J.A.C., by and through her next friend and mother, Lesha Carter v. Methodist Healthcare Memphis HospitalsJ.A.C., by and through her next friend and mother, Lesha Carter v. Methodist Healthcare Memphis Hospitals
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed and Remanded
ARNOLD B. GOLDIN, J., delivered the opinion of the Court, in which BRANDON O. GIBSON and KENNY ARMSTRONG, JJ., joined.
Donald Capparella, Nashville, Tennessee, Daniel S. Weinstock, Carolyn M. Chopko, and Scott G. Vezina, Philadelphia, Pennsylvania for the appellants, J.A.C. by and through her Next Friend, and Mother Lesha Patricia Carter, and Lesha Patricia Carter, Individually.
Eugene Podesta and Leslie R. Issacman, Memphis, Tennessee, for the appellees, Methodist Healthcare-Memphis Hospitals and Methodist Lebonheur Hospital.
Joseph M. Clark and Samantha E. Bennett, Memphis, Tennessee, for the appellees, Bo Charles Li, M. D., and OBGYN Physicians Group of Memphis, PC.
Darrell E. Baker, Jr., Deborah Whitt, and M. Jason Martin, Memphis, Tennessee, for the appellees, Stephen Ehiremen, M.D., and OB/GYN Centers of Memphis, MPLLC.
Herbert H. Slatery, III, Attorney General and Reporter; Andree S. Blumstein, Solicitor General; and Laura Miller Assistant Attorney General, for the appellee, State of Tennessee .
OPINION
Background and Procedural History1
On January 23, 2012, Appellant Lesha Carter (“Ms. Carter“) began experiencing lower back and abdominal pain. Ms. Carter was approximately forty weeks pregnant at the time, and after she called 911, paramedics arrived at her home and transported her to Methodist Hospital South. While at the hospital, Ms. Carter‘s blood pressure was found to be elevated. Although an evaluating physician noted that she was having “irregular” contractions, Ms. Carter was discharged later that evening with instructions to return for a scheduled cesarean delivery on January 25, 2012.
Ms. Carter‘s water broke the following day, and she went immediately to Methodist Hospital South. She arrived at the hospital shortly before 9:30 p.m., and an obstetrician ordered an emergency cesarean section. Around 9:59 p.m., Ms. Carter‘s daughter, Jazyhia Carter (“Jazyhia“), was delivered. At the time of delivery, a placental abruption was noted.
Immediately after delivery, there were concerns that Jazyhia was having seizures. She required resuscitation and was transferred to the NICU unit where she was intubated. Hours later, Jazyhia was transferred to Methodist Hospital Germantown, where she remained until February 9, 2012.
On May 1, 2015, Ms. Carter filed a complaint in the Shelby County Circuit Court seeking to recover damages against several health care providers for alleged negligence in connection with her January 23, 2012 visit to Methodist Hospital South. The complaint was brought by Ms. Carter in her individual capacity in addition to her capacity as Jazyhia‘s parent and natural guardian. Named as defendants were the following individuals and entities: Methodist Healthcare Memphis Hospitals; Methodist Healthcare a/k/a Methodist LeBonheur Healthcare; Bo Charles Li, M.D.; Stephen Eguabor Ehiremen, M.D.; OB/GYN Centers of Memphis, MPLLC; and OB/GYN Physicians Group of Memphis, P.C. (“Providers“). Among other things, the complaint alleged that Ms. Carter was inappropriately discharged on January 23, 2012 and claimed that she should have been admitted on that date for additional testing, monitoring, and treatment. According to the complaint, Jazyhia sustained severe brain damage that would not have occurred but for the Providers’ actions in failing to properly treat Ms. Carter.
In addition to articulating the Plaintiffs’ specific grievances with the Providers’ actions, the complaint asserted that the Plaintiffs had complied with the pre-suit notice requirements of
The medical authorization forms received by the Providers were identical. Each form contained a heading identifying it as a “HIPAA COMPLIANT AUTHORIZATION FOR THE RELEASE OF PATIENT INFORMATION PURSUANT TO 45 CFR 164.508.” The forms were noticeably bare, however, and contained multiple blanks. Save for Ms. Carter‘s signature and the date, the blanks on the forms were not completed.
Following the commencement of the action, the Providers filed motions to dismiss based on the Plaintiffs’ failure to comply with
Because they contended that a HIPAA compliant authorization form had not been provided to them, the Providers argued that the Plaintiffs were not entitled to the benefit of
Because the complaint had raised several constitutional issues, including allegations that the Tennessee Health Care Liability Act2 was unconstitutional, the State of Tennessee filed a motion on June 11, 2015 requesting that it be allowed to intervene in the case as a matter of right. By order entered on July 14, 2015, the trial court granted the State‘s motion to intervene. A hearing on the Providers’ motions to dismiss was subsequently set for October 8, 2015.
Although the Plaintiffs had notice of the October 8, 2015 hearing in August of that
The hearing on the Providers’ motions to dismiss took place on October 8, 2015 as scheduled. At the beginning of the hearing, the trial court indicated that it was not going to consider the Plaintiffs’ written October 5 response. In addition to deeming the submission to be untimely filed, the trial court stated that the Plaintiffs’ response had included documents that were inappropriate for consideration on a motion to dismiss. The trial court did state, however, that it would “listen carefully” to the arguments that were presented at the hearing.
In a written order entered on October 30, 2015, the trial court concluded that the Plaintiffs had failed to substantially comply with
In light of the Plaintiffs’ failure to provide a HIPAA compliant authorization to each of the Providers, the trial court concluded that they were not entitled to rely on the 120-day extension in
11. Because the Plaintiffs failed to substantially comply with
Tenn. Code Ann. § 29-26-121(a)(2)(E) , Plaintiff Lesha Carter was not entitled to the 120-day extension of the one-year statute of limitations or three-year statute of repose underTenn. Code Ann. § 29-26-121(c) and Plaintiff Jazyhia Carter was not entitled to the 120-day extension of the three-year statute of repose underTenn. Code Ann. § 29-26-121(c) [.]
12. The alleged negligent treatment occurred on January 23, 2012, and the minor child was born on January 24, 2012 with alleged deficits. 13[.] Pre-suit notice was sent to the Defendants on December 17, 2014 [and on January 5, 2015.]
14[.] The three-year statute of repose lapsed on January 24, 2015 at the latest.
15. The Plaintiffs filed their Complaint on May 1, 2015, after the lapse of the applicable statute of repose.
16. The Plaintiffs’ claims were not filed within the applicable statute of limitations and/or statute of repose and are, therefore, time-barred.
17. The Defendants are entitled to dismissal with prejudice.
Despite its conclusion that the Providers were entitled to dismissal with prejudice, the trial court‘s October 30, 2015 order did not represent a final judgment. Plaintiffs’ constitutional challenges to the validity of
Issues Presented
Having reviewed the briefs submitted to us on appeal, we find that the following issues are presented for our review:
- Whether the trial court erred in refusing to consider the Plaintiffs’ written response to the Providers’ motions to dismiss.
- Whether the Plaintiffs’ medical authorizations substantially complied with
Tennessee Code Annotated section 29-26-121(a)(2)(E) . - Whether any mistakes in the Plaintiffs’ medical authorizations should be excused for extraordinary cause.
- Whether
Tennessee Code Annotated section 29-26-121 is unconstitutional, both facially and as-applied, because it violates the separation of powers doctrine and Open Courts Clause under the Tennessee Constitution, and violates the guarantee of equal protection under both the United States and Tennessee Constitutions.
- Whether
Tennessee Code Annotated section 29-26-121(a)(2)(E) is preempted by HIPAA and violates the Supremacy Clause of the United States Constitution.
Standard of Review
Because the trial court‘s grant of the Providers’ motions to dismiss involves a question of law, our review is de novo with no presumption of correctness. Myers v. AMISUB (SFH), Inc., 382 S.W.3d 300, 307 (Tenn. 2012) (citation omitted). Issues of statutory construction are also reviewed de novo, with no presumption of correctness afforded to the trial court‘s rulings. Hayes v. Gibson Cnty., 288 S.W.3d 334, 337 (Tenn. 2009) (citation omitted). “[W]hether [Plaintiffs] ha[ve] demonstrated extraordinary cause that would excuse compliance with the statutes is a mixed question of law and fact, and our review of that determination is de novo with a presumption
In addition to reviewing whether the Plaintiffs complied with the applicable requirements of the Tennessee Health Care Liability Act, or whether any noncompliance with those requirements should be excused, we address several presented questions of constitutional concern in this appeal. “Issues of constitutional interpretation are questions of law, which we review de novo without any presumption of correctness given to the legal conclusions of the courts below.” Waters v. Farr, 291 S.W.3d 873, 882 (Tenn. 2009) (citation omitted). We will uphold the constitutionality of a statute wherever possible, State v. Pickett, 211 S.W.3d 696, 700 (Tenn. 2007) (citations omitted), and when evaluating the constitutionality of a statute, “we begin with the presumption that an act of the General Assembly is constitutional.” Id. (quoting Gallaher v. Elam, 104 S.W.3d 455, 459 (Tenn. 2003) (citing State v. Robinson, 29 S.W.3d 476, 479-80 (Tenn. 2000); Riggs v. Burson, 941 S.W.2d 44, 51 (Tenn. 1997))). “The presumption of constitutionality applies with even greater force when a party brings a facial challenge to the validity of a statute.” Waters, 291 S.W.3d at 882 (citation omitted).
Discussion
Trial Court‘s Refusal to Consider the Plaintiffs’ Written Response to the Providers’ Motions to Dismiss
We turn first to the Plaintiffs’ assertion that the trial court erred in refusing to consider their October 5, 2015 written response to the Providers’ motions to dismiss. In addition to containing arguments as to why their complaint should not be dismissed, the Plaintiffs’ October 5 response attached three affidavits. As previously noted, one of these affidavits was offered to show that the medical authorization forms given to the Providers complied with HIPAA. The other two affidavits were offered in support of the Plaintiffs’ alternative position that any noncompliance with the requirements of the pre-suit notice statute should be excused for extraordinary cause.
The trial court refused to consider the Plaintiffs’ written response, in part, due to its determination that the response was not timely filed.5 The trial court noted that the Plaintiffs had been aware of the October 8, 2015 hearing date since August of that same year and cited to Rule 6(A) of the Shelby County Circuit Court Local Rules of Practice. Under that rule, written responses to motions to dismiss must be filed and delivered to the trial judge or courtroom clerk “at least ten (10) days before the motion is heard.”
On appeal, the Plaintiffs argue that notwithstanding the tardiness of their response under the local rules of practice, the trial court abused its discretion in refusing to consider it. Assuming arguendo that the trial court erred in refusing to consider the Plaintiffs’ response, we find that such error was harmless. We note than under Rule 36 of the Tennessee Rules of Appellate Procedure, “[a] final judgment . . . shall not be set aside unless, considering the whole record, error involving a substantial right more probably than not affected the judgment or would result in prejudice to the judicial process.” Tenn. R.
Trial Court‘s Dismissal of the Plaintiffs’ Claims
We next review the trial court‘s basis for dismissing the Plaintiffs’ case. The trial court determined that the Plaintiffs’ claims were time-barred because they “were not filed within the applicable statute of limitations and/or statute of repose.” It reached this conclusion by way of a separate determination that the Plaintiffs were not entitled to the 120-day extension under
We agree with the trial court‘s conclusion that the Plaintiffs’ May 1, 2015 complaint would be time-barred absent an extension of the statute of repose pursuant to
To determine whether the trial court was correct in its determination that the Plaintiffs were not entitled to rely on the 120-day extension under
Despite the importance of the HIPAA authorization required by the statute, the Tennessee Supreme Court has held that “[a] plaintiff‘s less-than-perfect compliance with
Directing our attention to the facts of this case, we must determine whether the authorization form provided by the Plaintiffs substantially complied with the requirements of
(i) A description of the information to be used or disclosed that identifies the information in a specific and meaningful fashion.
(ii) The name or other specific identification of the person(s), or class of persons, authorized to make the requested use or disclosure.
(iii) The name or other specific identification of the person(s), or class of persons, to whom the covered entity may make the requested use or disclosure.
(iv) A description of each purpose of the requested use or disclosure. The statement “at the request of the individual” is a sufficient description of the purpose when an individual initiates the authorization and does not, or elects not to, provide a statement of the purpose.
(v) An expiration date or an expiration event that relates to the individual or the purpose of the use or disclosure. The statement “end of the research study,” “none,” or similar language is sufficient if the authorization is for a use or disclosure of protected health information for research, including for the creation and maintenance of a research database or research repository.
(vi) Signature of the individual and date. If the authorization is signed by a personal representative of the individual, a description of such representative‘s authority to act for the individual must also be provided.
In this case, the authorization forms given to the Providers were markedly inadequate. 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.”
Given these deficiencies,7 the authorizations were clearly ineffective to allow the
In affirming the trial court‘s conclusion that the Plaintiffs failed to substantially comply with
The argument that a health care liability defendant should complete or “customize” a medical authorization that contains blanks has been specifically rejected by two recent decisions of this Court. In Roberts v. Prill, No. E2013-02202-COA-R3-CV, 2014 WL 2921930 (Tenn. Ct. App. June 26, 2014), the plaintiff admitted that she intentionally left portions of the HIPAA form blank and anticipated that the defendant medical providers would fill it in. Id. at *6. In summarizing the crux of the plaintiff‘s argument as to why her complaint should not be dismissed despite the presence of an incomplete form, we noted as follows: “She essentially argues that the onus should be placed on Defendants to test the sufficiency of the form or even to complete an inadequate form.” Id. We rejected the plaintiff‘s argument and noted as we had in Stevens that it is the health care liability plaintiff, not defendant, that is responsible for complying with the requirements of
We also had occasion to address this issue in Bray v. Khuri, No. W2015-00397-COA-R3-CV, 2015 WL 7775316 (Tenn. Ct. App. Dec. 3, 2015), perm. app. granted (Tenn. June 23, 2016).8 Upon our review of the record in Bray, we determined that the plaintiff‘s HIPAA
authorization form “left blank the portion of the . . . form describing the type and amount of information to be used.” Id. at *4. Although the plaintiff argued that the accompanying pre-suit notice letter authorized the defendant to fill in the blank with the necessary information, we rejected this argument. First, we noted that nothing in the notice letter explicitly authorized the defendant to make any changes to the authorization. Id. Second, we noted that the defendant was not responsible for producing a HIPAA compliant authorization form, as the plaintiff was the party statutorily charged with such a duty. See id. (citation omitted).
We know of no authority permitting the Providers to alter the authorization forms that were already given to them.9 Moreover,
Propriety of Excusing the Plaintiffs’ Non-Compliance for Extraordinary Cause
Under
court‘s decision to excuse compliance under an abuse of discretion standard. Id. at 308. A trial court abuses its discretion when it “‘applies an incorrect legal standard or its decision is illogical or unreasonable, is based on a clearly erroneous assessment of the evidence, or utilizes reasoning that results in an injustice to the complaining party.‘” Id. (quoting Wilson v. State, 367 S.W.3d 229, 235 (Tenn. 2012) (citing Wright ex rel. Wright v. Wright, 337 S.W.3d 166, 176 (Tenn. 2011))). “If a discretionary decision is within a range of acceptable alternatives, we will not substitute our judgment for that of the trial court simply because we may have chosen a different alternative.” Harmon v. Shore, No. M2014-01339-COA-R3-CV, 2015 WL 1881467, at *4 (Tenn. Ct. App. Apr. 23, 2015) (citing White v. Vanderbilt Univ., 21 S.W.3d 215, 223 (Tenn. Ct. App. 1999)), perm. app. denied (Tenn. Sept. 16, 2015).
In their appellate brief, the Plaintiffs argue that the trial court abused its discretion because it did not even consider their extraordinary cause claim. Although it is true that the trial court did not consider the two affidavits that the Plaintiffs submitted on the extraordinary cause issue, it is incorrect to suggest that the trial court did not entertain the defense. The trial court did not restrict the Plaintiffs’ arguments at the October 8, 2015 hearing, and the transcript from that proceeding indicates that the Plaintiffs’ counsel specifically argued extraordinary cause.10 We agree
We are also of the opinion that the trial court committed no error in failing to find that extraordinary cause existed. None of the arguments presented at the October 8, 2015 hearing rise to the level of extraordinary cause, nor do any of the facts that were presented in the affidavits that the Plaintiffs attached to their response to the Providers’ motions to dismiss.11 Although the Plaintiffs’ oral arguments at the October 8 hearing largely overlapped with those presented in the affidavits, we will address them in turn.
At the hearing on the Providers’ motions to dismiss, the Plaintiffs’ counsel argued that the Plaintiffs could not have anticipated that a HIPAA compliant authorization could not be established by piecing the pre-suit notice letters together with partially blank authorization forms. In supporting this position, the Plaintiffs’ counsel alluded to a question and answer section that apparently appeared on the United States Department of Health & Human Services website, representing as follows: “And what the [Department of Health & Human
Services] website tells us, and this is undisputed, is that a HIPAA authorization can be utilized in conjunction with a cover letter that is more specific. It can narrow or clarify the instruction. That‘s what we‘ve done.” As counsel noted, “You read [the Department of Health & Human Services website], you think it‘s okay. You follow the practice that‘s done nationally, you think it‘s okay.”
Although what constitutes extraordinary cause is not defined under the statute, our Supreme Court has noted that there is no indication that the General Assembly intended to assign a meaning to that phrase other than its ordinary and plain meaning:
“Extraordinary” is commonly defined as “going far beyond the ordinary degree, measure, limit, etc.; very unusual; exceptional; remarkable.” Webster‘s New World Dictionary of the American Language, 516 (1966); see also State v. Vikre, 86 N.C.App. 196, 356 S.E.2d 802, 804 (1987) (adopting dictionary definition of extraordinary cause as “going beyond what is usual, regular, common, or customary . . . of, relating to, or having the nature of an occurrence or risk of a kind other than what ordinary experience or prudence would foresee“). One legal scholar, commenting on
Tennessee Code Annotated sections 29-26-121 and 122, has noted that possible examples of “extraordinary cause” might include “illness of the plaintiff‘s lawyer, a death in that lawyer‘s immediate family, [or] illness or death of the plaintiff‘s expert in the days before the filing became necessary.”
Here, the Plaintiffs’ proffered excuse relates solely to their claimed ignorance as to what was necessary to comply with the statute. This explanation does not justify a finding of extraordinary cause. See DePue v. Schroeder, No. E2010-00504-COA-R9-CV, 2011 WL 538865, at *8 (Tenn. Ct. App. Feb. 15, 2011) (“Plaintiffs’ counsel‘s action in filing the complaint before expiration of the required notice period was not shown to be the result of any ‘extraordinary cause’ other than pure oversight/misunderstanding on her part.“). Moreover, as we have already pointed out in footnote nine
Similarly, the affidavits that the Plaintiffs submitted on the extraordinary cause issue do not present a basis for relieving the Plaintiffs from the consequences of their noncompliance. The affidavits of Kevin Hudson and Scott Vezina both spoke to their respective expectations that the Providers would be able to obtain records by using the incomplete HIPAA forms with the pre-suit notice letters. Moreover, attorney Scott Vezina specifically attested to his experience with Florida medical malpractice cases where defense attorneys had “been able to use the notice letter in combination with a signed but not fully filled out HIPAA authorization . . . to obtain medical records.” These representations, even when taken at face value, do not support a finding of extraordinary cause. Again, it should have been clear under well-settled Tennessee law that it is the health care liability plaintiff, not the defendant, that is responsible for creating compliance with the requirements of
Plaintiffs’ Constitutional Challenges
We last address the Plaintiffs’ assertion that
In addressing the presented constitutional challenges, we first consider the Plaintiffs’ argument that the statute runs afoul of the separation of powers doctrine. Under the Tennessee Constitution, the encroachment by one department upon the powers or functions of another is forbidden. Richardson v. Tenn. Bd. of Dentistry, 913 S.W.2d 446, 453 (Tenn. 1995) (citations omitted). Although this separation of powers is a fundamental principle of our government, “it has long been recognized that it is impossible to preserve perfectly the theoretical lines of demarcation between the executive, legislative[,] and judicial branches of government.” Underwood v. State, 529 S.W.2d 45, 47 (Tenn. 1975) (citations omitted). As the three departments are interdependent, there will “necessarily [be] a certain amount of overlapping.” Id.
In advancing their separation of powers argument, the Plaintiffs raise several points of contention. They assert that the medical authorization requirement of
The medical authorization requirement merely imposes a step to be taken before the commencement of an action.13 It does not, however, conflict with Rule 3 of the Tennessee Rules of Civil Procedure or serve as an affront to the Supreme Court‘s authority to promulgate rules governing procedure. We previously rejected such an argument in Webb v.
Roberson, No. W2012-01230-COA-R9-CV, 2013 WL 1645713 (Tenn. Ct. App. Apr. 17, 2013), perm. app. denied (Tenn. Dec. 23, 2013), noting as follows:
[W]e find no conflict between section 29-26-121 and Civil Procedure Rule 3 to constitute an impermissible encroachment upon the court‘s rule-making authority. . . . [S]ection 29-26-121 requires that written notice of a potential health care liability claim be given “before the filing of a complaint.” Thus, the statute‘s pre-suit notice requirements are satisfied—or not—before suit is commenced
pursuant to Rule 3 by the filing of the complaint. See Rajvongs v. Wright, No. M2011-01889-COA-R9-CV, 2012 WL 2308563, at *5 (Tenn. Ct. App. June 18, 2012) (holding that a suit is “commenced” upon the filing of the complaint, not upon the filing of the sixty-day notice) perm. app. granted (Tenn. Sept. 19, 2012). Once suit is commenced, if the pre-suit notice requirements are demonstrably not met, the complaint is subject to dismissal by the courts absent “extraordinary cause” which is, likewise, determined by the courts.
Id. at *9. We concluded in Webb that “the pre-suit notice requirements of section 29-26-121 merely supplement Rule 3 and can be harmoniously construed therewith[.]” Id. Although our conclusions on this issue addressed the pre-suit notice requirements in general terms rather than
We also reject the Plaintiffs’ contention that the medical authorization requirement cannot be reconciled with Rule 15 of the Tennessee Rules of Civil Procedure. The pre-suit notice requirements outlined in
We next consider the Plaintiffs’ argument that the pre-suit notice requirements in
That all courts shall be open; and every man, for an injury done him in his lands, goods, person or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial, or delay.
The Tennessee Supreme Court has interpreted this section of our Constitution “as a mandate to the judiciary and not as a limitation upon the legislature.” See Harrison v. Schrader, 569 S.W.2d 822, 827 (Tenn. 1978). Moreover, we note that in Webb, this Court rejected the notion that
The right to court access is not absolute. Instead,
[t]he constitutional guaranty providing for open courts and insuring a remedy for injuries does not guaranty a remedy for every species of injury, but applies only to such injuries as constitute violations of established law of which the courts can properly take cognizance.
Id. (quoting Barnes v. Kyle, 202 Tenn. 529, 535–36, 306 S.W.2d 1, 4 (1957)).
Thus, the courts are open only to those who suffer injuries as defined by the constitution, statute, or common law. Thus, if the legislature chooses to classify some damage outside the realm of “legal injury,” it may do so, as long as no other constitutional provision is violated. That is what is meant by the statement that Article I, section 17 is a mandate to the judiciary and not the legislature. The legislature may limit access to the courts, but the judiciary may not.
Stutts v. Ford Motor Co., 574 F.Supp. 100, 103 (M.D.Tenn.1983) (citing Barnes, 202 Tenn. 529, 306 S.W.2d 1).
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In the instant case, Plaintiffs take issue with section 29–26–121‘s requirement that written pre-suit notice of the potential health care liability claim be given within the original statute of limitations, without provision for extension. As was explained in the cases cited above, however, the legislature has the inherent authority to set the parameters under which a cause of action accrues and is abolished; in enacting section 29–26–121, it crafted an affirmative defense for failure to comply with the pre-suit notice requirements. Because the Open Courts Clause “applies only to such injuries as constitute violations of established law of which the courts can properly take cognizance[,]” Harrison, 569 S.W.2d at 827, we find that Plaintiffs may not successfully invoke the clause to challenge section 29–26–121, nor to insist that section 29–26-121 be analyzed under strict scrutiny.
Webb, 2013 WL 1645713, at *15–16. Requiring a HIPAA compliant medical authorization to accompany the pre-suit notice was a policy decision by the General Assembly that “equip[s] defendants with the actual means to evaluate the substantive merits of a plaintiff‘s claim by enabling early access to a plaintiff‘s medical records.” Stevens, 418 S.W.3d at 555. The requirement does not prevent health care liability plaintiff‘s from having their rights judicially determined, and as we have noted, the Open Courts Clause has not been interpreted as a limitation upon the General Assembly. Harrison, 569 S.W.2d at 827. We accordingly reject the assertion that the medical authorization requirement in
We note that this Court‘s Webb decision also addressed the general equal protection and preemption arguments that have been raised by the Plaintiffs in this appeal. In addressing whether
The Plaintiffs admit that the pre-suit notice requirements are subject to a rational basis test, but they assert that the statute does not satisfy this more lenient standard of judicial review. In Webb, this Court rejected the notion that no rational basis existed for imposing pre-suit notice requirements upon a health care liability plaintiff, while not imposing such requirements
Our decision in Webb also directly addressed the issue of whether
We simply cannot agree with Plaintiffs’ position that section 29–26–121 allows for the release of protected health information without either a court order or the patient‘s consent, in violation of HIPAA. By pursuing a malpractice claim, the plaintiff consents to the disclosure of relevant medical information. See, e.g., Holman v. Rasak, 785 N.W.2d 98,106 (Mich. 2010) (“The HIPAA regulations were ‘not intended to disrupt the current practice whereby an individual who is a party to a proceeding and has put his or her medical condition at issue will not prevail without consenting to the production of his or her protected health information.’ “) (quoting 65 Fed.Reg. 82462–01, 82530 (December 28, 2000) discussing
45 C.F.R. § 164.512(e) ) (footnote omitted). Moreover, HIPAA expressly provides that protected health information may be released, in the context of a judicial proceeding, in response to lawful process where the subject of the protected information is notified of the information request.45 C.F.R. § 164.512(e)(1)(ii)(A) (emphasis added). Certainly, the plaintiff, who, in the pursuit of his claim has authorized the release of his medical records, is aware of the information request. Notwithstanding this consent, however, HIPAA protection is not waived by the pursuit of a malpractice claim. As pointed out by Defendants, section 29-26-121 specifically demands that the claimant‘s authorization to release medical records be “HIPAA compl[ia]nt[,]” it limits the discoverable medical records to those held by providers sent notice by the claimant, and it requires the records be treated as confidential and be used only by the parties, their counsel, and their consultants.Tenn. Code Ann. § 29–26–121(a)(2)(E) , (d)(2).
Webb, 2013 WL 1645713, at *14 (internal footnote omitted). The Tennessee Supreme Court has also opined on the HIPAA preemption issue. Several months after our decision in Webb, the Supreme Court specifically held that “[the medical authorization requirement of]
In this case, the Plaintiffs maintain that the trial court‘s interpretation of
In their brief on appeal, the Plaintiffs purport to raise as-applied constitutional challenges in addition to their assertions that
At the December 4, 2015 hearing, Plaintiffs’ counsel represented to the Court that the Plaintiffs were asserting both a facial challenge and an as-applied challenge to the constitutionality of the pre-suit notice requirements of
Tenn[.] Code Ann[.] § 29-26-121 [.] The Court commented that the Plaintiffs’ brief argued only a facial challenge of the statute. While the Court is of the opinion that the Plaintiffs’ constitutional challenge was a purely facial challenge, to the extent that any of the challenges could be interpreted as as-applied challenges, the Court finds the pre-suit notice requirements constitutional on its face and as applied to the facts of this case[.]
As best as we are able to discern, the Plaintiffs’ as-applied challenges focus on the perceived unfairness of the fact that their complaint was dismissed with prejudice for failure to provide a sufficient authorization form. We note that the Plaintiffs’ claims were dismissed with prejudice because they did not satisfy the applicable statute of limitations and statute of repose. As previously explained, this result was partially attributable to the Plaintiffs’ failure to receive the benefit of the 120-day extension outlined in
Conclusion
For the foregoing reasons, we affirm the trial court‘s dismissal of the Plaintiffs’ claims. Costs of this appeal are assessed against the Appellant Lesha Carter, and her surety, for which execution may issue if necessary. This case is remanded to the trial court for the collection of costs, enforcement of the judgment, and for such further proceedings as may be necessary and are consistent with this Opinion.
ARNOLD B. GOLDIN, JUDGE