We granted permission to appeal to clarify the role of prejudice in a court’s determination of whether a plaintiff in a health care liability action substantially complied with the statutory pre-suit notice requirements of Tennessee Code Annotated section 29-26-121 (Supp. 2019) (“Section 121”) and to clarify the burdens each party bears when seeking to establish, or to challenge, compliance with Section 121. We hold that prejudice is relevant to the determination of whether a plaintiff substantially complied with Section 121, but it is not a separate and independent analytical element. We also hold that a plaintiff bears the initial burden of either attaching documents to her health care liability complaint demonstrating compliance with Section 121 or of alleging facts in the complaint demonstrating extraordinary cause sufficient to excuse any noncompliance with Section 121. A defendant seeking to challenge a plaintiff’s compliance with Section 121 must file a Tennessee Rule of Civil Procedure 12.02(6) motion to dismiss for failure to state a claim. See Myers v. AMISUB (SFH), Inc., 382 S.W.3d 300, 307 (Tenn. 2012). A defendant’s Rule 12.02(6) motion must include allegations that identify the plaintiff’s noncompliance and explain “the extent and significance of the plaintiff’s errors and omissions and whether the defendant was prejudiced by the plaintiff’s noncompliance.” Stevens ex rel. Stevens v. Hickman Cmty. Health Care Servs., Inc., 418 S.W.3d 547, 556 (Tenn. 2013). One means of satisfying this burden is to allege that a plaintiff’s Section 121(a)(2)(E) medical authorization lacks one or more of the six core elements federal law requires for compliance with the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”). See Pub. L. No. 104-191, 110 Stat. 1936 (1996) (codified as amended in scattered sections of 18, 26, 29, and 42 of the United States Code). Once a defendant files a Rule 12.02 motion that satisfies this prima facie showing, the burden then shifts to the plaintiff either to establish substantial compliance with Section 121—which includes the burden of demonstrating that the noncompliance did not prejudice the defense—or to demonstrate extraordinary cause that excuses any noncompliance. In this case, the defendants met their burden by showing that the plaintiffs’ medical authorizations lacked three of the six core elements federal law requires for HIPAA compliance. This showing shifted the burden to the plaintiffs, and they failed to establish either substantial compliance or extraordinary cause to excuse their noncompliance. As a result of this noncompliance with Section 121(a)(2)(E), the plaintiffs were not entitled to the 120-day extension of the statute of limitations. Therefore, their first lawsuit, filed after the one-year statute of limitations expired, was not “commenced within the time limited by a rule or statute of limitation,” Tenn. Code Ann. § 28-1-105(a) (2017), so the plaintiffs cannot rely on the one-year savings statute to establish the timeliness of this lawsuit. Accordingly, we reverse the judgment of the Court of Appeals and reinstate the trial court’s judgment dismissing the plaintiffs’ health care liability action as time-barred.
Wednesday, April 29, 2020
New Health Care Liability Action Opinion: Tennessee Supreme Court Reinstates Trial Court's Dismissal of Action Due to the Claim Being Time-barred for Failing to Provide Defendants with HIPAA-compliant Authorization for the Release of Medical Records in Prior Suit That Was Voluntarily Dismissed as of Right
The Tennessee Supreme Court issued its opinion today in Martin v. Rolling Hills Hosp., LLC, No. M2016-02214-SC-R11-CV (Tenn. Apr. 29, 2020). The syllabus from the slip opinion reads:
Here is a link to the majority opinion:
Here is a link to Justice Kirby's separate opinion concurring in part and dissenting in part:
NOTE: This post is related to a prior blog post from July 3, 2018 about this case. To wit: http://theduncanlawfirm.blogspot.com/2018/07/new-health-care-liability-action.html. Pay close attention to the note in that post. While I am not aware of the issue being litigated in any court construing Tennessee law, I contend that a defendant can never be "prejudiced" by not getting a HIPAA-complaint authorization to release medical records because providers are allowed to exchanged between and among themselves and others medical records as part of their "health care operations." Ergo, if they can access the records, no prejudice; no prejudice means no dismissal.