Trevor Travis v. Cookeville Regional Medical Center ( 2016 )


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  •                IN THE COURT OF APPEALS OF TENNESSEE
    AT NASHVILLE
    July 12, 2016 Session
    TREVOR TRAVIS v. COOKEVILLE REGIONAL MEDICAL CENTER, ET
    AL.
    Appeal from the Circuit Court for Putnam County
    No. 2015CV156      Amy V. Hollars, Judge
    ___________________________________
    No. M2015-01989-COA-R3-CV Filed September 21, 2016
    ___________________________________
    In this health care liability case, the defendants moved to dismiss the complaint on the
    grounds that the plaintiff failed to comply with 
    Tenn. Code Ann. § 29-26-121
    , part of
    Tennessee‟s Health Care Liability Act. Specifically, the defendants argue that the
    plaintiff failed to provide a statement in the pleadings that he complied with 
    Tenn. Code Ann. § 29-26-121
    (a), failed to file, with the complaint, documentation demonstrating
    compliance with 
    Tenn. Code Ann. § 29-26-121
    (a), failed to file, with the complaint, an
    affidavit of the person who mailed pre-suit notice to the defendants, and failed to provide
    a HIPAA compliant medical authorization form. The trial court dismissed the case. We
    have reviewed the record and find that the plaintiff failed to substantially comply with
    
    Tenn. Code Ann. § 29-26-121
    (b). We affirm the judgment of the trial court.
    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
    ANDY D. BENNETT, J., delivered the opinion of the court, in which FRANK G. CLEMENT,
    P.J., M.S., and W. NEAL MCBRAYER, J., joined.
    James Richard Wiggington and John Terence Tennyson, Nashville, Tennessee, for the
    appellant, Trevor Travis.
    Michael A. Geracioti and Linda Nathenson, Nashville, Tennessee, for the appellee, Brian
    Samuel, M.D. and Convenient Care Clinic.
    Cynthia A. Wilson, Cookeville, Tennessee, for the appellee Cookeville Regional Medical
    Center.
    Daniel H. Rader, III, Cookeville, Tennessee, for the appellee, Keith Hill, M.D.
    James H. London, Andrew R. Tillman, and Jeremey R. Goolsby, Knoxville, Tennessee,
    for the appellee, Pierce Alexander.
    Phillip North and Renee Levay Stewart, Nashville, Tennessee, for the appellee, Frank
    Perry, M.D.
    OPINION
    FACTUAL AND PROCEDURAL HISTORY1
    This is a health care liability action2 arising from the medical treatment of Trevor
    Travis at Cookeville Regional Medical Center (“CRMC”) and at the Convenient Care
    Clinic (“CCC”) in Cookeville, Tennessee. On February 24, 2014, Mr. Travis was
    admitted to the CRMC with flu-like symptoms and a 104-degree fever. He was screened
    for sepsis by the attending physician, Dr. Keith Hill, and was discharged after Dr. Hill
    diagnosed him with a viral infection and myalgia. Two days later, Mr. Travis returned to
    the CRMC emergency room and was diagnosed with sepsis by Dr. Tatiana Chestnut. Dr.
    Chestnut released Mr. Travis to Dr. Pierce Alexander in the critical care unit, who
    diagnosed him with acute renal failure and ordered emergency surgery to treat sepsis.
    Thereafter, Mr. Travis‟s medical chart was “confused” with the chart of another patient
    who had a history of drug abuse. Due to this charting error, Mr. Travis was treated as a
    methamphetamine addict and was improperly medicated following surgery.
    Mr. Travis was released from the CRMC on March 4, and on or about March 6,
    2014, he was seen by CRMC hospitalist, Dr. Frank Perry. Relying on the medical
    records which misidentified Mr. Travis as a drug addict, Dr. Perry “admonished” Mr.
    Travis about his drug addiction in front of Mr. Travis‟s family members. Between March
    10 and March 20, Mr. Travis visited the CCC and was denied treatment by Dr. Brian
    Samuel because, due to the erroneous medical records, Dr. Samuel thought Mr. Travis
    was shopping for drugs. On March 20, 2014, Dr. Alexander “released” a letter to Mr.
    Travis acknowledging that “there was confusion with regard to his medical record
    number” and apologized for “any emotional or insurance issues this may have caused.”
    On February 20, 2015, Mr. Travis‟s attorney sent letters providing pre-suit notice
    to Dr. Alexander, Dr. Hill, Dr. Perry, CRMC, CCC, and Dr. Samuel notifying them that
    he was “asserting a potential claim for medical malpractice . . . no sooner than sixty days
    1
    The facts presented herein are taken from allegations in the complaint filed by Mr. Travis.
    Because this case requires us to review the trial court‟s grant of a Tenn. R. Civ. P. 12.02(6) motion to
    dismiss, we must, for purposes of this appeal, presume that the allegations contained in the complaint are
    true. See Lind v. Beaman Dodge, Inc., 
    356 S.W.3d 889
    , 894 (Tenn. 2011).
    2
    In 2012, the term “health care liability” replaced the term “medical malpractice” in the
    Tennessee Code. Rajvongs v. Wright, 
    432 S.W.3d 808
    , 809 n.1 (Tenn. 2013).
    -2-
    from the issuance of this notice.” On June 24, 2015, Mr. Travis filed a “Complaint for
    Medical Malpractice, Slander and Intentional Infliction of Emotional Distress” against
    the CRMC, Dr. Hill, Dr. Perry, Dr. Alexander, the CCC, and Dr. Samuel. The complaint
    included seven separate causes of action: 1) “negligent diagnosis” against CRMC and Dr.
    Hill; 2) “negligence in confusing Mr. Travis‟s medical records” against CRMC, Dr.
    Alexander, and Dr. Perry; 3) “negligence in treating Mr. Travis based upon false medical
    records” against CRMC, Dr. Alexander, Dr. Perry, and Dr. Samuel; 4) “negligence in
    publicly and repeatedly making accusations against Mr. Travis based upon altered
    medical charts” against CRMC, Dr. Alexander, Dr. Perry, and Dr. Samuel; 5)
    “negligence in failing to identify and correct false information in Mr. Travis‟s medical
    records” against CRMC, Dr. Alexander, and Dr. Perry; 6) libel against CRMC staff, Dr.
    Perry, Dr. Alexander, and Dr. Samuel; and 7) intentional infliction of emotional distress
    against Dr. Perry, Dr. Alexander, Dr. Samuel, and CRMC staff. Attached to his
    complaint was a certificate of good faith.
    Beginning with the CRMC on August 3, 2015, each defendant filed a motion to
    dismiss arguing, inter alia, that Mr. Travis failed to comply with the requirements of
    
    Tenn. Code Ann. § 29-26-121
    (b), for failing to state in the pleadings that he complied
    with 
    Tenn. Code Ann. § 29-26-121
    (a) and failing to provide documentation specified in §
    29-26-121(a)(2). On August 17, 2015, Mr. Travis filed a Motion for Leave to Amend
    Complaint in an effort to comply with 
    Tenn. Code Ann. § 29-26-121
    . On August 31,
    2015, Mr. Travis filed a supplement to the complaint with several attachments purporting
    to demonstrate compliance with 
    Tenn. Code Ann. § 29-26-121
    . Mr. Travis‟s counsel
    attached an affidavit which states as follows:
    1. I personally mailed the pre-suit notice to each named defendant in
    compliance with the T.C.A. § 29-26-121.
    2. I mailed each pre-suit notice to the addresses listed on the certificate of
    mailing from the United States Postal Service.
    3. I included a HIP[A]A Compliant Authorization form for the Release of
    Patient Information.
    4. I mailed said notice by certified mail.
    5. I received Domestic Return Receipts signed and received [by] each
    named defendant.
    Copies of certified mail receipts for each defendant were attached.3 Copies of domestic
    return receipts were attached for each defendant with the exception of Dr. Samuel.4 Mr.
    3
    There were two United States Postal Service Certified Mail Receipts for Pierce Alexander
    (different addresses for each) and one for Mark Pierce. It is unclear from the record how Mark Pierce is
    involved in the suit.
    4
    Copies of a domestic return receipt for Mark Pierce and Jeffrey S. Moore were attached to the
    supplemental complaint. It is unclear how Mark Pierce or Jeffrey Moore is involved in the suit.
    -3-
    Travis‟s counsel attached letters dated February 20, 2015 that were mailed to each
    defendant providing notice, pursuant to 
    Tenn. Code Ann. § 29-26-121
    (a), that Mr. Travis
    “planned to assert a potential claim for medical malpractice.” The letters went on to
    state:
    Please find in the envelope with this letter a HIP[A]A authorization
    permitting the provider receiving this notice to obtain medical records from
    other providers being sent a notice. Each provider has been given
    authorization to release medical records to other providers being sent a
    notice.
    Attached to the letters was a document entitled, “HIPAA[5] Compliant Authorization for
    the Release of Patient Information Pursuant to 45 CFR 164.508.” The HIPAA
    authorizations listed the name of the defendant and the patient‟s name, date of birth, and
    social security number; however, the patient signature line was left blank. The CCC,
    CRMC, Dr. Samuel, and Dr. Pierce filed motions in opposition to Mr. Travis‟s motion to
    amend the complaint.
    A hearing on the motions was held on September 4, 2015. Mr. Travis argued that
    he initially sent signed copies of the HIPAA authorization attached to the February 20,
    2015 letters, but that he did not retain a copy of those signed HIPAA authorization forms
    for his records. He asserted that the supplements to his complaint constituted substantial
    compliance with 
    Tenn. Code Ann. § 29-26-121
    (a) and (b). On September 25, 2015, the
    trial court entered an Order on Defendants‟ Motions to Dismiss and Plaintiff‟s Motion to
    Amend Complaint. The court dismissed Mr. Travis‟s claims of libel and slander with
    prejudice as being barred by the applicable statute of limitations.6 With respect to the
    health care liability claims, the court determined that Mr. Travis failed to substantially
    comply with 
    Tenn. Code Ann. § 29-26-121
    . Specifically, the court stated:
    (a) plaintiff failed to state in the Complaint that plaintiff has complied
    [with] T.C.A. § 29-26-121(a); (b) plaintiff failed to attach to the Complaint
    items as required by T.C.A. § 29-26-121(b), including the failures to attach
    a certificate of mailing from the United States Postal Service stamped with
    the date of mailing, an affidavit of the party mailing the pre-suit notice
    establishing that the specified pre-suit notice was timely mailed, a copy of
    the required pre-suit notice letter sent to the defendants and a copy of the
    required HIPAA compliant medical authorization sent to the defendants[.]
    5
    HIPAA is an acronym for the Health Insurance Portability and Accountability Act of 1996.
    6
    Mr. Travis does not appeal this holding.
    -4-
    ...
    Plaintiff‟s failures to comply with T.C.A. § 29-26-121 cannot be
    remediated by amendment.
    Mr. Travis appeals, asserting that the trial court erred in dismissing his case.7
    STANDARD OF REVIEW
    The Tennessee Supreme Court has observed:
    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.
    Myers v. AMISUB (SFH), Inc., 
    382 S.W.3d 300
    , 307 (Tenn. 2012). We review the trial
    court‟s dismissal of the complaint de novo with no presumption of correctness.
    Thurmond v. Mid-Cumberland Infectious Disease Consultants, PLC, 
    433 S.W.3d 512
    ,
    516 (Tenn. 2014). “In analyzing the legal sufficiency of the complaint, we must presume
    that all factual allegations in the complaint are true and construe them in favor of the
    plaintiff.” Foster v. Chiles, 
    467 S.W.3d 911
    , 914 (Tenn. 2015) (citing Lind v. Beaman
    Dodge, Inc., 
    356 S.W.3d 889
    , 894 (Tenn. 2011)).
    This appeal also involves statutory construction, which is a question of law we
    review de novo, with no presumption of correctness. Thurmond, 433 S.W.3d at 516-17.
    ANALYSIS
    We begin our analysis with 
    Tenn. Code Ann. § 29-26-121
    (a)(1), the health care
    7
    At oral argument, Mr. Travis conceded that he did not intend to pursue the appeal against Dr.
    Hill. Therefore, Dr. Hill is no longer a party to the appeal.
    -5-
    liability pre-suit notice statute requiring plaintiffs to give defendants written notice that a
    health care liability action is forthcoming:
    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.
    
    Tenn. Code Ann. § 29-26-121
    (a)(1). “Pre-suit notice is mandatory, and section 29-26-
    121(a)(1) demands strict compliance.” Arden v. Kozawa, 
    466 S.W.3d 758
    , 762-63 (Tenn.
    2015) (citing Myers, 382 S.W.3d at 309)).
    The written, pre-suit notice “shall include”:
    (A) The full name and date of birth of the patient whose treatment is at
    issue;
    (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)(A)-(E). The information required by subsections 29-
    26-121(a)(2)(A)-(C) “facilitate[s] early resolution of healthcare liability claims.” Stevens
    ex rel. Stevens v. Hickman Cmty. Health Care Servs., Inc., 
    418 S.W.3d 547
    , 554 (Tenn.
    2013). Subsections (D) and (E) enable potential defendants to evaluate the merits of a
    potential plaintiff‟s claim and to gauge the comparative fault of other potential
    defendants. 
    Id.
     Unlike the pre-suit notice requirement of 
    Tenn. Code Ann. § 29-26
    -
    121(a)(1), the content requirements of 
    Tenn. Code Ann. § 29-26-121
    (a)(2) “are not
    mandatory, but directory, and can be achieved through substantial compliance.” Arden,
    
    466 S.W.3d at
    763 (citing Thurmond, 433 S.W.3d at 520; Stevens, 418 S.W.3d at 555).
    Tennessee Code Annotated section 29-26-121(b) requires that:
    If a complaint is filed in any court alleging a claim for health care
    liability, the pleadings shall state whether each party has complied with
    -6-
    subsection (a) and shall provide the documentation specified in subdivision
    (a)(2). The court may require additional evidence of compliance to
    determine if the provisions of this section have been met. The court has
    discretion to excuse compliance with this section only for extraordinary
    cause shown.
    
    Tenn. Code Ann. § 29-26-121
    (b) (emphasis added).
    Tennessee Code Annotated section 29-26-121(a)(3) describes the proof that is
    sufficient to establish that the required pre-suit notice was accomplished. If a plaintiff
    chooses to mail the pre-suit notice to the health care provider, the requirement of pre-suit
    notice “is deemed satisfied if, within the statutes of limitations and statutes of repose . . .
    one of the following occurs, as established by the specified proof of service, which shall
    be filed with the complaint:”
    (B) Mailing of the notice:
    (i) To an individual health care provider at both the address listed for
    the provider on the Tennessee department of health web site and the
    provider‟s current business address, if different from the address
    maintained by the Tennessee department of health; provided, that, if
    the mailings are returned undelivered from both addresses, then,
    within five (5) business days after receipt of the second undelivered
    letter, the notice shall be mailed in the specified manner to the
    provider‟s office or business address at the location where the
    provider last provided a medical service to the patient; or
    (ii) To a health care provider that is a corporation or other business
    entity at both the address for the agent for service of process, and the
    provider‟s current business address, if different from that of the
    agent for service of process; provided, that, if the mailings are
    returned undelivered from both addresses, then, within five (5)
    business days after receipt of the second undelivered letter, the
    notice shall be mailed in the specified manner to the provider‟s
    office or business address at the location where the provider last
    provided a medical service to the patient.
    (4) Compliance with subdivision (a)(3)(B) shall be demonstrated by filing a
    certificate of mailing from the United States postal service stamped with the
    date of mailing and an affidavit of the party mailing the notice establishing
    that the specified notice was timely mailed by certified mail, return receipt
    requested. A copy of the notice sent shall be attached to the affidavit. It is
    not necessary that the addressee of the notice sign or return the return
    -7-
    receipt card that accompanies a letter sent by certified mail for service to be
    effective.
    
    Tenn. Code Ann. § 29-26-121
    (a)(3)-(4) (emphasis added).               Like the content
    requirements, the affidavit requirement of 
    Tenn. Code Ann. § 29-26-121
    (a)(4) and the
    manner and proof of service requirements of the pre-suit notice statute “can be achieved
    through substantial compliance.” Arden, 
    466 S.W.3d at
    763 (citing Thurmond, 433
    S.W.3d at 520; Stevens, 418 S.W.3d at 555).
    Turning to the case at hand, we must determine whether the procedural
    shortcomings of Mr. Travis‟s filings survive the defendants‟ motions to dismiss. Here,
    Mr. Travis‟s complaint was deficient in several respects. Mr. Travis did not include a
    statement in the body of the complaint or elsewhere in the pleadings8 that he complied
    with subsection (a) of 
    Tenn. Code Ann. § 29-26-121
     as required by 
    Tenn. Code Ann. § 29-26-121
    (b). The complaint failed to include documentation demonstrating compliance
    with 
    Tenn. Code Ann. § 29-26-121
    (a)(2) as is required by 
    Tenn. Code Ann. § 29-26
    -
    121(a)(3). Specifically, Mr. Travis did not attach copies of the pre-suit notice letters he
    sent to the health care providers listing the information described by 
    Tenn. Code Ann. § 29-26-121
    (a)(A)-(D), nor did he attach a copy of a HIPAA compliant medical
    authorization form. Mr. Travis did not include certificates of mailing from the United
    States Postal Service stamped with the date of mailing as required by 
    Tenn. Code Ann. § 29-26-121
    (a)(4). Finally, he did not attach an affidavit establishing that the notice was
    8
    This Court has previously examined the definition of “pleadings,” explaining:
    The term “pleadings” in the modern context usually refers to the complaint and any
    answer or response filed by the defendant. As noted in Bryan Garner, A DICTIONARY OF
    MODERN LEGAL USAGE 667 (2nd ed.1995):
    [A] pleading should be distinguished from court paper, which is a
    broader term. Motions, briefs, and affidavits are court papers, not
    pleadings. Examples of pleadings are complaints, petitions, counter-
    claims, and answers. A late 19th-century writer‟s explanation shows that
    this usage is time-honored: “Pleadings are the formal allegations of the
    parties of their respective claims and defenses.” Edwin E. Bryant, THE
    LAW OF PLEADING UNDER THE CODES OF CIVIL PROCEDURE 178 (1899).
    Id.; accord BLACK‟S LAW DICTIONARY (7th ed.1999) (defining “pleading,” in relevant
    part, as “[a] formal document in which a party to a legal proceeding . . . sets forth or
    responds to allegations, claims, denials, or defenses.”).
    Shockley v. Mental Health Coop., Inc., 
    429 S.W.3d 582
    , 591-92 (Tenn. Ct. App. 2013). Mr. Travis‟s
    counsel submitted an affidavit verifying that he timely mailed pre-suit notice certified mail, return receipt
    requested. This affidavit is not a pleading, thus we cannot consider it in determining whether Mr. Travis
    strictly complied with 
    Tenn. Code Ann. § 29-26-121
    (b).
    -8-
    timely mailed by certified mail, return receipt requested. See 
    Tenn. Code Ann. § 29-26
    -
    121(a)(4).
    Approximately two months after filing his complaint, following CRMC‟s motion
    to dismiss, Mr. Travis attempted to cure these defects by filing supplemental documents.
    He filed the copies of the pre-suit notice letters he sent to all of the defendants on
    February 20, 2015. He submitted copies of the certified mail receipts and return receipts,
    and he included an affidavit verifying that he mailed pre-suit notice in compliance with
    
    Tenn. Code Ann. § 29-26-121
    . Notably absent from these subsequently filed documents
    was a signed HIPAA form. We will address the procedural defects below.
    A. Dr. Alexander’s Pre-Suit Notice
    As an initial matter, Dr. Alexander asserts that he never received pre-suit notice.
    Mr. Travis filed, in his supplemental documents, U.S. Postal Service Certified Mail
    Receipts that were sent to Dr. Pierce Alexander at two different addresses. Domestic
    Return Receipts, both signed by “Ed Hopkins,” were sent back to confirm the mailings
    were delivered to the intended addresses. Dr. Alexander does not contend that the letters
    were mailed to incorrect addresses, and Dr. Alexander has failed to provide any alternate
    business address or any other address listed on the Tennessee Department of Health
    website that Mr. Travis should have used.9 Pursuant to 
    Tenn. Code Ann. § 29-26
    -
    121(a)(4), “[i]t is not necessary that the addressee of the notice sign or return the return
    receipt card that accompanies a letter sent by certified mail for service to be effective.”
    Mr. Travis complied with 
    Tenn. Code Ann. § 29-26-121
    (a)(3)(B)(i) by sending the pre-
    suit notice certified mail, return receipt requested, and we have nothing in the record to
    suggest the addresses he used were incorrect. Therefore, the requirement of pre-suit
    notice “is deemed satisfied,” 
    Tenn. Code Ann. § 29-26-121
    (a)(3), and Dr. Alexander‟s
    argument must fail.
    B. HIPAA Compliant Medical Authorization
    Next, we consider the unsigned HIPAA form that Mr. Travis filed with the
    supplemental documents. We have concluded that this issue is dispositive of the case. In
    Stevens, our Supreme Court discussed the requirement for a HIPAA compliant medical
    authorization as follows:
    9
    Along with his motion to dismiss, Dr. Alexander provided an affidavit which states, in relevant
    part, as follows:
    Prior to the filing of this lawsuit, I do not recall receiving any notice of the
    plaintiff‟s potential claims against me, nor do I recall receiving an authorization to obtain
    any of the Plaintiff‟s medical records prior to the filing of this lawsuit. As such, I did not
    investigate any of the Plaintiff‟s claims before suit was filed.
    -9-
    
    Tenn. Code Ann. § 29-26-121
    (a)(2)(E) provides that a plaintiff “shall”
    include in the pre-suit notice a “HIPAA compliant medical authorization
    permitting the provider receiving the notice to obtain complete medical
    records from each other provider being sent a notice.” Federal regulations
    state that a HIPAA compliant authorization must include the following six
    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.
    (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.
    Stevens, 418 S.W.3d at 555-56 (quoting 
    45 C.F.R. § 164.508
    (c)(1)). Tennessee Code
    Annotated section 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.” 
    Id. at 555
    .
    It is undisputed that the unsigned HIPAA form Mr. Travis submitted with his
    supplemental documents failed to satisfy the sixth compliance requirement mandated by
    HIPAA. See 
    45 C.F.R. § 164.508
    (c)(1)(vi). In Stevens, our Supreme Court held that,
    “[n]on-substantive errors and omissions” will not “derail a healthcare liability claim” so
    long as the medical authorization provided is “sufficient to enable defendants to obtain
    and review a plaintiff‟s relevant medical records.” Stevens, 418 S.W.3d at 555. The
    unsigned HIPAA form proffered by Mr. Travis would not “permit[] 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)(E). However, Mr. Travis contends
    that the HIPAA form he initially sent to the defendants along with the pre-suit notice was
    signed. In a sworn affidavit, Mr. Travis‟s counsel stated that he “included a HIP[A]A
    Compliant Authorization form for the Release of Patient Information” with the pre-suit
    notice letters he sent to each defendant. In his argument at the hearing on the motion to
    - 10 -
    dismiss, he reiterated that the HIPAA forms he sent were signed by Mr. Travis, but he
    failed to retain a copy of the signed forms for his records and was thus unable to produce
    the signed forms.10 Dr. Samuel and CCC argue in their brief that “[p]re-suit notice
    provided to Dr. Samuel and the [CCC] by the plaintiff in this case was defective because
    the medical authorization forms allegedly supplied to them were not signed by Mr.
    Travis, and were thus not HIPAA compliant.” CRMC asserts that Mr. Travis “remains in
    non-compliance with [
    Tenn. Code Ann. § 29-26-121
    (b)] because he has not filed a
    HIPAA compliant form . . . .” We have no proof before us, other than Mr. Travis‟s
    counsel‟s late-filed affidavit and argument that the HIPAA form sent to each defendant
    was signed.
    Mr. Travis‟s counsel‟s failure to practice good record keeping has placed us in a
    predicament that 
    Tenn. Code Ann. § 29-26-121
    (b) was put in place to avoid. Tennessee
    Code Annotated section 29-26-121(b) requires:
    If a complaint is filed in any court alleging a claim for health care
    liability, the pleadings shall state whether each party has complied with
    subsection (a) and shall provide the documentation specified in subdivision
    (a)(2). The court may require additional evidence of compliance to
    determine if the provisions of this section have been met. The court has
    discretion to excuse compliance with this section only for extraordinary
    cause shown.
    Subdivision (a)(2)(E) requires the plaintiff to provide a HIPAA compliant authorization
    form sufficient to enable defendants to obtain and review the plaintiff‟s relevant medical
    records. Mr. Travis has failed to provide documentation demonstrating that he complied
    with 
    Tenn. Code Ann. § 29-26-121
    (a)(2)(E). Moreover, Mr. Travis did not include a
    statement in the body of the complaint or elsewhere in the pleadings that he complied
    with subsection (a) of 
    Tenn. Code Ann. § 29-26-121
     as required by 
    Tenn. Code Ann. § 29-26-121
    (b).
    Mr. Travis argues that the facts presented here are “substantially similar” to our
    Supreme Court‟s opinion in Thurmond, 433 S.W.3d at 516. In Thurmond, the plaintiff‟s
    complaint stated that counsel had complied with the pre-suit notice provisions of 
    Tenn. Code Ann. § 29-26-121
    (a); however, plaintiff inadvertently failed to attach to the
    10
    Mr. Travis‟s counsel stated, at the hearing on the motion to dismiss that:
    [The HIPAA releases] that went out were signed. If you would like additional
    proof to that, I don‟t believe that CRMC has made any motion that they did not receive
    notice and has actually admitted receiving notice. And if they would – could present
    their copy of the HIPAA-compliant release form, that would serve to show Your Honor
    that the release form is in fact signed, as are all of them that were sent out.
    - 11 -
    complaint a disc containing documentation demonstrating compliance. Thurmond, 433
    S.W.3d at 514. Five days later, the plaintiff filed a disc containing images of the pre-suit
    notice, a certificate of mailing stamped with the date plaintiff‟s counsel sent defendants
    notice by certified mail, and return receipt cards including the signature of the person
    who accepted service of pre-suit notice for each defendant. Id. The disc did not contain
    an affidavit of the party mailing the notice establishing that notice was timely mailed. Id.
    at 515, see 
    Tenn. Code Ann. § 29-26-121
    (a)(4). The defendants filed an answer, alleging
    that the plaintiff‟s “failure to file with the complaint an affidavit „setting out the proof of
    service of the statutory [pre-suit] notice‟ amounted to non-compliance” with the pre-suit
    notice statutes and required dismissal of the action. 
    Id. at 514-15
    . Approximately three
    weeks later, the plaintiff‟s attorney filed the requisite affidavit. 
    Id. at 515
    .
    Our Supreme Court set out to determine whether plaintiff‟s failure to file, with the
    complaint, “„an affidavit of the party mailing the notice establishing that the specified
    notice was timely mailed by certified mail, return receipt requested‟” required dismissal
    of the complaint. 
    Id. at 520
     (quoting 
    Tenn. Code Ann. § 29-26-121
    (a)(4)). The Supreme
    Court began its analysis by examining Myers and Stevens and summarized the pertinent
    principles articulated in both cases:
    (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.
    Id. The Court agreed with the defendants that the plain language of the notice statutes
    requires that an affidavit be filed with the complaint. Id. However, the Court held that
    the requirement was subject to substantial compliance, rather than strict compliance. Id.
    at 521. The Court ultimately held:
    As this case clearly illustrates, where pre-suit notice was timely served,
    insisting upon strict compliance with the statute requiring the filing of an
    affidavit “with the complaint,” 
    Tenn. Code Ann. § 29-26-121
    (a)(3), is not
    “essential to avoid prejudicing an opposing litigant.” Stevens, 418 S.W.3d
    at 555. As already stated, Defendants have not made any claim of prejudice
    resulting from Plaintiff‟s failure to file the affidavit with the complaint.
    Thus, substantial compliance with the statutory affidavit requirement will
    suffice.
    Id. at 520-2 (emphasis in original).
    - 12 -
    The facts before us are distinguishable from Thurmond in several respects. In
    Thurmond, the plaintiff included a statement in the pleadings that it was in compliance
    with the pre-suit notice provisions of 
    Tenn. Code Ann. § 29-26-121
    (a). 
    Id. at 514
    . Mr.
    Travis‟s pleadings lack such a statement. In Thurmond, five days after filing the
    complaint, the plaintiff submitted documentation demonstrating it was fully in
    compliance with the pre-suit notice statute. 
    Id.
     Here, the materials Mr. Travis submitted
    two months after filing his complaint failed to show he had complied with 
    Tenn. Code Ann. § 29-26-121
    (a) because the HIPAA form he proffered to the court was unsigned.
    As noted above, following a defendant‟s Tenn. R. Civ. P. 12.02 challenge to a
    complaint‟s compliance with 
    Tenn. Code Ann. § 29-26-121
    , “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.” Myers, 382 S.W.3d at 307. Mr. Travis has not met this burden
    because he failed to demonstrate that he complied with the requirement that written, pre-
    suit notice include “[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)(E). Mr. Travis‟s procedural
    shortcomings were numerous and his failure to retain a copy of the signed HIPAA
    authorization form is significant. See Stevens, 418 S.W.3d at 556. Therefore, he did not
    substantially comply with 
    Tenn. Code Ann. § 29-26-121
    (b), and the trial court did not err
    in dismissing his case.11
    C. Extraordinary Cause
    Finally, we consider whether Mr. Travis‟s failure to comply with 
    Tenn. Code Ann. § 29-26-121
    (b) should be excused for extraordinary cause. Tennessee Code Annotated
    section 29-26-121(b) provides that, “a court has discretion to excuse compliance with this
    section only for extraordinary cause shown.” Mr. Travis‟s counsel has not alleged any
    extraordinary reason for his failure to provide a medical authorization in compliance with
    
    Tenn. Code Ann. § 29-26-121
    (a)(2)(E). He simply states that he failed to retain a copy of
    the allegedly signed form. This oversight does not rise to the level of extraordinary
    cause.
    11
    Because we have determined that Mr. Travis failed to substantially comply with 
    Tenn. Code Ann. § 29-26-121
    (b), we need not address CRMC‟s argument that courts must strictly apply the health
    care liability statute‟s provisions when a governmental entity is a defendant.
    - 13 -
    CONCLUSION
    In sum, Mr. Travis failed to substantially comply with the requirements of 
    Tenn. Code Ann. § 29-26-121
    (b), and his noncompliance was not excused by extraordinary
    cause. The judgment of the trial court is affirmed. Costs of appeal are assessed against
    the appellant, for which execution may issue if necessary.
    _________________________
    ANDY D. BENNETT, JUDGE
    - 14 -
    

Document Info

Docket Number: M2015-01989-COA-R3-CV

Judges: Judge Andy D. Bennett

Filed Date: 9/20/2016

Precedential Status: Precedential

Modified Date: 9/22/2016