Substantial compliance standard for pre-suit notice HIPPA authorizations.

Plaintiffs must show substantial compliance, not strict compliance, with HCLA requirement that HIPAA authorization be included with their pre-suit notice.

In a memorandum opinion in Moxley v. AMISUB SFH, Inc., No. W2023-00220-COA-R3-CV (Tenn. Ct. App. April 24, 2024), the Court of Appeals vacated dismissal of an HCLA claim because the trial court used the wrong standard to determine whether plaintiff had complied with pre-suit notice requirements.

Before filing suit, plaintiff sent pre-suit notice to twelve potential defendants. Plaintiff included HIPAA authorizations, but those notices did not specifically authorize the providers to obtain medical records from the other providers. Instead, each pre-suit notice included twelve separate HIPPA authorization forms, with each authorizing the named provider to release records to one of the twelve providers sent notice.

After defendants filed a motion to dismiss, the trial judge found that plaintiff had not complied with Tenn. Code Ann. § 29-26-121 because the HIPAA authorizations were not sufficient. The judge wrote that “the benefit conferred under [the statute] is that each defendant provider is to obtain all of the medical records of the Plaintiff from the other providers receiving pre-suit notice. The Defendants in this case were deprived of that benefit, and thus, were prejudiced.” The trial judge nonetheless denied the motion to dismiss, finding that plaintiff’s attorney had shown extraordinary cause for the failure to comply.

In a first appeal, the Court of Appeals reversed the finding of extraordinary cause. It specifically stated, however, that it was not considering the substantial compliance ruling. When a new trial judge received the case on remand, he dismissed it without hearing further proof. Plaintiff then appealed, raising the issue of whether he had substantially complied with the HIPAA authorization requirement.

In this second appeal, the Court focused on the standard used by the trial court. Plaintiff sent authorizations allowing for the release of records to all other providers, but those releases did not specifically state that each provider could obtain the records. The trial judge ruled that defendants were “deprived of the benefit” of obtaining medical records and were therefore prejudiced.

In vacating this holding, the Court found that the trial judge had used a strict compliance rather than a substantial compliance standard. It noted that “the ultimate purpose of the pre-suit notice requirement is to allow defendants to investigate the merits of the claim against them and to pursue settlement negotiations prior to the lawsuit being filed.” The Court pointed out that “not every non-compliant HIPAA authorization will result in prejudice.” (internal citations omitted). The Court explained:

Respectfully, the conclusion that a deficient medical authorization would ordinarily deprive a defendant of the benefit of Section 121 does not mean that such deficiency will always result in such deprivation. . . . If a defective medical authorization automatically meant a plaintiff failed to comply with section 121 pre-suit notice, there would be no reason to consider prejudice. However, if the plaintiff’s noncompliance neither frustrates or interferes with the purposes of Section 121 nor prevents a defendant from receiving a benefit the statute confers, then a court is more likely to determine that the plaintiff has substantially complied. To date, the trial court has not resolved this question.

(internal citations and quotations omitted).

The Court of Appeals vacated the dismissal and remanded the issue to the trial court for consideration of whether plaintiff had substantially complied with the HIPAA authorization pre-suit notice requirements.

The Court of Appeals released this opinion 2.5 months after oral arguments in this case.


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