IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

June 19, 2019 Session

CARL SHORT EX REL. ALLISON HOPE SHORT v. METRO KNOXVILLE 

HMA, LLC, ET AL.

Appeal from the Circuit Court for Knox County

No. 2-346-17 William T. Ailor, Judge

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No. E2018-02292-COA-R3-CV

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THOMAS R. FRIERSON, II, J., dissenting.

I respectfully dissent from the majority’s decision to reverse the trial court’s 

dismissal of this action. I believe that the trial court properly relied on this Court’s 

majority opinion in Parks v. Walker, No. E2017-01603-COA-R3-CV, 2018 WL 6242461 

(Tenn. Ct. App. Nov. 28, 2018), perm. app. denied (Tenn. Mar. 27, 2019), as an 

analogous case. The trial court found that the plaintiff, Carl Short (“Plaintiff”), had failed 

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

2018), which provides that written pre-suit notice shall include a HIPPA-compliant 

medical authorization “permitting the provider receiving the notice to obtain complete 

medical records from each other provider being sent a notice.” Inasmuch as the 

authorizations in the instant action authorize each defendant to disclose medical records 

to the other named medical providers but do not authorize each provider to request the 

other providers’ records, I conclude that, as in Parks, Plaintiff’s authorizations are “not 

sufficient to enable defendants to obtain plaintiff’s medical records” and are therefore not 

substantially compliant with the statute. See Parks, 2018 WL 6242461, at *3.

The majority distinguishes the facts in the case at bar from those in Parks because 

the plaintiff in Parks, unlike the plaintiff in the instant action, had failed to state the 

purpose of the medical authorizations. See id. at *3 (explaining that this lack of stated 

purpose was a missing “core element” pursuant to 45 C.F.R. § 164.508(c)(1)(iv)). 

However, upon careful review, I do not find that this Court’s majority decision in Parks

was dependent on the missing core element of a stated purpose. The Parks majority also 

determined that the authorizations were not substantially compliant because the plaintiff 

had failed to authorize requests of medical records from the other named providers even 

though the plaintiff had included a list of the medical providers with each authorization 

form. Id. at *3. Moreover, “substantial compliance, as it is used in the context of pre-suit 

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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.” Lawson v. Knoxville Dermatology Grp., 

P.C., 544 S.W.3d 704, 711 (Tenn. Ct. App. 2017), perm. app. denied (Tenn. Nov. 16, 

2017) (citing Stevens ex rel. Stevens v. Hickman Cmty. Health Care Servs., Inc., 418 

S.W.3d 547, 555 (Tenn. 2013)).

In Parks, the “authorizations provided to defendants only authorize[d] them ‘to 

release, use or disclose’ plaintiff’s health records to the other providers listed in the 

authorization.” Parks, 2018 WL 6242461, at *1. In noting the plaintiff’s argument that 

“each provider can look at the list of providers and should know that each of them also 

received their own authorization form allowing them to release, use or disclose the 

material information,” the Parks trial court found that this proposition was not in keeping

with the requirements of the law because “to be effective, the authorization form must 

allow a medical provider to obtain records from other providers.” Id. at *3. This Court’s 

majority opinion “affirm[ed] the trial court’s holding that plaintiff’s authorization [was] 

not sufficient to enable defendants to obtain plaintiff’s medical records.” Id. In the 

instant action, the majority states that “to the extent this Opinion may conflict with Parks, 

we submit that Parks was decided wrongly.” I respectfully disagree.1 

In the case at bar, the majority takes issue with the defendants’ selective reliance 

on Plaintiff’s written notice letter, a copy of which accompanied each authorization sent 

to individual defendants. I agree with the majority that “the notice letter either is to be 

considered along with the authorization or it is not.” However, I conclude that combining 

the plaintiff’s notice letter with the authorization form to create substantial compliance 

impermissibly creates a compound authorization. As this Court has explained:

[T]he [plaintiffs] 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 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, 542 S.W.3d 502, 514, 2016 WL 

6493229, at *8 (Nov. 2, 2016), perm. app. denied (Tenn. Mar. 9, 2017). 

 

1

I do, however, respectfully share in the majority’s suggestion that this matter may be suitable for final 

resolution by our Supreme Court.
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Therefore, the [plaintiffs] could not combine their attached list of health 

care providers with the medical authorization in order to achieve substantial 

compliance.

Lawson, 544 S.W.3d at 712. In this case, the plaintiff failed to provide authorizations 

permitting the defendants receiving the notice to “obtain complete medical records from 

each other provider being sent a notice.” See Tenn. Code Ann. § 29-26-121(a)(2)(E).

For the foregoing reasons, I submit that the trial court properly dismissed this 

action for lack of substantial compliance with Tennessee Code Annotated § 29-26-

121(a)(2)(E). I therefore respectfully dissent from the majority’s decision to reverse the 

trial court’s judgment.

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THOMAS R. FRIERSON, II, JUDGE