New Health Care Liability Action Opinion: Trial Court's Denial of Motions to Dismiss Reversed on Appeal; Claim Determined to Be Time-barred Due to Ineffective Presuit Notice (Defective (Partially Blank) HIPAA Auths.)

The Tennessee Court of Appeals recently issued its opinion in Roberts v. Wellmont Health Systems, No. E2017-00845-COA-R9-CV (Tenn. Ct. App. Jul. 5, 2018).  The syllabus from the slip opinion reads as follows:

This interlocutory appeal involves a health care liability action. Plaintiff gave written presuit notice of her claim to all potential defendants. See Tenn. Code Ann. § 29-26-121(c) (Supp. 2013). Later, she filed a complaint against the same defendants. In doing so, she relied upon the 120-day extension of the one-year statute of limitation as provided for in Tenn. Code Ann. § 29-26-121(c). Each defendant filed a motion to dismiss. Prior to a hearing on those motions, plaintiff voluntarily dismissed her complaint. Plaintiff subsequently served each defendant with new pre-suit notice and later re-filed her complaint in reliance on the one-year savings statute, Tenn. Code Ann. § 28-1-105, and the 120-day extension pursuant to § 29-26-121(c). Defendants moved to dismiss the second complaint. The trial court denied defendants’ motions. In doing so, the court took “judicial notice” of the practice of some attorneys in the Second Judicial District of providing their adversaries with “blank” authorizations. The court ultimately held that the medical authorizations in the first pre-suit notice were not only HIPAA compliant, but “overly” so. The trial court concluded that, because the first pre-suit notice was, according to the court, valid, the first-filed complaint was timely filed. Upon the request of the defendants, the court granted them permission to pursue an interlocutory appeal pursuant to the provisions of Tenn. R. App. P. 9. We likewise granted defendants permission to file a Rule 9 discretionary appeal. We reverse the judgment of the trial court and dismiss the plaintiff’s suit with full prejudice.

Here is a link to the slip opinion:

http://www.tncourts.gov/sites/default/files/desiree_dawn_roberts_et_al._v._wellmont_health.pdf

NOTE: As noted in this opinion, a partially blank HIPAA-compliant authorization is not HIPAA-effective because they do not contain the core elements required of medical records authorizations.  However, are HIPAA-compliant authorizations even needed in such instances, or, is the sharing of a patient's protected health information allowed under HIPAA's "health care operations" provisions?  See the note in my prior blog post for the answer.