11/28/2018 IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE August 21, 2018 Session
JENNIFER PARKS v. REBECCA A. WALKER, M.D., ET AL.
Appeal from the Circuit Court for Knox County No. 1-278-16 Kristi Davis, Judge
No. E2017-01603-COA-R3-CV
D. MICHAEL SWINEY, C.J., dissenting. I respectfully dissent from the majority’s decision in this case. I disagree with the majority’s holding “that the medical authorizations in this case do not substantially comply with the provisions of Tenn. Code Ann. § 29-26-121.” I would reverse the Trial Court as I believe the medical authorizations do substantially comply. The majority correctly notes “the authorization sent to each defendant authorizes them to ‘release, use or disclose’ the health records of plaintiff to the other named providers. The authorization then lists the providers to whom the entity is authorized to release the records.” Every medical provider defendant is named in this list. The majority, however, then affirms the Trial Court’s holding “that plaintiff’s authorization is not sufficient to enable defendants to obtain plaintiff’s medical records.” If that were the entirety of the situation, I would agree with the majority. However, that is not the entirety of the situation here. Attached to the complaint as exhibit B is an affidavit from plaintiff’s attorney. Attached to this affidavit are copies of the February 19, 2016 notice letter sent to each of the medical providers. Accompanying this letter was a “LIST OF NAME AND ADDRESS OF ALL HEALTH CARE PROVIDERS TO WHOM THIS NOTICE IS SENT PURSUANT TO TENN. CODE ANN. § 29-26-121(A) OF A POTENTIAL CLAIM FOR MEDICAL MALPRACTICE.” This list contained the names of each medical provider defendant to this lawsuit. The last sentence on that page states “Each provider above is being sent a HIPAA-compliant medical authorization permitting each to obtain complete medical records from each other.” Then also attached to each letter was a copy of the medical authorization release form sent to that medical provider authorizing that medical provider defendant to “release, use or disclose” to all of the listed medical providers the plaintiff’s medical records. For purposes of clarity, and as an example of what was sent to each medical provider defendant, attached to this dissent as attachment 1 is a copy of the letter and the medical authorization forms sent to one of the medical provider defendants, Rebecca A. Walker, M.D. As alleged in the complaint, each medical provider defendant was furnished the same authorization with the only difference being the name of that medical provider defendant inserted where it stated: “I hereby authorize ________ to release, use or disclose from the health records of: . . . .” Each authorization contained a list of the medical provider defendants to whom the medical provider defendant was authorized “to release, use or disclose . . .” plaintiff’s health records. According to the complaint, each medical provider defendant was furnished a notice and a medical authorization form allowing them to disclose the plaintiff’s medical records to all the other medical provider defendants as listed on that form. Further, each medical provider defendant was told in this notice that each medical provider defendant had been sent such a HIPAA-compliant medical authorization form “permitting each to obtain complete medical records from each other.” In short, each medical provider defendant was told that every other medical provider defendant had been furnished a “HIPAA-compliant medical authorization” that authorized each and every one of the medical provider defendants to release plaintiff’s records to each and every other medical provider defendant. If all that plaintiff had furnished had been the medical authorization form without the list of names and addresses of all health care providers, which specifically stated that each medical provider defendant was being sent such a HIPAA-compliant medical authorization permitting each one to obtain complete medical records from the others, the releases may well have been deficient. According to the complaint, however, the medical provider defendants were provided with this information at the time they received the medical authorization forms. Respectfully, the Trial Court and the majority focus only on the two page authorization forms and ignore the February 19, 2016 notice letters including the “LIST OF NAME AND ADDRESS OF ALL HEALTH CARE PROVIDERS TO WHOM THIS NOTICE IS SENT PURSUANT TO TENN. CODE ANN. § 29-26-122(A) OF A POTENTIAL CLAIM FOR MEDICAL MALPRACTICE,” all of which were attached to the complaint as part of exhibit B. As the Trial Court correctly notes, this dismissal was a result of a motion to dismiss. I believe it was error for the Trial Court and the majority to consider only part of exhibit B attached to the complaint while ignoring the remainder of exhibit B. From the complaint, each and every medical provider defendant was clearly told that “Each provider above is being sent a HIPAA-compliant authorization permitting each to obtain
-2- complete medical records from each other.” Each provider was told this at the same time each received the authorization “to release, use or disclose . . .” the plaintiff’s heath records to every other medical provider defendant. I believe this is substantial compliance with the statute because, as stated in the notice letter to the defendants, each and every one of them could get all of plaintiff’s medical records from the other medical provider defendants, and they knew it. To hold otherwise requires that we assume that the health care providers and their attorneys were all illiterate and unable to read the medical authorization form in conjunction with the notice letter sent to them. As to plaintiff’s failure to fill in the blank after: “For the purpose of:” in the authorization, I believe it is a technical violation that does not, by itself, prevent there being substantial compliance with the statute. The majority is correct that plaintiff did not fill in this blank. However, the phrase “at the request of the individual” would have been sufficient to satisfy this HIPAA requirement. At the risk of stating the obvious, “at the request of the individual” is obvious from the fact that “the individual” signed the request and stated no other purpose. In any event, I believe the failure to fill in this blank did not prevent substantial compliance with the statute as the effect and significance of that error or omission is minimal at most. I believe the record shows that there was substantial compliance by plaintiff with the statute. Each and every medical provider defendant was authorized by the medical authorizations to both release the medical records to and obtain the medical records from each and every other medical provider defendant. To hold otherwise in deciding this motion to dismiss is to ignore part of the complaint, including parts of exhibit B to the complaint, showing what actually was furnished to each of the medical provider defendants. This results in requiring perfection rather than substantial compliance. As the majority correctly notes in quoting our Supreme Court, the statute in question “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.” Stevens, ex rel. Stevens v. Hickman Community Health Care Servs., Inc. 418 S.W.3d 547, 555 (Tenn. 2013). Here, the medical provider defendants were so equipped but chose not to “evaluate the substantive merits of” the plaintiff’s claim early or otherwise. Id.
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11/28/2018 IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE August 21, 2018 Session
JENNIFER PARKS v. REBECCA A. WALKER, M.D., ET AL.
Appeal from the Circuit Court for Knox County No. 1-278-16 Kristi Davis, Judge
No. E2017-01603-COA-R3-CV
D. MICHAEL SWINEY, C.J., dissenting. I respectfully dissent from the majority’s decision in this case. I disagree with the majority’s holding “that the medical authorizations in this case do not substantially comply with the provisions of Tenn. Code Ann. § 29-26-121.” I would reverse the Trial Court as I believe the medical authorizations do substantially comply. The majority correctly notes “the authorization sent to each defendant authorizes them to ‘release, use or disclose’ the health records of plaintiff to the other named providers. The authorization then lists the providers to whom the entity is authorized to release the records.” Every medical provider defendant is named in this list. The majority, however, then affirms the Trial Court’s holding “that plaintiff’s authorization is not sufficient to enable defendants to obtain plaintiff’s medical records.” If that were the entirety of the situation, I would agree with the majority. However, that is not the entirety of the situation here. Attached to the complaint as exhibit B is an affidavit from plaintiff’s attorney. Attached to this affidavit are copies of the February 19, 2016 notice letter sent to each of the medical providers. Accompanying this letter was a “LIST OF NAME AND ADDRESS OF ALL HEALTH CARE PROVIDERS TO WHOM THIS NOTICE IS SENT PURSUANT TO TENN. CODE ANN. § 29-26-121(A) OF A POTENTIAL CLAIM FOR MEDICAL MALPRACTICE.” This list contained the names of each medical provider defendant to this lawsuit. The last sentence on that page states “Each provider above is being sent a HIPAA-compliant medical authorization permitting each to obtain complete medical records from each other.” Then also attached to each letter was a copy of the medical authorization release form sent to that medical provider authorizing that medical provider defendant to “release, use or disclose” to all of the listed medical providers the plaintiff’s medical records. For purposes of clarity, and as an example of what was sent to each medical provider defendant, attached to this dissent as attachment 1 is a copy of the letter and the medical authorization forms sent to one of the medical provider defendants, Rebecca A. Walker, M.D. As alleged in the complaint, each medical provider defendant was furnished the same authorization with the only difference being the name of that medical provider defendant inserted where it stated: “I hereby authorize ________ to release, use or disclose from the health records of: . . . .” Each authorization contained a list of the medical provider defendants to whom the medical provider defendant was authorized “to release, use or disclose . . .” plaintiff’s health records. According to the complaint, each medical provider defendant was furnished a notice and a medical authorization form allowing them to disclose the plaintiff’s medical records to all the other medical provider defendants as listed on that form. Further, each medical provider defendant was told in this notice that each medical provider defendant had been sent such a HIPAA-compliant medical authorization form “permitting each to obtain complete medical records from each other.” In short, each medical provider defendant was told that every other medical provider defendant had been furnished a “HIPAA-compliant medical authorization” that authorized each and every one of the medical provider defendants to release plaintiff’s records to each and every other medical provider defendant. If all that plaintiff had furnished had been the medical authorization form without the list of names and addresses of all health care providers, which specifically stated that each medical provider defendant was being sent such a HIPAA-compliant medical authorization permitting each one to obtain complete medical records from the others, the releases may well have been deficient. According to the complaint, however, the medical provider defendants were provided with this information at the time they received the medical authorization forms. Respectfully, the Trial Court and the majority focus only on the two page authorization forms and ignore the February 19, 2016 notice letters including the “LIST OF NAME AND ADDRESS OF ALL HEALTH CARE PROVIDERS TO WHOM THIS NOTICE IS SENT PURSUANT TO TENN. CODE ANN. § 29-26-122(A) OF A POTENTIAL CLAIM FOR MEDICAL MALPRACTICE,” all of which were attached to the complaint as part of exhibit B. As the Trial Court correctly notes, this dismissal was a result of a motion to dismiss. I believe it was error for the Trial Court and the majority to consider only part of exhibit B attached to the complaint while ignoring the remainder of exhibit B. From the complaint, each and every medical provider defendant was clearly told that “Each provider above is being sent a HIPAA-compliant authorization permitting each to obtain
-2- complete medical records from each other.” Each provider was told this at the same time each received the authorization “to release, use or disclose . . .” the plaintiff’s heath records to every other medical provider defendant. I believe this is substantial compliance with the statute because, as stated in the notice letter to the defendants, each and every one of them could get all of plaintiff’s medical records from the other medical provider defendants, and they knew it. To hold otherwise requires that we assume that the health care providers and their attorneys were all illiterate and unable to read the medical authorization form in conjunction with the notice letter sent to them. As to plaintiff’s failure to fill in the blank after: “For the purpose of:” in the authorization, I believe it is a technical violation that does not, by itself, prevent there being substantial compliance with the statute. The majority is correct that plaintiff did not fill in this blank. However, the phrase “at the request of the individual” would have been sufficient to satisfy this HIPAA requirement. At the risk of stating the obvious, “at the request of the individual” is obvious from the fact that “the individual” signed the request and stated no other purpose. In any event, I believe the failure to fill in this blank did not prevent substantial compliance with the statute as the effect and significance of that error or omission is minimal at most. I believe the record shows that there was substantial compliance by plaintiff with the statute. Each and every medical provider defendant was authorized by the medical authorizations to both release the medical records to and obtain the medical records from each and every other medical provider defendant. To hold otherwise in deciding this motion to dismiss is to ignore part of the complaint, including parts of exhibit B to the complaint, showing what actually was furnished to each of the medical provider defendants. This results in requiring perfection rather than substantial compliance. As the majority correctly notes in quoting our Supreme Court, the statute in question “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.” Stevens, ex rel. Stevens v. Hickman Community Health Care Servs., Inc. 418 S.W.3d 547, 555 (Tenn. 2013). Here, the medical provider defendants were so equipped but chose not to “evaluate the substantive merits of” the plaintiff’s claim early or otherwise. Id. At this motion to dismiss stage, applying the standards relevant to a motion to dismiss, it cannot be disputed that each and every medical provider defendant, by means of all the authorizations furnished by plaintiff to all the medical provider defendants, was equipped with the means to obtain the medical records from each and every medical provider defendant so each could evaluate the merits of plaintiff’s claim. Again, unless the health care providers and their attorneys were illiterate and were unable to read and understand not only the medical authorization form sent to that health care provider, but the notice letter and all attachments to that notice letter as well, it was clear that each medical provider had been authorized both to furnish to and to obtain and receive from
-3- every other medical provider the plaintiff’s medical records, and they knew it. This is, I believe, at least substantial compliance. Since the enactment of the sections of the Health Care Liability Act governing pre-suit notice were adopted by the General Assembly in 2008, this Court has seen case after case brought by Tennessee plaintiffs dismissed without any determination whether the case has any merit. In all of these cases, this Court has yet to be pointed even once to anything supporting the proposition that the purpose, or even a secondary purpose, of HIPAA was to enable medical providers to weaponize the HIPAA provisions concerning medical release authorization forms to the detriment of their patients. Despite that, this is exactly how HIPAA is being used in these lawsuits. Under the Trial Court’s opinion and the majorities’ opinion, this Tennessee plaintiff is just the latest victim in the “game of ‘gotcha’ . . . played by the lawyers.” Buckman v. Mountain States Health Alliance, No. E2017-01766-COA-R3-CV, 2018 WL 3608416, at *8 (Tenn. Ct. App. July 26, 2018), no appl. perm. appeal filed (Swiney, C.J., concurring separately). I, respectfully, dissent from majority’s opinion. I would reverse the decision of the Trial Court.
____________________________________ D. MICHAEL SWINEY, CHIEF JUDGE
-4- lignosia F. 5+10kt E LAW OFFICES OF ERIC B.Fo T'4s1j14 "16 422S.Gay Street, Suite 802 lincernIle,TN 87902
Eric B.Foust,Esq. Telephone:(865)250-5182 lamb/mice L Moynihan,Paralegal Facftile: (885)881-0682
February 19,2016 Rebecca A. Walker,M.D. 9314 Parksvest Boulevard Knoxville,TN 37923
Re Medical Malpractice Claim Notificadon Oar Client Jennifer Lee Parks D.0.11.: 11-29-1973
To• Whom It May Concern: This letter serves se noqficatiunpursaantto TC-A §.2cr-26-121 that a medical malpractice • claim is being Made agaiastyonuiagrotto your nagilgeutcare and treatment ofJennifer Lee Parks on or about February 19,201$,ivitiehresultedin Ms.Pads suffering severe and permanentinjuries. Ms.Puke information is:
Jennifer Lee Parks 5028 TresoottDrive Knoxville,TN37921 . . Date ofBinh: 11-29-1973
PleaseInfo=your insurance canicsiezakor your Ogany.thatyouliavomeeIved this letter as 9601.qiF4**i 130. 0431.000$94.20* . _4t:Oillsert1041/41011 ilecePtinE such *ter is1110tP900***Iiit(041401,146:40*.0_1k0!!tbeltalL Ifsuch isthe case,servioi ofthisina*auoandithe.04e#0007.: !other inchaling,butte a'prn003aerirecer1Wdiptiir " etelie*that this letter cocottes,withtlie lettek-MidiiirWofTek0941011;: or your camel believes it is deficientin anyway,theit.platitmpromPitylog*knOw and ariy defect will be prompdy cured.If we doonot:prOMOY.beertreitjtp***We will asgime that you and your legal Conn*e'vethe letter ecatidirs;wilialhehisvInarespeeta
Thank You for; your prOMMeftetiduntoids mettoet Sincerely,
Eric B.Foust
Enthrones
Ariegmarr -5- LIST OF NAME AND ADDRESS OF ALL HEALTH CAREPROVIDERS TO WHOM THIS NOTICE IS SENT PURSUANT TO TENN.CODE ANN.§29-26- 12,I(A)OF A POTENTIAL CLAIM FOR MEDICAL MALPRACTICE:
Rebecca A.Welker,M.D. 9314ParkwestBoulevard Knoxville,TN 37923
RebeocaA Wallow,MD. 9314RI:rimiest&advent!,Suite 100 KnoxvMe,7N 37923
Pak-west Wonzen's Specialists,PLLC 9314Pinkwest Boulevard,Suite 100 Knoxville,11137923
Parkwest Women's*deli*Pile do Regioned Agent Rebecca A.Walker,M.D. 9472annoy Mend3w Boulevard Knaznille,TN 37931
Parkwest Medical Center 9352Park WestBoulevard . • . Knoxville,TN 37923
Patkwest Medical Center do Registered Agent Yolin T Deppi 1420 CenteipeintBoulevard,Building C Knoxville,TN37932
CovenantHealth 1420 CnaterpolaBonleinid Uzi/wine,IN 37932
CovenantHealth do Registered Agent him T demi 1420Centerpoint Boulevard,BuildingC Knoxville,TN 37932
C.ovenantHealth 100PertSanders West Boulevard KnoxvMION 37022 • •
Fzeit piovider above is being s.entaHIPAA-oompliant method authorization permitting each.toobtaincomplete meted reelirdsfrom 0101106:r. .
-6- Hasse note thata medical provider who sends records to =caw medicalprovider is not authorised to dhows this matter with the requesting provider or hisfher representatives pursuant to T.C.A.§29-26-121,assaid Matta requires only that records be produced. Please also fake note that this 01}TA-complhint authorhatioa does not inclade medical providers that have notreceived Notices in Ibis matter, pursuantto T.C.A.§29-26-121.
Nem= MR# Bmtirotmberfl Date:
For the impose of
I hereby authorize Bahama A.%Wm M.D.to release,use or disclose from the health records et
PaliontNamc Date ofBirth: !conifer' LO6Parks 11-294973 Address: Telephone Number: 5028 Trescott Drive ' 865-450-2994 Knoxville,TN'37921 SS Nu:fhb= ' XXX-XX-XXXX
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Rebecca A.Walker,M.D. Parkwest Medical Center 9314 Patiaaest Boulevard Reestnet Allent Knoxville,TN 37923 John TPTO FPO,ilentatiolotBoulmard, C Kramilla,TN 37932
Redeem A. Walla% D.D. Coved=Had& 9314 Per Beedevard,Saw 100 1420Ceinapnim Boulevard Knoxville,TN 37923 Acuivtle,/N37912
Padrivest Woman's Specialbas,PLLG : Comsat Ninth 9314PathwentBradevstd,&rite.100 100Fort$intders WattBeabsynd Knoxville,IN 37923 Knoxville;TN 37922
ParianatWonam's Specialiste,P1.1.4 consentHealth do Registered Agerm cto11:410190-APEtt Rebecca A.Welker,M.A. !oho T Gappl 9472 ealasy Meadow Boalsysrd 1420tanapalar Boulevard,Building C. Knoxville,TN 37931 Knoxville.TN 37932
ParkwestMedicalraster 9332Park Weer Boulevard &neva*TN 37923
-7- I anderstmdibis Mane is valid dog*the expiration date(s)stated below or,ifI&blank,until "twelve moanfrom the Date ofSignature.I the rightto revokeibis aothoricadon *writing • etanytime.lelrevokethis authodattica,Iinust present written revocationto the Lew Offices of Bric B.Feastordame. Such Revocationwillnotapply to wonthat hai already been rekased in response to this authorizetion,orto myinstance employ when the law provides my homer with the right to contesta claim under iny policy. Once the above Information Is disclosed, It may be modisolosed by the recipient and thelammed= may not be protected byfederal prime),lawsor regoladons. I =demand thelaw Offices ofErie B.Foust may notststrlet my access to healcare trartmeetdoe to mysalateridog or sotswag the use or disclosure or the Information Identified above solve specified Isere.
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-8-