523 S.W.3d 619
Tenn.2017Background
- Deborah Bray (plaintiff) sent statutorily required pre-suit notice in May 2011 to a single potential defendant, psychiatrist Dr. Radwan Khuri, for her husband’s wrongful-death/health-care-liability claim; the notice included a medical authorization.
- Bray filed suit in September 2011; Khuri moved to dismiss, asserting the authorization was not HIPAA-compliant as required by Tenn. Code Ann. § 29-26-121(a)(2)(E).
- The trial court granted dismissal, finding the authorization failed to comply with HIPAA and that Khuri was prejudiced because he could not consult Mr. Bray’s records with counsel.
- The Tennessee Court of Appeals affirmed, holding the statute required a HIPAA-compliant authorization even when notice was sent to a single provider.
- The Tennessee Supreme Court granted review to interpret § 29-26-121(a)(2)(E) and to resolve whether a HIPAA-compliant authorization is required when only one provider receives pre-suit notice.
- The Supreme Court concluded the statute’s plain language requires such an authorization only to permit a notified provider to obtain records from other providers who also received notice; HIPAA allows a provider to use records in its possession for legal/health-care-operations purposes, so the authorization was not required here. The Supreme Court reversed and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Tenn. Code Ann. § 29-26-121(a)(2)(E) requires a HIPAA-compliant authorization when pre-suit notice is sent to a single provider | Bray: No authorization required because only one provider received notice | Khuri: Yes; HIPAA bars disclosure/use without a valid authorization, so statute requires HIPAA-compliant form even for single-provider notice | Held: No. The statute’s authorization requirement applies only to let a notified provider obtain records from other providers who also received notice; not required when notice is sent to a single provider |
| Whether HIPAA prohibits a provider from consulting counsel about records already in the provider’s possession absent an authorization | Bray: HIPAA permits use/disclosure for health-care operations, including legal services, so no authorization needed for records in provider’s possession | Khuri: HIPAA forbids disclosure/use for legal evaluation pre-suit without authorization | Held: HIPAA permits a covered entity to use/disclose PHI for health-care operations and to share with counsel (as workforce or business associate) for litigation/legal services, so consultation is allowed without an additional authorization |
| Whether Tennessee Patient’s Privacy Protection Act bars disclosure absent authorization or preempts/conflicts with HIPAA here | Bray: Act applies to facilities and invasion-of-privacy claims; does not require authorization for pre-suit procedure and does not control here | Khuri: State law is more restrictive and bars disclosure without authorization or court order | Held: The state statute does not apply to this situation (it targets facilities, not physicians, and creates a separate private right for public divulgence); it does not justify dismissal here |
| Whether plaintiff’s failure to substantially comply with § 29-26-121(a)(2)(E) justified dismissal | Bray: Not applicable because the statute’s authorization requirement does not apply to single-provider notice | Khuri: The provided authorization was deficient under HIPAA, prejudice warranted dismissal | Held: Pretermitted as statutory requirement did not apply; dismissal reversed and case remanded |
Key Cases Cited
- Stevens v. Hickman Cmty. Health Care Servs., Inc., 418 S.W.3d 547 (Tenn. 2013) (interpreting health-care-liability pre-suit notice requirements and reviewing statutory intent)
- Pratcher v. Methodist Healthcare Memphis Hosps., 407 S.W.3d 727 (Tenn. 2013) (statutory interpretation of health-care-liability procedures)
- Foster v. Chiles, 467 S.W.3d 911 (Tenn. 2015) (statutory interpretation principles and plain-meaning rule)
- Garrison v. Bickford, 377 S.W.3d 659 (Tenn. 2012) (presumption that legislature intends each word to have effect)
- Rajvongs v. Wright, 432 S.W.3d 808 (Tenn. 2013) (pre-suit notice is a predicate to filing suit)