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Friday, May 15, 2020

New Health Care Liability Action Opinion: Trial Court's Dismissal Upheld on Appeal Due to Invalid Authorization for the Presuit Release of Medical Records (Possible Erroneous Decision)

The Tennessee Court of Appeals released its opinion yesterday in Hancock v. BJR Enterprises, LLC, No. E2019-01158-COA-R3-CV (Tenn. Ct. App. May 14, 2020).  The syllabus from the slip opinion reads:
This is a healthcare liability action. In her medical authorizations, the plaintiff left blank lines as to who was authorized to receive the patient’s records from the medical providers and others receiving notice. The defendants claimed that the authorizations were not HIPAA-compliant, as required by Tennessee Code Annotated section 29-26- 121(a)(2)(E). The plaintiff responded that by construing the pre-suit notice packet materials as one cohesive document, all of the elements required by the statute are present and that the defendants had at their disposal all of the information necessary to obtain the patient’s medical records. The plaintiff further asserted that the failure of the defendants to attempt to obtain the records precludes any demonstration of prejudice to them. The trial court determined that the plaintiff’s statutory notice failed to substantially comply with the requirements of Tennessee Code Annotated section 29-26-121. The plaintiff appeals. We affirm. 
(Footnote omitted).

The majority opinion is at this link:

Here is Judge Swiney's concurring opinion:

NOTE: The gist of this opinion is that the defendants could not obtain the patient's relevant medical records due to a medical records authorization that was "defective" under HIPAA.  Hancock v. BJR Enterprises, LLC, No. E2019-01158-COA-R3-CV, slip op. at 4–12 (Tenn. Ct. App. May 14, 2020).

The opinion reads in pertinent part:
The specific purpose of subsection (a)(2)(E) is not to provide a defendant with notice of a potential claim; rather, . . . the subsection “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.”  This investigatory tool advances the overall goal of section 29-26-121(a), which is to allow litigants the ability to engage in pre-suit negotiation and settlement so as to reduce litigation costs and resolve meritorious claims at the outset. . . .
. . . .
[H]owever, “[b]ecause HIPAA itself prohibits medical providers from using or disclosing a plaintiff’s medical records without a fully compliant authorization form, 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 5 (emphasis added) (internal citations omitted).

The last paragraph from the quoted passage appears to be in error since the defendants could have shared and obtained the relevant medical records as part of their "health care operations."  Tony Duncan, New Health Care Liability Action Opinion: Trial Court's Dismissal of Action as Time-barred Overturned on Appeal, TONY DUNCAN L. BLOG, Note (Jul. 3, 2018, 3:58 PM),

I hope the Tennessee Supreme Court takes a look at this one and reverses it because that is what needs to be done as can be discerned from the note in my July 3, 2018 blog post.  

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