Articles Posted in Medical Negligence

In Arden v. Kozawa, No. E2013-01598-SC-R11-CV (Tenn. June 30, 2015), the Supreme Court addressed the issue of whether a plaintiff in a medical malpractice ( now known as a “health care liability” ) lawsuit can send pre-suit notice via a commercial carrier like FedEx instead of through the U.S. mail. The Court’s sensible and clearly correct conclusion was that service by FedEx was allowed, finding that “[a]s long as a defendant is not prejudiced, it does not matter whether a commercial carrier or the U.S. Postal Service delivers the notice.”

In Arden, plaintiff gave proper notice in a timely fashion before filing a health care liability (HCLA) suit. The problem, as defendants pointed out in their motion for summary judgment, was that plaintiff sent the notice via FedEx Priority service. Tenn. Code Ann. § 29-26-121(a)(4) states that completion of the mailing requirements in the notice statute “shall be demonstrated by filing a certificate of mailing from the United States Postal Service stamped with the date of mailing and an affidavit of the party mailing the notice establishing that the specified notice was timely mailed by certified mail, return receipt requested.” Defendants did not assert that the notice was insufficient, untimely, or not received, but instead argued that plaintiff had failed to comply with the statutory pre-suit notice requirements by using FedEx instead of the post office. The trial court agreed, dismissing plaintiff’s case, and the Court of Appeals affirmed.

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In Hughes v. Henry Co. Med. Center, No. W2014-01973-COA-R3-CV (Tenn. Ct. App. June 9, 2015), plaintiffs filed a health care liability action against defendants Henry County Medical Center (“HCMC”) and Dr. Gold. The defendants filed motions to dismiss alleging that plaintiffs failed to comply with the pre-suit notice requirements in Tenn. Code Ann. § 29-26-121. Specifically, defendants asserted that plaintiffs did not include a HIPAA-compliant medical authorization as required by the statute because the authorization did not permit the providers receiving the notice to obtain medical records from each other. The form provided to defendants only allowed HCMC to use its own records in the suit.

Plaintiffs admitted that the form was technically deficient but argued that defendants were not prejudiced because “Dr. Gold only saw [plaintiff] at HCMC and had no records independent of HCMC’s records.” In fact, during the hearing on the motions to dismiss, “counsel for HCMC conceded that Dr. Gold had no records, and there was no actual prejudice in view of this fact.” Nevertheless, the trial court dismissed the action due to plaintiffs’ failure to substantially comply with the statutory requirements. Plaintiffs appealed this decision as to HCMC, and the Court of Appeals overturned the dismissal in favor of that defendant.

The Court rejected HCMC’s argument that prejudice need not be analyzed since the plaintiffs “plainly and entirely failed to substantially comply” with the statutory requirements. Instead, the Court noted that in Stevens v. Hickman Cmty. Health Care Servs., Inc., 418 S.W.3d 547 (Tenn. 2013), the Tennessee Supreme Court stated that “in determining whether a plaintiff has substantially complied with a statutory requirement, a reviewing court should consider the extent and significance of the plaintiff’s errors and omissions and whether the defendant was prejudiced by the noncompliance. Not every non-compliant HIPAA medical authorization will result in prejudice.”

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The ABA’s Litigation News has an interesting story on a defense lawyer in a medical malpractice case who was found to have knowingly violated an order on a motion in limine and sanctioned almost $1,000,000.

A court order is an order, not a suggestion.  It is possible, in the heat of trial, to make an error and violate an order.  While this is and should be consequences of such a mistake, but when, as the trial judge said here,   “it is glaringly apparent that [defense counsel’s] conduct was orchestrated to improperly influence the outcome of this trial” there will be hell, or almost $1,000,000, to pay.

I love to win and I hate to lose.  I despise people, including lawyers, who feel the need to cheat to win.  I cannot see why any responsible insurer, company or individual would ever hire this lawyer in the future.


The Tennessee Supreme Court recently issued an opinion reversing several poorly decided lower court cases regarding the failure to disclose zero prior violations on a Healthcare Liability Act (HCLA) certificate of good faith. In Davis ex rel. Davis v. Ibach, No. W2013-02514-SC-R11-CV (Tenn. May 29, 2015), plaintiff filed an HCLA claim against defendant, but plaintiff’s certificate of good faith failed to state that plaintiff’s counsel had zero prior violations under the statute. Defendants moved for dismissal on the grounds that plaintiff failed to comply with § 29-26-122(d)(4), which states that a “certificate of good faith shall disclose the number of prior violations of this section by the executing party,” but before the Court could hear the motion plaintiff requested a dismissal without prejudice. The trial court allowed the dismissal, and the Court of Appeals affirmed. Defendant argued, though, that because the certificate of good faith was noncompliant the Court was required to dismiss the case with prejudice.

The Supreme Court heard the case to determine “whether the failure to indicate the absence of any prior violations of the statute constitutes a failure to comply with the requirement of section 29-26-122(d)(4).” The Court noted that the Court of Appeals had previously held that a plaintiff’s failure to disclose zero prior violations required dismissal with prejudice. (See, e.g., Vaughn ex rel. Vaughn v. Mountain States Health Alliance, No. E2012-01042-COA-R3-CV, 2013 WL 817032 (Tenn. Ct. App. Mar. 5, 2013)). The Supreme Court expressly overruled those decisions, holding that the HCLA “does not require disclosure of the absence of any prior violations of the statute.” The Court reasoned:

 [The statute] does not require disclosure of whether or not there have been any prior violations. The General Assembly easily could have worded the statute to instruct a party to disclose whether or not there have been any prior violations and, if so, the number of such prior violations. It did not do so. Logically, if there have not been any prior violations there is no “number of prior violations” to disclose.

Accordingly, the Court held that the trial court did have the authority to dismiss plaintiff’s case without prejudice.

This was definitely the correct interpretation of the HCLA. As the Supreme Court noted, the Court of Appeals has either affirmed or ordered dismissal of several cases because the certificate of good faith did not state that the executing party had zero prior violations. This was an absurd result. As the plaintiff’s argued here and the Supreme Court agreed with, if there are no prior violations there is nothing to disclose. A sensible final resolution to an issue that has plagued many healthcare liability plaintiffs’ attorneys over the last few years.

A recent informed consent case provided the Supreme Court with the opportunity to analyze what risks a plaintiffs’ expert should be allowed to testify about at trial. In White v. Beeks, No. E2012-02443-SC-R11-CV (Tenn. May 18, 2015), plaintiff had undergone spinal fusion surgery after other attempts at pain management were unsuccessful. After the surgery, plaintiff’s pain initially improved but then became worse, and plaintiff alleged that this was because of an ectopic bone growth caused by the surgery. Plaintiff filed suit against defendant doctor asserting that the doctor had not given him adequate information before the surgery to enable him to give informed consent. Specifically, plaintiff alleged that the doctor failed to inform him that a bone mass product called InFuse would be used, how such product would be used, or the risks associated with InFuse.

To prove his informed consent case, plaintiff needed to “prove by expert testimony 1) the information that [defendant] should have disclosed to [plaintiff] to obtain his informed consent for the surgery, as established by the recognized standard of acceptable professional practice in the specialty [in the same or similar community], 2) whether [defendant] disclosed appropriate information to [plaintiff] to comply with the [standard of care], and 3) whether a reasonable person in [plaintiff’s] position would have consented to the surgery if he had been provided with the information required by the recognized acceptable professional practice.”

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As HCLA cases continue to make their way through the court system, we are learning more about what will constitute substantial compliance with the pre-suit notice content requirements. In the recent case of Harmon v. Shore, No. M2014-01339-COA-R3-CV (Tenn. Ct. App. April 23, 2015), the Court of Appeals reaffirmed what seems like an overly harsh result related to substantial compliance with the required HIPAA authorization.

In Harmon, plaintiff was injured by a procedure performed solely by Dr. Shore. Plaintiff submitted pre-suit notice to the two defendants she later named in her suit, Dr. Shore and the relevant hospital. The HIPAA form enclosed, however, only released plaintiff’s medical records to her own lawyer. Defendants filed a motion to dismiss, which was initially denied in 2013, but following a denial of Rule 9 appeal from the Court of Appeals and then a remand from the Supreme Court to reconsider in light of the holding in Stevens v. Hickman Cmty. Health Care Servs., 418 S.W.3d 547 (Tenn. 2013), the motion to dismiss was granted by the trial court.

Plaintiff did not argue that her HIPAA form strictly complied with the statutory requirements. Instead, her essential argument was that her non-compliance with the technical requirements should be excused because the defendants already had all the records at issue in this case. In her reply to defendants’ motion to dismiss, plaintiff stated:

Appellants submit that an example of sufficient “cause” is that Appellants knew [the hospital] had Dr. Shore’s records. We know [the hospital] had all of her records because it sent them to her four months before the Notice was sent and Dr. Shore’s records were included.

[The hospital] also had a HIPAA compliant medical authorization in its possession as early as June 7, 2012, scarcely a month after the incident. It also had the other Defendant’s records, i.e., Gregg Ian Shore, M.D. We know this because it sent those exact records to Ms. Harmon on June 7, 2010.

We also know that [the hospital] had the Shore records because Shore was their agent and he sent her the same records. Therefore, extraordinary cause exists for the exercise of judicial discretion.

The Court of Appeals rejected this argument and affirmed dismissal of plaintiff’s case. Citing Stevens, the Court stated that “because 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.” Though the errors in the HIPAA form that led to dismissal in Stevens were “multiple” and here plaintiff made the sole error of only allowing disclosure to her own attorney, the Court found this difference immaterial. Quoting Stevens, it noted that “First, and most importantly, by permitting disclosure only to Plaintiff’s counsel, Plaintiff’s medical authorization failed to satisfy the express requirement of Tenn. Code Ann. § 29-26-121(a)(2)(E) that a plaintiff’s medical authorization permit the provider receiving the notice to obtain complete medical records from each other provider being sent notice.”

The Court went on to cite Roberts v. Prill, No. E2013-02202-COA-R3-CV, 2014 WL 2921930 (Tenn. Ct. App. June 26, 2014), where it said that “[t]he question of whether a plaintiff’s permitting disclosure of medical records only to plaintiff’s lawyer is sufficient, standing alone, to warrant dismissal of a lawsuit on grounds of failure to substantially comply with the pre-suit notice requirements” had been answered in the affirmative. Like the plaintiff here, the plaintiff in Roberts argued that the defendant was not prejudiced by the non-compliant HIPAA form because he already had all the relevant records in his possession. The Roberts Court, however, held that “HIPAA generally provides that a covered entity may not use or disclose protected health information without valid authorization. Plaintiff’s case did not fall within one of the limited circumstances anticipated by HIPAA that would allow for the use of the records without authorization. The form failed to provide Defendants with the proper authorization to use the medical records to mount a defense.”

Likewise, the Court here ultimately upheld the trial court’s dismissal of plaintiff’s case, as the error on the HIPAA form allowing disclosure only to plaintiff’s counsel was determined to make the case subject to dismissal.

This result seems excessively harsh considering that the defendants in this case had access to all of the medical records they might have requested with proper HIPAA forms. With two cases on this issue, though, the Court of Appeals appears to have made its opinion fairly clear. It will be interesting to see if the Supreme Court takes one of these cases to provide clarity on this matter.

While some parts of the Health Care Liability Act (HCLA) are making their way towards substantial compliance, the Court of Appeals recently reiterated that the requirement to file a certificate of good faith under Tenn. Code Ann. § 29-26-122 is mandatory. In Dennis v. Smith, No. E2014-00636-COA-R3-CV (Tenn. Ct. App. March 31, 2015), plaintiffs filed an HCLA claim against defendant. Defendant filed a motion to dismiss on the grounds (1) that plaintiffs did not comply with the pre-suit notice requirements because plaintiffs did not attach a HIPAA compliant authorization form to the notice letter, did not attach a list of all heath care providers receiving notice, and did not list the address of the claimant, and (2) that plaintiffs failed to file a certificate of good faith and failed to disclose the number of prior disclosure violations under § 29-26-122(d)(4). The trial court granted defendant’s motion to dismiss, and the Court of Appeals affirmed.

On appeal, the Court focused solely on the certificate of good faith issue, as failure to comply with the certificate of good faith requirements leads to dismissal with prejudice and would therefore be dispositive of the case. Plaintiffs here “concede[d] in their brief on appeal that instead of filing a certificate of good faith in compliance with the statute, plaintiffs filed a statement signed by their expert.” According to plaintiffs, this filing “over-complied by providing more information than the statute requires.” Essentially, plaintiffs argued that they provided the required information plus some and thus should be excused for not technically complying with the statute. The Court firmly disagreed.

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The issue of whether a Tennessee plaintiff who nonsuits his or her first medical malpractice (now heatlh care liability)  complaint must give a second notice before re-filing is a closed matter given the recent ruling in Foster v. Chiles.   In the recent case of  Potter v. Perrigan, No. E2013-01442-COA-R3-CV (Tenn. Ct. App. March 26, 2015), just such a scenario played out.

Plaintiffs gave pre-suit notice on January 8, 2009; they filed their initial suit on April 8, 2009; then on September 8, 2009, they voluntarily dismissed the action. One year later, pursuant to the savings statute, plaintiffs filed a second complaint on September 8, 2010. Attached to this complaint was a certificate of good faith and copy of the previously filed pre-suit notice. Plaintiffs did not send defendants a second pre-suit notice before re-filing their claims. Upon motion of the defendant, the trial court dismissed for failure to comply with Tenn. Code Ann. § 29-26-121. The Court of Appeals initially reversed this decision, holding that “Plaintiffs fulfilled the notice requirement[.]” Defendant then appealed to the Tennessee Supreme Court, which remanded the case for reconsideration in light of an opinion it issued in January, 2015.

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            In Smith v. Testerman, No. E2014-00956-COA-R9-CV (Tenn. Ct. App. March 10, 2015), the Court of Appeals recently took up the issue of whether a case sounds in ordinary negligence or health care liability. After a hernia repair, plaintiff developed an infection requiring additional surgery to place a wound vacuum and a sponge. One defendant was allegedly tasked with changing the sponge as necessary, and another of the defendants was charged with removing the sponge at the appropriate time. When the wound vacuum was removed the sponge was not, eventually leading the wound to burst.  Plaintiff sued defendants alleging that they “were negligent by failing to either remove the sponge or communicate with the other physicians to ensure that the sponge had been removed.”

            Defendant filed a motion to dismiss asserting that the claims fell under the Health Care Liability Act (“HCLA”) and that plaintiff’s failure to comply with the pre-suit notice and certificate of good faith requirements thus necessitated dismissal of the case. Plaintiff responded that he was claiming only ordinary negligence and was therefore not required to comply with the HCLA. Plaintiff asserted that “the fact that the alleged malpractice lies within the common knowledge of laypersons” and therefore did not require expert testimony was proof that the claim sounded in ordinary negligence.

            The trial court denied the motion to dismiss, and the Court of Appeals granted interlocutory appeal to address “[w]hether an action seeking compensatory damages for injuries sustained as a result of a foreign object having been left in the patient’s body following surgery is a ‘health care liability action’ as defined by the [HCLA], such that the mandatory presuit provisions set forth in Tennessee Code Annotated sections 29-26-121 and 29-26-122 apply.”

            In its analysis, the Court noted that “cases involving health or medical entities do not automatically fall within the health care liability statute.” (Quoting Draper v. Westerfield, 181 S.W.3d 283 (Tenn. 2005). To determine whether a case falls within the parameters of the HCLA, the Court pointed to and quoted extensively from the 2011 amendments to the definitions contained in Tenn. Code Ann. § 29-26-101(a), which includes fairly detailed definitions for health care liability action, health care provider, and health care services.

           The Court found that in this particular case, “[e]ach defendant in this case meets the definition of a health care provider.” Further, “the complaint asserts that Defendants were negligent in their care of Plaintiff by failing to remove a sponge that had been placed to aid in Plaintiff’s recovery. Accordingly, Plaintiff’s action should be classified as a health care liability action, unless the context suggests otherwise…[.]”

            Plaintiff’s primary argument was that expert testimony would not be required here, so the claim was simply for ordinary negligence. The Court pointed out that Tennessee case law establishes that “[a] health care liability claimant must establish the statutory elements through the testimony of an expert who meets the qualifications set forth in [the Act],” but that “expert testimony is not required if the negligence is obvious and readily understandable by an average layperson.” (Internal citations omitted). Thus, the Court rejected the argument that the lack of a need for expert testimony automatically excluded a claim from the requirements of the HCLA. Because the need for expert testimony is not dispositive on the issue of whether a claim falls under the HCLA, and because plaintiff’s claims otherwise met the applicable HCLA definitions, the Court held that this was an HCLA case and that the pre-suit notice provisions of § 29-26-121 applied.

            After finding that this was an HCLA claim, the Court determined that this case would require expert testimony, as “[t]he care at issue here goes beyond the type of ‘basic’ or ‘routine’ care that the Supreme Court referred to in [Estate of French v. Stratford House, 333 S.W.3d 546 (Tenn. 2011)] as not requiring expert testimony to establish the standard of care.” The Court determined that this “was not the type of case where a sponge was simply left in the body during surgery,” but that a specific surgery to place the sponge and continued care was needed. The certificate of good faith requirement found in § 29-26-122 was thus applicable, and because plaintiff failed to comply with such requirement his case was dismissed with prejudice.

            This case is a great reminder that when a case involves doctors and medical treatment, it is safest to assume it will under the HCLA and comply with pre-suit notice and certificate of good faith requirements. While it may seem like common sense that a certain action failed to meet the standard of care, if the courts disagree this mistake will likely be fatal to your client’s case.

         Tenn. Code Ann. § 29-26-121(f) allows defendants in a Tennessee medical malpractice (now called healthcare liability) case to petition the court for a “qualified protective order allowing the defendant…and their attorneys the right to obtain protected health information during interviews, outside the presence of claimant or claimant’s counsel, with the relevant patient’s treating ‘healthcare providers[.]’” The section goes on to specifically list four conditions placed on these interviews: (1) that the petition identify healthcare providers the defendant seeks to interview; (2) that plaintiff may object and seek to limit or prohibit the interview, which “may be granted upon good cause shown that a treating healthcare provider does not possess relevant information[;]” (3) that the protective order should limit the use/dissemination of the information and provide for its return or destruction after the litigation; and (4) that the protective order expressly states that a healthcare provider’s participation in such interview is voluntary.[1] In two almost identical recent cases, the Court of Appeals took up the issue of whether a trial court may place additional conditions or restraints on these interviews.

            In both Dean-Hayslett v. Methodist Healthcare, No. W2014-00625-COA-R10-CV (Tenn. Ct. App. Jan. 20, 2015) and S.W. v. Baptist Memorial Hosp., No. W2014-00621-COA-R10-CV (Tenn. Ct. App. Feb. 27, 2015), plaintiffs filed health care liability claims against defendants for alleged professional negligence. At issue in these appeals were the ex parte interviews defendants wanted to conduct with plaintiffs’ treating physicians without plaintiffs or their counsel present. Both sets of defendants moved for qualified protective orders to conduct these interviews, pursuant to § 29-26-121(f), which plaintiffs opposed. The trial courts granted the qualified protective order for the interviews but ultimately placed eight conditions on the interviews in both cases:

(1) That participation by healthcare providers in the interviews was voluntary;

(2) That defendants “should not attempt to elicit or discuss Protected Health Information which is not relevant to the issues in this lawsuit;

(3) That protected health information obtained in the interviews only be used in conjunction with the lawsuit;

(4) That protected health information obtained be destroyed at the end of the litigation;

(5) That defendants could not begin the interviews until a certain date;

(6) That a court reporter had to be present and “record all questions and answers during the interview;”

(7) That the “answers during the interview must be given under oath;”

(8) And that the transcript be filed under seal with plaintiff able to gain access to the record to determine whether there was a HIPAA violation upon showing good cause.

Defendants filed for Rule 10 extraordinary appeals to contest some of these restrictions, and the Court of Appeals granted limited review. Specifically, the Court took up the issue of whether limitations 6-8 (regarding the court reporter, oath, and filing of the transcript) and limitation 2 (regarding limiting the scope of the interviews to protected health information relevant to the issues of the lawsuit) were permissible under the statute.

            In addressing this issue in Dean-Hayslett, the Court reviewed the history of ex parte interviews, noting that the legislature adopted the statutory provision specifically allowing these interviews after they were prohibited by case law. Under the statute, however, ex parte interviews are not unlimited. By its terms, the statute limits the interviews to healthcare information that is relevant to the litigation and it sets parameters for the use and return or destruction of the material.  The defendants in the instant case argued that, pursuant to the statute, the trial court could not impose any additional restrictions on the qualified protective order. The plaintiff, on the other hand, asserted that this protective order was like a pretrial discovery order and the court therefore had the authority to place limitations on the interviews. Disagreeing with plaintiff, the Court determined that the interviews in question did not fall under “discovery.”        

            With this historical and analytical framework established, the Court of Appeals in Dean-Hayslett first addressed the limitations requiring a court reporter, oath, and the filing of the transcript. The Court found that these limitations were not allowable as they would “transform the investigatory interviews authorized by the section into quasi-depositions in contravention of the substantive purpose of the [statute].” Because the section was adopted specifically to allow less formal interviews, the Court held that the trial court did not have the authority to include these provisions in the qualified protective order.

            Regarding the limitation that defendants elicit protected health information only if it was relevant to the litigation, the Dean-Hayslett Court upheld the trial court’s ability to impose this restriction. Although defendants argued that they should be able to inquire into standard of care, causation and other matters, the Court disagreed. The Court found that the statute was “designed to enable defendants to ascertain identifying information and relevant healthcare information more expeditiously than otherwise allowed by the formal discovery process in order ‘to evaluate the substantive merits of a plaintiff’s claim.’” The Court stated that these informal interviews did not extend to opinions regarding causation and standard of care, and it held that this specific limitation could be imposed by the trial court because it did no more than “reflect the parameters of the statute[.]”

            In the S.W. case, the Court of Appeals adopted its reasoning from Dean-Hayslett and quoted lengthily therefrom, coming to the same result. The Court held that the requirements regarding the court reporter, oath and filing of the transcript “transform[ed] the ex parte interviews authorized by the section into quasi-depositions in contravention of the legislative purpose of the statute,” thus striking down those limitations. The Court upheld the restriction related to relevant protected health information “[b]ecause this provision in the trial court’s order does no more than reiterate the parameters set-forth in the statute[.]”

            Because these are the first Court of Appeals cases to address whether the trial court can limited a qualified protective order granted under § 29-26-121(f), they are important to note. Pursuant to these cases, it appears that a plaintiff can only seek limitations on these ex parte interviews based on a healthcare provider not having relevant information. Restrictions that go beyond the statutory limitations will not be allowed. On the other hand, though, defendants will be somewhat limited in the scope of these interviews. Defendants cannot use these interviews to inquire into healthcare topics beyond health information relevant to the litigation.

            Interestingly, Judge Stafford wrote a separate concurring opinion in Dean-Hayslett, which he relied upon and adopted in a concurrence on S.W., expressing concern with the implications of Tenn. Code Ann. 29-26-121(f):

From my reading, Tennessee Code Annotated Section 29-26-121(f)(1)(B) only allows a court to    limit or prohibit an ex parte interview with a treating physician based upon a finding that the physician can offer no evidence relevant to the litigation. It provides no discretion to the trial court to place limits on ex parte interviews where there is high risk that irrelevant and prejudicial information could be inadvertently or intentionally disseminated, nor upon any other showing that such limitation or prohibition may be warranted based upon the facts of that particular case. By limiting the court’s power to place additional restrictions on the grant of qualified protective orders, as may be necessary depending on the circumstances of each individual case, I am disquieted by the fact that Tennessee Code Annotated Section 29-26-121(f)(1) deprives the court of one of its greatest strengths—the ability to evaluate cases on an individual basis, rather than by pandemic approval or prohibition.

Under these circumstances, while I discern no legal basis to dissent from the majority’s holding, given the current state of the law, I write separately to express my belief that this decision may constitute a step backward in patient privacy jurisprudence.

As the courts continue to interpret the HCLA and the legislature continues to mold and amend the statute, it will be interesting to see if this concern is heeded.

[1] Note that the fourth condition, found in § 29-26-121(f)(1)(C), was added to the Code in 2013. Because the Dean-Hayslett case was filed in 2012, it was decided under a previous version of the statute which did not include the voluntariness condition, but this did not affect the outcome of this case.