J.A.C. v. Methodist Healthcare Memphis Hosps.

• Decision Date: 02 November 2016
• Docket Number: No. W2016–00024–COA–R3–CV,W2016–00024–COA–R3–CV
• Citation: 542 S.W.3d 502
• Parties: J.A.C., BY AND THROUGH her next Friend and Mother, Lesha CARTER and Lesha Patricia Carter, Individually v. METHODIST HEALTHCARE MEMPHIS HOSPITALS, et al.
• Court: Tennessee Court of Appeals

542 S.W.3d 502

J.A.C., BY AND THROUGH her next Friend and Mother, Lesha CARTER and Lesha Patricia Carter, Individually

v.METHODIST HEALTHCARE MEMPHIS HOSPITALS, et al.

No. W2016–00024–COA–R3–CV

Court of Appeals of Tennessee, AT JACKSON.

August 16, 2016 Session

Filed November 2, 2016

Application for Permission to Appeal Denied by Supreme Court March 9, 2017.

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; Andrée S. Blumstein, Solicitor General; and Laura Miller Assistant Attorney General, for the appellee, State of Tennessee.

Arnold B. Goldin, J., delivered the opinion of the Court, in which Brandon O. Gibson and Kenny Armstrong, JJ., joined.

Arnold B. Goldin

In this health care liability action, Defendants moved to dismiss based on the Plaintiffs' failure to provide the Health Insurance Portability and Accountability Act ("HIPAA") medical authorization required by Tennessee Code Annotated section 29–26–121(a)(2)(E). Based on its determination that the Plaintiffs failed to substantially comply with the foregoing statute, the trial court held that the Plaintiffs were not entitled to an extension of the applicable statutes of limitations and repose under Tennessee Code Annotated section 29–26–121(c) and accordingly concluded that the Plaintiffs' claims were time-barred. The trial court also concluded that the Plaintiffs' constitutional challenges to the viability of Tennessee Code Annotated section 29–26–121 were without merit. We affirm and remand for further proceedings consistent with this 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 Le Bonheur 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 Tennessee Code Annotated section 29–26–121. Under that statute, "[a]ny person ... asserting a potential claim for health care liability shall give written notice of the potential claim to each health care provider that will be a named defendant at least sixty (60) days before the filing of a complaint[.]" Tenn. Code Ann. § 29–26–121(a)(1). Specific documentation showing the Plaintiffs' purported compliance with the pre-suit notice requirements was attached to the complaint as an exhibit, including copies of medical authorizations that the Plaintiffs sent to the Providers pursuant to Tennessee Code Annotated section 29–26–121(a)(2)(E). See id. § 29–26–121(a)(2)(E) (stating that the pre-suit notice under Tennessee Code Annotated section 29–26–121(a)(1) shall include "[a] HIPAA compliant medical authorization permitting the provider receiving the notice to obtain complete medical records from each other provider being sent a notice").

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 Tennessee Code Annotated section 29–26–121. Namely, the Providers took issue with the Plaintiffs' failure to provide them with a HIPPA compliant authorization form that would enable them to obtain medical records from each other provider being sent pre-suit notice. Included among the Providers' many arguments in support of their motions to dismiss were the following points of contention: (1) the provided authorization forms did not provide a description of the information to be used or disclosed; (2) the authorization forms did not identify the person(s) authorized to make a requested use or disclosure; (3) the authorization forms did not identify the person(s) to whom disclosure could be made; and (4) the authorization forms did not identify the patient whose records were to be released. With respect to this last alleged deficiency, the Providers acknowledged that although the provided forms contained a signature purportedly belonging to Ms. Carter, there was no description of her authority to act for Jazyhia. Assuming that the forms were offered as authorization for the release of Jazyhia's medical records, such a description of authority would have been necessary. See 45 C.F.R. § 164.508(c)(1)(vi) ("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.").

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 Tennessee Code Annotated section 29–26–121(c). Under that provision, "the applicable statutes of limitations and repose shall be extended for a period of one hundred twenty (120) days" when proper pre-suit notice is provided. Tenn. Code Ann. § 29–26–121(c). Without this 120–day extension, the Providers argued that the Plaintiffs' May 1, 2015 complaint was time-barred.

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 same year, they did not file a response to the Providers' motions to dismiss until October 5, 2015. In their October 5 response, the Plaintiffs generally argued that they had sufficiently complied with the requirements of Tennessee Code Annotated section 29–26–121, including the provision of HIPAA compliant medical authorizations. In the alternative, the Plaintiffs argued that any flaws in their pre-suit notices should be excused as a result of extraordinary cause. To support the arguments made in their response, the Plaintiffs attached three affidavits. The first affidavit, belonging to Certified Information System Security Professional Chris Apgar, was offered to show that the Plaintiffs' pre-suit notice letters, along with their attachments, satisfied HIPAA. The second and third affidavits, belonging to attorneys Kevin Hudson and Scott Vezina,³ respectively, were offered to support the Plaintiffs' position that extraordinary cause should excuse any finding of statutory noncompliance.

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...