, 229 S.W.3d 

656, 661 (Tenn. 2007). When the import of a statute is unambiguous, we 

discern legislative intent “from the natural and ordinary meaning of the 

statutory language within the context of the entire statute without any 

forced or subtle construction that would extend or limit the statute’s 

meaning.” State v. Flemming, 19 S.W.3d 195, 197 (Tenn. 2000); see also 

In re Adoption of A.M.H., 215 S.W.3d 793, 808 (Tenn. 2007) (“Where the 

statutory language is not ambiguous . . . the plain and ordinary meaning of 

the statute must be given effect.”) (citing Calaway ex rel. Calaway v. 

Schucker, 193 S.W.3d 509, 516 (Tenn. 2005)). The construction of a 

statute is also a question of law which we review de novo without any 

presumption of correctness. Lind, 356 S.W.3d at 895.

Myers v. AMISUB (SFH), Inc., 382 S.W.3d 300, 307-08 (Tenn. 2012). 

In Arden v. Kozawa, 466 S.W.3d 758, 763 (Tenn. 2015), our Supreme Court 

clarified:
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The content and affidavit requirements of Tennessee Code 

Annotated sections 29-26-121(a)(2), (a)(3), and (a)(4) are not mandatory, 

but directory, and can be achieved through substantial compliance. See

Thurmond v. Mid-Cumberland Infectious Disease Consultants, PLC, 433 

S.W.3d 512, 520 (Tenn. 2014) (allowing substantial compliance with the 

affidavit requirement under Tennessee Code Annotated sections 29-26-

121(a)(3)(B) and (a)(4)); Stevens ex rel. Stevens v. Hickman Comm. Health 

Care Servs., Inc., 418 S.W.3d 547, 555 (Tenn. 2013) (allowing substantial 

compliance with the HIPAA form requirement under Tennessee Code 

Annotated section 29-26-121(a)(2)(E)). “[U]nless strict compliance with a 

notice content requirement ‘is essential to avoid prejudicing an opposing 

litigant,’ substantial compliance with a content requirement will suffice.” 

Thurmond, 433 S.W.3d at 520 (quoting Stevens, 418 S.W.3d at 555).

IV. Requirements Concerning HIPAA-Compliant Medical Authorization

The Lawsons contend that the trial court erred by finding that they had failed to 

provide a medical authorization that was substantially compliant with HIPAA 

regulations. KDG asserts that the trial court properly dismissed the claim because the 

medical authorization provided by the Lawsons was insufficient to allow KDG to access 

relevant medical records to mount a defense. Upon careful review of the record and 

applicable authorities, we agree with KDG.

The requirements of Tennessee Code Annotated § 29-26-121(a)(2) serve the 

distinct purpose of providing defendants in a health care liability action with notice that 

“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.” See Stevens ex 

rel. Stevens v. Hickman Cmty. Health Care Servs., Inc., 418 S.W.3d 547, 555 (Tenn. 

2013). This statute 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. (Emphasis 

added.)

(2) The notice shall include:

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

is at issue;
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(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.

Tenn. Code Ann. § 29-26-121(a)(2) (emphasis added).

KDG asserts that the trial court properly found that the Lawsons did not 

substantially comply with Tennessee Code Annotated § 29-26-121(a)(2)(E) because they

left blank a core element of the authorization, specifically the section of the form 

provided for designating the name(s) of the person(s) or class of persons authorized to 

make the requested use or disclosure. The Code of Federal Regulations delineates the 

following “core elements,” in relevant part, necessary to a HIPAA-compliant medical 

authorization:

(c)(1) Core elements. A valid authorization under this section must contain 

at least the following 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.
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(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 authority to act for the 

individual must also be provided.

45 C.F.R. § 164.508 (c)(1) (emphasis added).

Our Supreme Court has described the purpose of Tennessee Code Annotated § 29-

26-121(a)(2)(E) as follows:

[T]he purpose of Tenn. Code Ann. § 29-26-121(a)(2)(E) is not to provide 

defendants with notice of a potential claim. Instead, 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 relevant medical 

records. See 45 C.F.R. § 164.508(a)(1) (“a covered entity may not use or 

disclose protected health information without an authorization that is valid 

under this section”). Tenn. Code Ann. § 29-26-121(d)(1) creates a statutory 

entitlement to the records governed by § 29-26-121(a)(2)(E). See Tenn. 

Code Ann. § 29-26-121(d)(1) (“All parties in an action covered by this 

section shall be entitled to obtain complete copies of the claimant’s medical 

records from any other provider receiving notice . . .”) (emphasis added).

Stevens, 418 S.W.3d at 555 (footnote omitted).

It is well established in Tennessee that the purpose of Tennessee Code Annotated 

§ 29-26-121 can be achieved when the plaintiff substantially complies rather than strictly

complies, so long as the defendant is not prejudiced due to the noncompliance. See 

Stevens, 418 S.W.3d at 556 (“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 
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prejudiced by the plaintiff’s noncompliance.”). As our Supreme Court has further 

explained:

Myers and Stevens thus instruct that: (1) providing potential 

defendants pre-suit notice of health care liability claims is the “essence”

and “fundamental” purpose of the pre-suit notice requirement, Myers, 382 

S.W.3d at 309; and (2) unless strict compliance with a notice content 

requirement “is essential to avoid prejudicing an opposing litigant,”

substantial compliance with a content requirement will suffice, Stevens, 418 

S.W.3d at 555.

Thurmond v. Mid-Cumberland Infectious Disease Consultants, PLC, 433 S.W.3d 512, 

520 (Tenn. 2014). “Defendants are clearly prejudiced when unable, due to a form 

procedural error, to obtain medical records needed for their legal defense.” Hamilton v. 

Abercrombie Radiological Consultants, Inc., 487 S.W.3d 114, 120 (Tenn. Ct. App. 

2014), perm. app. denied (Tenn. May 15, 2015). 

In support of their assertion that they substantially complied with pre-suit notice 

content requirements, the Lawsons argue that the element missing from their medical 

authorization, designation of who was authorized to make the requested use or disclosure,

was not necessary to KDG’s ability to mount a defense because (1) KDG already had 

access to the medical record it generated when Mr. Lawson underwent treatment there on 

April 29, 2013; (2) it was one missing element, rather than several; (3) the document 

entitled “LIST OF HEALTH CARE PROVIDERS,” which had been attached to the presuit notice, supplemented the HIPAA authorization to satisfy the missing element; (4) 

and the April 29, 2013 medical record did not document the incident or injury at issue. 

We will address each argument in turn. 

First, the Lawsons argue that KDG was not prejudiced because it was already in 

possession of the only medical record relevant to the case at bar. However, “[i]n Roberts, 

this Court rejected the argument that because the pertinent medical records were already 

in the defendants’ possession, this fact should result in a holding excusing full 

compliance with the statutory requirements.” See Hamilton, 487 S.W.3d at 122 (citing 

Roberts v. Prill, No. E2013-02202-COA-R3-CV, 2014 WL 2921930, at *5 (Tenn. Ct. 

App. June 26, 2014)). Although “[i]n 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,’” “HIPAA generally provides that a covered entity may not 

‘use or disclose protected health information without’ valid authorization.” Roberts v. 

Prill, No. E2013-02202-COA-R3-CV, 2014 WL 2921930, at *6 (Tenn. Ct. App. June 26, 

2014) (quoting 45 C.F.R. § 164.508(a)(1)-(2)(i)(C)) (emphasis in Roberts). 
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The Lawsons in their complaint named two health care providers as defendants, 

KDG and Ms. Hageman. In a case involving one defendant to a health care liability 

action, our Supreme Court has recently held:

[B]ased on the clear and unambiguous language of section 29-26-

121(a)(2)(E), a plaintiff need not provide a HIPAA-compliant authorization 

when a single healthcare provider is given pre-suit notice of a healthcare 

liability claim. The authorization only allows a potential defendant to 

obtain the prospective plaintiff’s medical records from any other healthcare 

provider also given notice and identified as a potential defendant in the presuit notice. This authorization requirement is consistent with section 29-

26-121(d)(1), which specifies that all parties to a healthcare suit “shall be 

entitled to obtain complete copies of the claimant’s medical records from 

any other provider receiving notice” and that the claimant complies with 

this requirement by providing a HIPAA-compliant medical authorization 

with pre-suit notice. Id. § 29-26-121(d)(1).

Bray v. Khuri, ___ S.W.3d, ___, ___, No. W2015-00397-SC-R11-CV, 2017 WL 

2856697, at *2 (Tenn. July 5, 2017). 

In holding that when the complaint is against a single health care provider, a 

HIPAA-compliant authorization is not needed, the Bray Court specifically distinguished 

such a situation from that in Roberts, 2014 WL 2921930, a health care liability action 

involving two named defendants. As the Bray Court explained in relevant part:

In Roberts, the plaintiff filed a healthcare liability suit against the 

decedent’s treating oncologist and the specialty healthcare group that 

employed the oncologist. . . . While Roberts and the case at bar are both 

healthcare liability suits concerning incomplete medical authorizations, 

they are factually distinguishable on a critical point: Roberts involved two 

defendants, whereas this case involves a single defendant. 

Bray, ___ S.W.3d at ___, 2017 WL 2856697, at *3.

We determine the instant action to be on point with Roberts and therefore 

conclude that the one-defendant exception articulated in Bray does not apply in this 

action. The Lawsons were required to include a HIPAA-compliant medical authorization 

with their pre-suit notice to the original two Defendants. Moreover, because KDG’s 

possession of the medical record from the date of the alleged injury did not operate as an 

authorization for KDG to disclose the record, we further determine the Lawsons’ 

argument that KDG needed no such authorization to be unavailing.
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Second, the Lawsons rely in part on our Supreme Court’s decision in Stevens, 

noting that the Court affirmed the dismissal of the plaintiff’s action in Stevens when the 

plaintiff omitted from her medical authorization “at least three of the six compliance 

requirements.” See Stevens, 418 S.W.3d 547 at 556. The Lawsons argue that their

situation is distinguishable because they omitted only one element. However, substantial 

compliance, as it is used in the context of pre-suit notice, does not refer solely to the 

number of satisfied elements, but rather to a degree of compliance that provides the 

defendant with the ability to access and use the medical records for the purpose of 

mounting a defense. See 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.”). The relevant inquiry, therefore, is whether the Lawsons

failed to meet this threshold requirement, rather than how many core elements of the 

authorization were omitted.

The Lawsons argue that the instant action is comparable to the factual situation in 

Hamilton, 487 S.W.3d at 122, wherein this Court reversed the trial court’s dismissal of 

the plaintiff’s health care liability claim upon the determination that the plaintiffs’ presuit medical authorization substantially complied with HIPAA regulations despite the 

omission of one core element, the expiration date or event relating to the individual or the 

purpose of the use or disclosure. See C.F.R. § 164.508(c)(1)(v). The Hamilton Court 

distinguished the facts at issue in its determination of substantial compliance from those 

in Roberts as follows in pertinent part:

We read the Roberts holding in light of the particular shortcomings 

in the Roberts HIPAA form, which, as discussed above, were more 

substantive and substantial than the omitted date on the HIPAA form in the 

instant case. The relatively minor omission on Appellant’s HIPAA form, 

coupled with the lack of evidence that Appellees were prejudiced or 

otherwise denied access to medical records as a result of the missing date, 

leads us to conclude that the trial court applied the Stevens holding too 

harshly in this case. While we concede that it is not good practice to omit 

any of the C.F.R. criteria from a HIPAA form, we conclude that the 

relatively minor shortcoming in the HIPAA form here is not fatal to the 

Appellant’s cause of action. The Appellant substantially complied with § 

29-26-121(a)(2)(E) because she provided Appellees sufficient notice to 

obtain the relevant medical records.
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Hamilton, 487 S.W.3d at 122 (citing Roberts, 2014 WL 2921930, at *5) (additional 

internal citations omitted).

In contrast to the omitted date at issue in Hamilton, the case at bar presents a 

situation in which the name or other specific identification of the person(s) or class of 

persons authorized to make the requested use or disclosure is missing from the Lawsons’ 

pre-suit medical authorization. As KDG notes on appeal, health care providers presented 

with a medical authorization missing the identification of those authorized to release 

information would have no way of knowing that they were the providers for which the 

authorization was intended or that they were allowed to release medical records. Here, 

the authorization form provided by the Lawsons to KDG does not specify KDG as a 

provider allowed to release Mr. Lawson’s medical records. Although the omission in this 

case includes only one of the omitted items at issue in Roberts, we determine that it is a 

necessary element to Defendants’ legal authorization to use the pertinent medical records 

to mount a defense. See Roberts, 2014 WL 2921930, at *5. 

The Lawsons also rely on this Court’s decision in Hughes v. Henry Cty. Med. Ctr., 

No. W2014-01973-COA-R3-CV, 2015 WL 3562733 (Tenn. Ct. App. June 9, 2015). In 

Hughes, the pre-suit authorization provided to the defendant medical facility did not 

allow the facility to obtain and utilize records from the other defendant, a physician 

employed by the facility. Id. at *1. This Court reversed the trial court’s dismissal of the 

health care liability action in Hughes upon determining that the defendant physician had 

only treated the decedent at the defendant facility and possessed no medical records 

separate from the facility. Id. at *5 (concluding that the goal of providing the defendant 

with the means necessary to evaluate the substantive merits of the plaintiff’s claim was 

satisfied because the defendant facility “was authorized to use all of the patient’s relevant 

medical records”). The Lawsons draw a parallel between Hughes and this case because 

of the employer-employee relationship between Defendants. However, unlike in Hughes, 

the defendant medical practice in this action, KDG, was not provided with authorization 

to utilize Mr. Lawson’s medical records because the space on the authorization form for 

those entitled to disclose the records was left entirely blank. We therefore find the 

Lawsons’ reliance on Hughes to be unavailing.

Third, the Lawsons assert that the document attached to their pre-suit notice, titled,

“LIST OF HEALTH CARE PROVIDERS,” can supplement the HIPAA authorization to 

satisfy the requirement provided in 45 C.F.R. § 164.508(c)(1)(ii). However, the Code of 

Federal Regulations, with certain exceptions not applicable here, specifically prohibits 

compound authorizations. See 45 C.F.R. § 164.508(b)(3) (“An authorization for use or 

disclosure of protected health information may not be combined with any other document 

to create a compound authorization . . . .”). This Court has previously “rejected the 

Plaintiffs’ contention that the authorization forms were sufficient when considered 
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alongside the pre-suit notice letters that accompanied the forms.” See J.A.C. v. Methodist 

Healthcare Memphis Hosps., No. W2016-00024-COA-R3-CV, 2016 WL 6493229, at 8,

(Nov. 2, 2016), perm. app. denied (Tenn. Mar. 9, 2017). Therefore, the Lawsons could 

not combine their attached list of health care providers with the medical authorization in 

order to achieve substantial compliance.

Finally, the Lawsons concede that although Mr. Lawson allegedly suffered the 

injury at issue while attempting to position himself on the examination table rather than 

while receiving medical care, this action is governed by the Health Care Liability Act. 

See Tenn. Code Ann. § 29-26-101 (Supp. 2016) (defining a health care liability action in 

pertinent part as “any civil action . . . 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, e.g., Osunde v. Delta Med. Ctr., 505 S.W.3d 875, 888 (Tenn. Ct. App. 2016) 

(holding that an action involving the plaintiff’s fall from an allegedly faulty stool after 

undergoing an x-ray was governed by the pre-suit notice requirements of the Health Care 

Liability Act). The Lawsons assert, however, that because the medical record generated 

by KDG on the day of treatment at issue does not address the incident involving the 

examination table, the medical record could be of no assistance to KDG in mounting a 

defense and therefore does not prejudice KDG. We disagree. 

A one-page medical record concerning Mr. Lawson’s April 29, 2015 visit to KDG 

is in the record on appeal as an exhibit attached to the Lawsons’ response to Defendants’ 

motion to dismiss. It is undisputed that this one-page record does not reference the 

incident involving the examination table. However, we have no way of knowing, nor did 

the trial court, how the medical record before us, which includes a description of Mr. 

Lawson’s presenting his condition requiring dermatology treatment subsequent to 

suffering his purported injury allegedly caused by the table malfunction, would be 

evaluated by an expert witness or consultant. Moreover, because the medical 

authorization provided by the Lawsons failed to designate who would be authorized to 

make use of the medical record, KDG was foreclosed by HIPAA regulations from 

consulting with anyone to determine whether the record could aid in mounting a defense. 

See Stevens, 418 S.W.3d 547 at 555; Roberts, 2014 WL 2921930, at *5.

Upon thorough review, we conclude that KDG was prejudiced by the inadequacy

of the Lawsons’ pre-suit medical authorization because KDG would not be allowed to 

use Mr. Lawson’s medical records to mount a defense. The trial court did not err in 

dismissing the Lawsons’ health care liability action against KDG without prejudice based 

on the Lawsons’ failure to provide medical authorization with their pre-suit notice that 

was substantially compliant with HIPAA regulations. 
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We note that inasmuch as the Lawsons failed to comply with pre-suit notice 

requirements, they did not obtain the 120-day extension of the statute of limitations when 

they filed their complaint. See Tenn. Code Ann. § 29-26-121(c); Byrge v. Parkwest Med. 

Ctr., 442 S.W.3d 245, 251 (Tenn. Ct. App. 2014), perm. app. denied (Tenn. June 24, 

2014) (affirming the trial court’s dismissal of the plaintiff’s health care liability action as 

untimely upon determining that “[a]s Plaintiff failed to give notice to Parkwest as 

required in the statute, and failed to demonstrate extraordinary cause to excuse his noncompliance, Plaintiff cannot and did not obtain the 120 day extension of the statute of 

limitations.”). We therefore acknowledge that any future claims filed by the Lawsons in 

this matter would be time-barred. See, e.g., Roberts, 2014 WL 2921930, at *6 (affirming 

the trial court’s dismissal of the plaintiff’s action filed during the extension period 

without prejudice based on noncompliance with presuit notice requirements while

acknowledging that any further claims in the matter would be time-barred).

V. Conclusion

For the foregoing reasons, we affirm the trial court’s judgment dismissing the 

Lawsons’ health care liability claim against KDG without prejudice. We acknowledge, 

however, that any future claims filed by the Lawsons in this matter would be time-barred. 

This case is remanded to the trial court, pursuant to applicable law, for enforcement of 

the trial court’s judgment and collection of costs below. The costs on appeal are assessed 

against the appellants, Tommy Lynn Lawson and Katrina Lawson.

_________________________________

THOMAS R. FRIERSON, II, JUDGE