Day on Torts
Where the HIPAA authorizations sent with plaintiff’s HCLA pre-suit notice were noncompliant, and plaintiff’s attorney claimed that the noncompliance was due to a set of extremely stressful work and family circumstances but his affidavit did not explain how the noncompliant error was made or how the circumstances caused the error, the Court of Appeals overturned the trial court’s finding of extraordinary cause excusing the noncompliance.
In Moxley v. AMISUB Inc. D/B/A Saint Frances Hospital, No. W2021-1422-COA-R9-CV, 2022 WL 3715056 (Tenn. Ct. App. Aug. 29, 2022), plaintiff alleged that he was injured by defendants’ medical negligence on July 5, 2019. Plaintiff’s counsel sent pre-suit notice to all potential defendants on July 3, 2020, and those notices included medical release forms that were allegedly HIPAA complaint pursuant to Tenn. Code Ann. § 29-26-121(a)(2)(E). The forms, however, all listed the recipient medical provider as the “releasing provider” rather than the receiving provider, essentially giving the recipient the ability to release documents but not obtain them.
Three weeks later, plaintiff’s counsel sent a second round of pre-suit notice letters to the potential defendants due to an error with the return receipt cards. The medical releases included in these notices had the same error as the first set. Finally, a few days later, plaintiff’s counsel sent pre-suit notice to one additional potential defendant, and that HIPAA authorization also contained the same error.
Defendants filed motions to dismiss, asserting that the HIPAA authorizations they received failed to comply with the HCLA and that plaintiff’s complaint was therefore untimely. Plaintiff’s counsel responded that there had been “an envelope-stuffing mistake” and that the authorizations sent substantially complied with the HCLA because, had defendants requested documents from the other listed providers, the providers could have used the authorizations to then release the relevant records. After defendants filed a reply asserting that the authorizations did not substantially comply with the HCLA requirements and noting that plaintiff had failed to plead that compliance should be excused due to “extraordinary cause,” plaintiff’s counsel filed an affidavit detailing stressful work and family conditions that existed at the time the pre-suit notices were sent.
According to plaintiff’s counsel, he was under extreme stress from several factors, including: the Covid-19 pandemic, his elderly mother-in-law who suffered from dementia moving in with his family, increased family responsibility, and his two employees at work being high risk for Covid. After defendants responded to this affidavit, plaintiff’s counsel filed a supplemental affidavit stating that finding an expert had taken longer than expected due to the pandemic, disruptions at home had made it difficult for him to focus, following CDC guidelines had made work difficult, his assistant had been absent due to dental surgery, and his computer system had suffered a viral attack.
Considering all the evidence, the trial court ruled that “each individual reason cited by [counsel] standing alone, does not constitute extraordinary cause for not complying with the statute,” but that “the cumulative effect of all the reasons led the court to exercise its discretion to find that there was extraordinary cause.” The trial court thus denied the motions to dismiss. In this interlocutory appeal, the finding of extraordinary cause was reversed.