FILED

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

October 15, 2019 Session

DEC - 9 2019

Clerk of the Appellate Courts

Rec'd by 

JENNIFER MOORE-PITTS ET AL. v. CARL A BRADLEY, DDS, MAGD

Appeal from the Circuit Court for Knox County

No. 1-167-18 Kristi M. Davis, Judge

No. E2018-01729-COA-R3-CV

This appeal concerns a healthcare liability action filed by Jennifer Moore-Pitts and David

Pitts ("Plaintiffs") in the Knox County Circuit Court ("Trial Court") against Carl A.

Bradley, DDS, MAGD ("Defendant"). Defendant filed a motion to dismiss Plaintiffs'

action on the basis of noncompliance with Tennessee Code Annotated § 29-26-

121(a)(2)(E), which requires that pre-suit notice include a HIPAA-compliant medical

authorization allowing the healthcare provider receiving the notice to obtain complete

medical records from every other provider that is sent a notice.' Approximately forty

healthcare providers, including Defendant, received pre-suit notice from Plaintiffs. On the

medical authorization provided to Defendant, Plaintiffs left blank the name of the

individual or entity authorized to make the disclosure of medical records to Defendant but

provided an attachment of the names and addresses of the other providers receiving notice.

The Trial Court found that Plaintiffs' medical authorization provided to Defendant was not

sufficient to allow Defendant to obtain Ms. Moore-Pitts' s medical records from the other

providers who received the pre-suit notice. As such, the Trial Court found that Plaintiffs

could not rely on Tennessee Code Annotated § 29-26-121(c) to extend the statute of

limitations for 120 days. Because Plaintiffs' action was filed one year and 118 days after

the cause of action accrued, the Trial Court determined that Plaintiffs' action was untimely.

The Trial Court, therefore, granted Defendant's motion to dismiss. Discerning no error,

we affirm the judgment of the Trial Court.

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

Affirmed; Case Remanded

D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which CHARLES D.

SUSANO, JR., and THOMAS R. FRIERSON, II, JJ., joined.

1 HIPAA refers to the Health Insurance Portability and Accountability Act of 1996, Pub. L. No.

104-191, 110 Stat. 1936.
Arthur F. Knight, III; Jonathan Swann Taylor; and Caitlin C. Burchette, Knoxville,

Tennessee, for the appellants, Jennifer Moore-Pitts and David Pitts.

Mark A. Castleberry and Caitlyn Luedtke Elam, Knoxville, Tennessee, for the appellee,

Carl A. Bradley.

OPINION

Background

On January 13, 2017, Jennifer Moore-Pitts allegedly experienced complications

resulting from a surgical wisdom teeth extraction performed by Defendant. Plaintiffs

provided Defendant with pre-suit notice on January 5, 2018, which included a letter to

Defendant informing him of Plaintiffs' intent to initiate legal action and a medical

authorization that Plaintiffs contend was HIPAA compliant. It is undisputed that

Defendant received the letter and attachments.

The medical authorization provided to Defendant sufficiently includes Ms. MoorePitts information and the dates of treatment. The authorization also contains a space for

the name of the person or entity authorized to provide records to Defendant. Plaintiffs did

not fill in this blank on the authorization but provided Defendant with an attached

document containing a list of forty healthcare providers that had received notice of the

potential lawsuit. The medical authorization states that the purpose of the disclosure is

"[t]o supply to treating providers and/or for formal litigation." The expiration of the

medical authorization is identified as one year from the date the authorization was signed.

Ms. Moore-Pitts signed and dated the medical authorization on January 3, 2018.

In May 2018, approximately one year and 118 days following accrual of Plaintiffs'

cause of action, Plaintiffs filed suit against Defendant in the Trial Court, alleging

negligence by Defendant as to the dental surgery he performed on Ms. Moore-Pitts.

Plaintiffs attached a certificate of good faith to the complaint, as well as the provided presuit notice. In June 2018, Defendant filed a motion to dismiss and an accompanying

memorandum of law in support of his motion. Plaintiffs subsequently filed a response to

the motion to dismiss.

The Trial Court conducted a hearing in August 2018 with oral arguments by

counsel. Following the hearing, the Trial Court granted Defendant's motion to dismiss,

determining that Plaintiffs had not substantially complied with the pre-suit notice

requirement in Tennessee Code Annotated § 29-26-121(a)(2)(E) to provide a HIPAAcompliant medical authorization because the "medical authorization attached to Plaintiffs'

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pre-suit notice of intent letter to Defendant did not permit Defendant to obtain complete

medical records from the other forty (40) providers who also received notice . . . ." The

Trial Court further found that because Plaintiffs had not substantially complied with the

pre-suit notice requirement, they were not entitled to the 120-day extension of the statute

of limitations. Finding Plaintiffs' action to be time barred, the Trial Court granted

Defendant's motion to dismiss. Plaintiffs timely appealed.

Discussion 

Although not stated exactly as such, Plaintiffs raise the following issues for our

review: (1) whether the Trial Court erred by determining that Plaintiffs failed to

substantially comply with the pre-suit notice requirement in Tennessee Code Annotated §

29-26-121(a)(2)(E), (2) whether the Trial Court erred by determining that Defendant was

prejudiced by Plaintiffs' failure to substantially comply with the pre-suit notice

requirement in Tennessee Code Annotated § 29-26-121(a)(2)(E), (3) whether the Trial

Court erred by determining that Plaintiffs were required to comply with the pre-suit notice

requirement in Tennessee Code Annotated § 29-26-121(a)(2)(E) when the lawsuit actually

filed included only one defendant, Defendant, who was the sole custodian of the medical

records at issue, and (4) whether the Trial Court erred by finding that Plaintiffs were unable

to utilize the 120-day extension of the statute of limitations, pursuant to Tennessee Code

Annotated § 29-26-121(c).

This case was resolved on a motion to dismiss. Our standard of review is de novo

with no presumption of correctness. J.A.C. by and through Carter v. Methodist Healthcare

Memphis Hosps., 542 S.W.3d 502, 509 (Tenn. Ct. App. 2016). Our Supreme Court has

further provided as follows regarding healthcare liability actions:

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 [Civil] 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

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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.

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

We first address whether the Trial Court erred in holding that Plaintiffs failed to

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

requirement to provide a HIPAA-compliant medical authorization when Plaintiffs left the

space naming the provider permitted to disclose records to Defendant blank. Although

Plaintiffs raise them as two separate issues, whether the Defendant has been prejudiced by

Plaintiffs' failure to comply with Tennessee Code Annotated § 29-26-121(a)(2)(E) is to be

considered along with the extent of Plaintiffs' noncompliance to determine whether

Plaintiffs substantially complied. See Stevens ex rel. Stevens v. Hickman Cmty. Health

Care Servs., Inc., 418 S.W.3d 547, 555 (Tenn. 2013). Tennessee Code Annotated § 29-

26-121(a)(2)(E) (2012) requires plaintiffs in healthcare liability suits to send as part of their

pre-suit written notices "[a] HIPAA compliant medical authorization permitting the

provider receiving the notice to obtain complete medical records from each other provider

being sent a notice."

Regarding defective HIPAA-compliant medical authorizations, 45 C.F.R. §

164.508(b) provides in pertinent part: 1

(2) Defective authorizations. An authorization is not valid, if the document

submitted has any of the following defects:

* * *

(ii) The authorization has not been filled out completely, with respect to an

element described by paragraph (c) of this section, if applicable . . . .

Additionally, 45 C.F.R. § 164.508(c)(1) provides as follows as to the core requirements for

a HIPAA-compliant medical authorization:

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.

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(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. The

statement "at the request of the individual" is a sufficient description of the

purpose when an individual initiates the authorization and does not, or elects

not to, provide a statement of the purpose.

(v) An expiration date or an expiration event that relates to the individual or

the purpose of the use or disclosure. The statement "end of the research

study," "none," or similar language is sufficient if the authorization is for a

use or disclosure of protected health information for research, including for

the creation and maintenance of a research database or research repository.

(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.

The Trial Court found that Plaintiffs had not provided Defendant with a HIPAAcompliant medical authorization because of Plaintiffs' failure to fill in the blank naming

the provider authorized to disclose records to Defendant, pursuant to Tennessee Code

Annotated § 29-26-121(a)(2)(E). However, not every failure to comply perfectly with that

statute is fatal to a healthcare liability plaintiffs case. Regarding the degree of

noncompliance that will derail a plaintiff's case, our Supreme Court has stated:

A plaintiff s less-than-perfect compliance with Tenn. Code Ann. § 29-

26-121(a)(2)(E), however, should not derail a healthcare liability claim.

Non-substantive errors and omissions will not always prejudice defendants

by preventing them from obtaining a plaintiff's relevant medical records.

Thus, we hold that a plaintiff must substantially comply, rather than strictly

comply, with the requirements of Tenn. Code Ann. § 29-26-121(a)(2)(E).

Stevens, 418 S.W.3d at 555.

Tennessee Code Annotated § 29-26-121(a)(2)(E) "serve[s] an investigatory

function, equipping defendants with the actual means to evaluate the substantive merits of

a plaintiff's claim by enabling early discovery of potential co-defendants and early access

to a plaintiffs medical records." Stevens, 418 S.W.3d at 554. Although a plaintiff must

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only "substantially comply" with Tennessee Code Annotated § 29-26-121(a)(2)(E), "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. at 555 (citing 45 C.F.R. § 164.508(a)(1)). This is "[b]ecause HIPAA itself prohibits

medical providers from using or disclosing a plaintiff's medical records without a fully

compliant authorization form." Id. In its determination regarding whether a plaintiff has

substantially complied with the requirement of Tennessee Code Annotated § 29-26-

121(a)(2)(E), "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.

In the present case, Plaintiffs did not provide in the medical authorization the

identity of the individual or entity authorized to make the disclosure of medical records to

Defendant. We note that this Court has held that a defendant is not required to fill in the

blanks of a medical authorization to make it a valid authorization in compliance with

HIPAA. See IA. C., 542 S.W.3d at 515. In that case, the Court recognized that "[w]e know

of no authority permitting the Providers to alter the authorization forms that were already

given to them." Id. Therefore, the Court held that the providers were under no obligation

to complete the authorization forms provided to them by the plaintiff in order to assist the

plaintiff in achieving substantial compliance with Tennessee Code Annotated § 29-26-

121(a)(2)(E). Id. at 515-16. As this Court noted, it is the plaintiff's, not the defendant's,

responsibility to comply with Tennessee Code Annotated § 29-26-121(a)(2)(E) by

providing a HIPAA-compliant medical authorization. See id.

In a similar case, this Court in Lawson v. Knoxville Dermatology Grp., P.C., 544

S.W.3d 704 (Tenn. Ct. App. 2017), perm. app. denied (Tenn. Nov. 16, 2017), addressed

the effect of a plaintiff's failure to identify the person or organization authorized to disclose

records on the medical authorization required by Tennessee Code Annotated § 29-26-

121(a)(2)(E). The Lawson Court concluded that the missing element was necessary and

that the defendant had been prejudiced by the insufficient medical authorization because

the defendant was unable to use the plaintiff's medical records to mount a defense. Id. at

712-13. The Court, thus, determined that the plaintiff had not substantially complied with

the pre-suit notice requirements. Id. at 713.

In the case before us, Plaintiffs failed to identify on the medical authorization the

identity of the individual or entity authorized to make the disclosure of medical records to

Defendant. As did the Court in Lawson, we conclude that this is an essential element for

the Defendant to obtain records from the other providers. The omission of the individual

or entity authorized to make the disclosure of medical records to Defendant prevented

Defendant from obtaining the records for investigatory purposes prior to commencement

of the action. In their issues, Plaintiffs point out that Defendant had not attempted to use

the authorization. This Court previously determined that a defendant was not required to

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test the sufficiency of a medical authorization by attempting to access a plaintiff's medical

records when the medical authorization obviously is deficient. See J.A.C., 542 S.W.3d at

514. The medical authorization provided by Plaintiffs to Defendant as part of their presuit notice obviously was deficient. As such, we find that Defendant was prejudiced by

Plaintiffs' noncompliant medical authorization because the authorization was not sufficient

to enable Defendant to obtain Ms. Moore-Pitts' s medical records from the other providers

sent the pre-suit notice. We hold, as did the Trial Court, that Plaintiffs did not substantially

comply with Tennessee Code Annotated § 29-26-121(a)(2)(E).

We next address the issue of whether the Trial Court erred by determining that

Plaintiffs were required to comply with Tennessee Code Annotated § 29-26-121(a)(2)(E)

when the lawsuit filed named only one defendant. Plaintiffs cite to the Supreme Court's

opinion in Bray v. Khuri, 523 S.W.3d 619, 622 (Tenn. 2017), and argue that they were not

required to provide Defendant with a HIPAA-compliant medical authorization because

Defendant was the only defendant named in the lawsuit. In Bray, our Supreme Court held

as follows in relevant part:

We hold that, based 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 pre-suit 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).

Id.

The case now before us is distinguishable from Bray. In Bray, the Supreme Court

held that a HIPAA-compliant medical authorization is not required when a plaintiff sends

pre-suit notice only to one provider, not when he or she files suit against only one provider.

Plaintiffs in this case sent pre-suit notice to approximately forty providers. According to

Plaintiffs' appellate brief, they had provided notice to the other providers as a protective

measure to allow Plaintiffs to further develop their investigation of potential claims.

However, Defendant was not permitted to investigate those claims against him due to the

insufficiency of the medical authorization because he was unable to obtain Ms. MoorePitts's medical records from the other providers receiving notice as he was entitled to do

pursuant to Tennessee Code Annotated § 29-26-121(a)(2)(E). With the multiple providers

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receiving pre-suit notice, Defendant had no way to know that Plaintiffs would file suit

against only him. Because pre-suit notice was sent to multiple providers, Bray supports

Defendant's position and not Plaintiffs'. As such, Plaintiffs cannot rely on the single

potential defendant exception to excuse them from complying with Tennessee Code

Annotated § 29-26-121 (a)(2)(E).

Next, we address whether Plaintiffs may rely on the 120-day extension of the statute

of limitations when filing their action. Tennessee Code Annotated § 29-26-121(c) provides

in relevant part: "When notice is given to a provider as provided in this section, the

applicable statutes of limitations and repose shall be extended for a period of one hundred

twenty (120) days from the date of expiration of the statute of limitations and statute of

repose applicable to that provider." Pursuant to the statute, the plaintiffs in a healthcare

liability action may rely on the 120-day extension only when pre-suit notice was given to

the provider. As we have determined, Plaintiffs failed to substantially comply with the

requirement of Tennessee Code Annotated § 29-26-121(a)(2)(E) to provide a HIPAAcompliant medical authorization with their pre-suit notice. Therefore, Plaintiffs'

noncompliance with the pre-suit notice requirements prevents them from relying on the

120-day extension of the relevant statute of limitations. See Lawson, 544 S.W.3d at 713

("We note that inasmuch as the [plaintiffs] 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."). Because Plaintiffs filed their action one year and 118 days

after the cause of action accrued, Plaintiffs' action was untimely.

We now address Plaintiffs' argument that Plaintiffs' noncompliance with Tennessee

Code Annotated § 29-26-121(a)(2)(E) should be excused for extraordinary cause.'

Defendant argues that this issue should be considered waived because Plaintiffs did not

raise the issue below. Upon a review of the record, Defendant states in his motion to

dismiss as follows: "Because Plaintiffs failed to provide Defendant with proper pre-suit

notice and have failed to show any extraordinary cause that would have prevented Plaintiffs

from providing proper pre-suit notice, Plaintiffs' Complaint should be dismissed with

prejudice because it was not timely filed (emphasis added)." Defendant asserted during

the trial court proceedings that Plaintiffs had failed to show extraordinary cause but it was

not otherwise specifically addressed. Plaintiffs did, however, argue in the Trial Court that

Ms. Moore-Pitts sought treatment from "numerous medical providers," which is the crux

of her argument on appeal regarding extraordinary cause. As such, we will proceed to

address this issue.

2 While Plaintiffs failed to include this issue as a separate issue in their statement of issues, we will

consider it as it is, arguably, included in their other issues.

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Tennessee Code Annotated § 29-26-121(b) provides that the court can, at its

discretion, excuse compliance with subsection (a) "only for extraordinary cause shown."

Our Supreme Court has explained as follows regarding the meaning of extraordinary cause:

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."

Webster 's New World Dictionary of the American Language, 516 (1966); see

also State v. Vikre, 86 N.C.App. 196, 356 S.E.2d 802, 804 (1987) (adopting

dictionary definition of extraordinary cause as "going beyond what is usual,

regular, common, or customary . . . of, relating to, or having the nature of an

occurrence or risk of a kind other than what ordinary experience or prudence

would foresee"). 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.

The factual circumstances surrounding this action are not extraordinary. It is not

uncommon or extraordinary for a plaintiff to have received treatment from numerous

providers prior to a healthcare liability action being filed or even considered. Therefore,

we determine that Plaintiffs failed to show any extraordinary cause sufficient to excuse

Plaintiffs' noncompliance with Tennessee Code Annotated § 29-26-121(a)(2)(E).

Finally, we address Plaintiffs' argument that Tennessee Code Annotated § 29-26-

121 is contrary to public policy. The responsibility of determining public policy generally

lies with the General Assembly. Purkey v. Am. Home Assur. Co., 173 S.W.3d 703, 705

(Tenn. 2005). Therefore, "the judiciary may only determine public policy 'in the absence

of any constitutional or statutory declaration.'" Id. (quoting Alcazar v. Hayes, 982 S.W.2d

845, 851 (Tenn. 1998)). The General Assembly has established public policy by enacting

Tennessee Code Annotated § 29-26-121. The requirement that pre-suit notice to a

defendant must include a HIPAA-compliant medical authorization "was a policy decision

by the General Assembly that `equip[s] 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.'" J.A.C., 542 S.W.3d at 521 (quoting Stevens, 418 S.W.3d at 555). As an

intermediate appellate court, we will not attempt to substitute our judgment regarding

public policy for that of the General Assembly. See Runions v. Jackson-Madison Cty. Gen.

Hosp. Dist., 549 S.W.3d 77, 87-88 (Tenn. 2018); BellSouth Telecomms., Inc. v. Greer, 972

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S.W.2d 663, 673 (Tenn. Ct. App. 1997). Just as was the Trial Court, this Court also is

constrained by the healthcare liability statutes enacted by our General Assembly.

Conclusion

The judgment of the Trial Court is affirmed, and this cause is remanded to the Trial

Court for collection of the costs below. The costs on appeal are assessed against the

appellants, Jennifer Moore-Pitts and David Pitts, and their surety, if any.

D. MICHAEL SWINEY, CHIEF JUDGE

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