Day on Torts
In J.A.C. v. Methodist Healthcare Memphis Hospitals, No. W2016-00024-COA-R3-CV (Tenn. Ct. App. Nov. 2, 2016), a plaintiff lost her chance to pursue her Tennessee medical malpractice claim due to an insufficient HIPAA release form.
Plaintiff was forty weeks pregnant when she went to the defendant hospital with lower back and abdominal pain on January 23, 2012, and she was found to have elevated blood pressure. Plaintiff was nonetheless discharged. She had her baby the next day, January 24, 2012, and a placental abruption was noted. The baby, a girl, allegedly “sustained severe brain damage that would not have occurred but for the Providers’ actions in failing to properly treat [plaintiff].”
Plaintiff filed this action on May 1, 2015, purportedly on behalf of both herself and her daughter. Plaintiff alleged that she followed the pre-suit notice requirements of the HCLA, but defendants moved to dismiss the case based on an insufficient HIPAA form. Defendants argued that, because the HIPAA form was insufficient to fulfill the statutory requirements, plaintiff was not entitled to the 120-day extension provided by the HCLA, and that her suit was thus filed outside the three-year statute of repose.
The trial court granted the motion to dismiss with prejudice, and the Court of Appeals affirmed.
The HIPAA form provided to defendants by plaintiff had a heading that read “HIPAA COMPLIANT AUTHORIZATION FOR THE RELEASE OF PATIENT INFORMATION PURSUANT TO 45 CFR 164.508.” The form contained multiple blanks, none of which were completed. The only writing was plaintiff mom’s signature. While the Court noted that plaintiffs need only substantially comply with the HIPAA release requirement, the Court deemed the release provided in the instant case “markedly inadequate.” Regarding the mostly blank form, the Court stated:
They did not satisfy the express requirement of the statute that the plaintiff’s medical authorization ‘permit the provider receiving the notice to obtain complete medical records from each other provider being sent a notice.’ Indeed, the provided forms did not actually authorize or facilitate any disclosure. The forms did not list any persons, or class of persons, that were authorized to disclose protected health information. Moreover, the forms did not list any persons, or class of persons, to whom a disclosure of information could be made. The forms merely contained blanks where this information could be made….Notably…[plaintiff] did not designate that she was signing the forms on behalf of [her daughter]. This is significant, because…assuming that the forms were offered as authorization for the release of [daughter’s] medical records, such a description of authority would have been necessary.
(internal citations omitted).
On appeal, plaintiff argued that “the Providers could have used the information in the pre-suit notice letters and in the attachments thereto to ‘customize the medical authorizations for their own use.’” The Court quickly rejected this argument, however, stating that “[s]everal Tennessee decisions have rejected the proposition that a health care liability defendant has a duty to assist a plaintiff achieve compliance or to test whether an obviously deficient HIPAA form would allow the release of records.” In fact, the Court stated that it “[knew] of no authority permitting the Providers to alter the authorization forms that were already given to them.”
Having failed to show that the forms were sufficient, plaintiff next asserted that her non-compliance should be excused for extraordinary cause. Plaintiff’s argument here was essentially that her counsel believed, based on a question and answer section of the U.S. Department of Health & Human Services website, that “a HIPAA compliant authorization could [ ] be established by piecing the pre-suit notice letters together with partially blank authorization forms.” The language plaintiff was attempting to rely on allegedly stated that a HIPAA form could be used “in conjunction with a cover letter that is more specific.” The Court rejected the argument that such a reading of a federal website would rise to extraordinary cause, noting that the “proffered excuse relates solely to their claimed ignorance as to what was necessary to comply with the statute.” The Court stated that the portion of the website cited by plaintiff said a cover letter could be used to “narrow a request for information that is available to be released pursuant to a HIPAA authorization,” and that “the web page does not suggest that the Plaintiffs could cobble together pre-suit notice in the manner that they have suggested.” The Court held that “misplaced” reliance on the Department of Health & Human Services website did not constitute extraordinary cause, and compliance with providing a sufficient HIPAA form was thus not excused.
Because plaintiff did not comply with pre-suit notice requirements, she was not entitled to the 120-day time extension afforded under the HCLA. Accordingly, her suit was filed outside the statute of repose and dismissal with prejudice was affirmed.*
As this case shows, HIPAA forms continue to be a stumbling block for HCLA plaintiffs. Here, interestingly, it appears from the notes in this opinion that at least two of plaintiff’s trial lawyers were from outside Tennessee and were admitted pro hac vice for this case. The HCLA and its pre-suit notice requirements are very specific, and over time it has been made clear that the courts will typically require that they are followed to the letter. To date, the courts have not usually required that the defendant show that any harm has resulted from the non-compliance.
*Note: Plaintiff also made several arguments that portions of the HCLA were unconstitutional, all of which were quickly disposed of pursuant to previously decided Tennessee cases.