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Thursday, August 05, 2021

New Health Care Liability Action Opinion: Trial Court's Dismissal of Plaintiff's Claim Due to Defective Presuit Medical Records Authorization Upheld on Appeal

The Tennessee Court of Appeals has released its opinion in Reese v. Waters of Clinton, LLC, No. E2020-01466-COA-R3-CV (Tenn. Ct. App. Aug. 4, 2021).  The syllabus from the slip opinion reads:

This healthcare liability action was brought against a skilled nursing facility. The plaintiff sent pre-suit notice to multiple potential defendants prior to initiating the action. The plaintiff, however, failed to include as part of the pre-suit notice a HIPAA-compliant medical authorization as one of the six core elements was missing from the authorization. Following a motion to dismiss filed pursuant to Tennessee Rule of Civil Procedure 12.02(6), the Trial Court granted the motion and dismissed the action against the defendant due to noncompliance with Tennessee Code Annotated § 29-26-121 and as being untimely. The Trial Court denied the plaintiff’s request to compel discovery in this matter concerning whether the plaintiff had substantially complied with the pre-suit notice requirement. The plaintiff argues on appeal that the Trial Court erred by not treating the defendant’s motion as a motion for summary judgment and by preventing the plaintiff from conducting discovery regarding the plaintiff’s compliance with Section 29-26-121, as well as the resulting prejudice to the defendant. Discerning no error, we affirm the Trial Court’s judgment in all respects.

Here is a link to that opinion:

NOTE: This case offers a good discussion on what needs to be done to comply with HIPAA as it relates to authorizations to share and receive a patient's protected health information (PHI); those authorizations are supposed to be included as part of any presuit notice package sent to a potential defendant under Tennessee Code Annotated section 29-26-121.  In this case, a blank was left in each authorization so that the provider receiving presuit notice could ostensibly fill it in.  Reese, E2020-01466-COA-R3-CV, slip op. at 2.  That practice, however, has been held to not comply with HIPAA.  Id. at 13–14.  Since the authorizations did not comply with HIPAA, the plaintiff's claim fails as a matter of law.  See T.C.A. § 29-26-121 (LexisNexis 2021).  

This case also offers a good discussion of motions to dismiss versus motions for summary judgment to the extent that both challenge a plaintiff's noncompliance the presuit notice requirements contained in Tenn. Code Ann. sec. 29-26-121.  See id., passim.

Also, this opinion touches upon an attorney-in-fact (agent) acting on behalf of a patient in a Tennessee health care liability action (formerly known as a "medical malpractice case").  Id. at 2.  To the extent that the agent signs an authorization required for the release and sharing of a patient's PHI under -121 via a power of attorney form (POA), that form must be for health care purposes and not a general POA.  See June M. Sullivan & Shannon B. Hartsfield, HIPAA: A Practical Guide to the Privacy and Security of Health Data 39–40 (2d ed. 2020) ("For purposes of HIPAA, an individual's personal representative is a person with authority under state law to make health care decisions for the individual."  (Footnote omitted.)).  

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