Jennifer Moore-Pitts v. Carl A. Bradley, DDA, MAGD

FILED

DEC - 9 2019
IN THE COURT OF APPEALS OF TENNESSEE
Clerk of the Appellate Courts
AT KNOXVILLE Rec'd by
October 15, 2019 Session

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 ofthe names and addresses ofthe 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. Moore-
Pitts information and the dates of treatment. The authorization also contains a space for
the name ofthe 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 pre-
suit 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 HIPAA-
compliant 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 oftheir
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 ofthe 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 ofthe 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 ofthe 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 HIPAA-
compliant 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 plaintiffs 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 ofa 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 pre-
suit 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 ofthe 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. Moore-
Pitts'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 ofthe statute
oflimitations 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 HIPAA-
compliant 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.

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