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:

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.

Here is a link to the majority opinion:

http://www.tncourts.gov/sites/default/files/martin.majopn.pdf

Here is a link to Justice Kirby's separate opinion concurring in part and dissenting in part:

http://www.tncourts.gov/sites/default/files/martin.sepopn.pdf

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.  

New Health Care Liability Action Opinion: Trial Court's Dismissal of Plaintiffs' Case for Failure to Provide HIPAA-complaint Authorization for the Release of Medical Records Upheld on Appeal

The Tennessee Court of Appeals recently released its opinion in Owens v. Stephens, No. E2018-01564-COA-R3-CV (Tenn. Ct. App. Apr. 16, 2020).  The syllabus from the slip opinion reads:

This is a healthcare liability action resulting from the death of a child. The defendants moved to dismiss the action for failure to comply with the notice requirements set out in Tennessee Code Annotated section 29-26-121(a)(2)(E). The trial court agreed with the defendants and dismissed the action without prejudice. The plaintiffs appeal the dismissal to this court. We affirm.

Here is a link to the slip opinion:

http://www.tncourts.gov/sites/default/files/owens_v._stephens_e2018-01564.pdf

NOTE: I think this opinion is incorrectly decided.  The defendants should have been able to share the relevant medical records as part of their "health care operations."  Ergo, no prejudice.  Please see the note in this post for a more detailed explanation of my point on this topic: http://theduncanlawfirm.blogspot.com/search?q=operations+.

New Health Care Liability Action Opinion: Tennessee Supreme Court Holds That Expert Witness Is Not Qualified to Testify under Tennessee Code Annotated section 29-26-115(b) Because Witness Did Not Meet Licensure Requirements

The Tennessee Supreme Court released its opinion today in Young v. Frist Cardiology, PLLC, No. M2019-00316-SC-R11-CV (Tenn. Apr. 20, 2020).  The syllabus from the slip opinion reads:

We granted review to determine whether a doctor is qualified to testify in a health care liability case as an expert witness under Tennessee Code Annotated section 29-26- 115(b) when the doctor was not licensed to practice medicine in Tennessee or a contiguous state within one year of the alleged injury or wrongful conduct, but was practicing under a licensure exemption. Section 29-26-115(b) provides that a doctor is competent to testify as an expert witness only if the doctor is licensed to practice medicine in Tennessee or a contiguous state and the doctor was practicing medicine in Tennessee or a contiguous state during the year before the date of the alleged injury or wrongful conduct. We hold that under Tennessee Code Annotated section 29-26-115(b), a doctor, who was permitted to practice medicine in Tennessee under a statutory licensure exemption but was not licensed to practice medicine in Tennessee or a contiguous state during the year before the date of the alleged injury or wrongful conduct, does not meet the requirements of section 29-26-115(b) to testify as an expert witness in a health care liability action. We reverse and remand this case to the trial court for further proceedings.

Here is a link to the slip opinion:

http://www.tncourts.gov/sites/default/files/young.vickie.opn_.pdf

NOTE: This opinion highlights why it is so important to make certain that an expert medical witness meets the qualifications under Tennessee's Health Care Liability Act.  This is a correct decision in my opinion. 

Also, the Court noted that the requirements of section 29-26-115(b) can be waived upon remand.  It is very likely that the trial court will grant such a waiver.

Summary Judgment for Defendants Upheld on Appeal in Tractor-trailer Case Because Plaintiffs Could Not Show a Defendant Owned Tractor

The Tennessee Court of Appeals released its opinion today in Affainie v. Heartland Express Maintenance Services, Inc., No. M2019-01277-COA-R3-CV (Tenn. Ct. App. Apr. 1, 2020).  The syllabus from the slip opinion reads:

This appeal arises from a hit–and–run involving a tractor-trailer and a passenger vehicle. The plaintiffs—the car driver and passenger—alleged in their complaint that the defendant trucking company owned the tractor-trailer that collided with their vehicle on the interstate. The plaintiffs also served a copy of the complaint on the car owner’s uninsured motorist carrier as an unnamed defendant. Following discovery, the trucking company moved for and was granted summary judgment on the ground that the plaintiffs were unable to establish liability because they were unable to prove that the trucking company owned the tractor-trailer. The court also dismissed the claims against the uninsured motorist carrier because the plaintiffs failed to establish legal liability against the alleged defendant tortfeasor. Plaintiffs appeal. We affirm. 

Here is a link to the slip opinion:

http://www.tncourts.gov/sites/default/files/affainie.heartlandexpress.opn_.pdf

NOTE: There is a drawing from one of the plaintiff's depositions on page 7 of the slip opinion.  It hurt the plaintiffs and helped the defendants in this case.  It was drawn by the named-defendant's counsel.  For what it is worth, and while I have not found a lot of authority on this issue, generally speaking, deponents cannot be made to draw something in a deposition.  See, e.g., Udkoff v. Hiett, 676 So.2d 522, 523 (Fla. Dist. Ct. App. 1996) (per curiam) (“Although a witness may choose to draw something to help explain his or her testimony, a trial court is without any authority to compel the deponent to create a drawing.”) (emphasis added).  And while defense counsel can do that, an objection should be made based upon foundation, authenticity, scale, requiring deponent to speculate, etc.