McNiel v. Cooper

• Decision Date: 30 March 2007
• Docket Number: No. M2005-01206-COA-R3-CV.,M2005-01206-COA-R3-CV.
• Citation: McNiel v. Cooper, 241 S.W.3d 886 (Tenn. App. 2007)
• Parties: Frank H. McNIEL v. Susan R. COOPER.
• Court: Tennessee Court of Appeals

241 S.W.3d 886

Frank H. McNIEL v. Susan R. COOPER.

No. M2005-01206-COA-R3-CV.

Court of Appeals of Tennessee, at Nashville.

March 30, 2007.

April 5, 2006 Session.

Permission to Appeal Denied by Supreme Court August 13, 2007.

Paul G. Summers, Attorney General and Reporter, and Sue A. Sheldon, Senior Counsel, for the appellant, Susan R. Cooper, Commissioner of Health.¹

Frank J. Scanlon, Nashville, Tennessee, for the appellee, Frank H. McNiel.

OPINION

WILLIAM C. KOCH, JR., P.J., M.S., delivered the opinion of the court, in which WILLIAM B. CAIN and PATRICIA J. COTTRELL, IL, joined.

This appeal involves the authority of the Tennessee Board of Medical Examiners to review the medical records of a physician's patients. After the Board requested access to his patients' records in accordance with. Tenn.Code Ann. § 63-1-117 (2004), the physician filed a declaratory judgment action in the Chancery Court for Davidson County challenging the constitutionality of the statute. The physician asserted that the statutory procedure for gaining access to medical records amounted to an unreasonable search and seizure because it failed to provide him with pre-enforcement judicial review of the reasonableness of the Board's request. He also claimed that the statute's notice provisions violated due process. Both the physician and the Board filed motions for summary judgment. The trial court concluded that the physician received adequate notice of the purpose of the request for medical records. It also determined that Tenn.Code Ann. § 63-1-117(a)(3), the portion of the statute authorizing disciplinary sanctions against physicians who willfully fail to produce requested records, was unconstitutional and awarded the physician $20,916 in attorney's fees. The Board perfected this appeal. We concur with the trial court's conclusion that the physician received adequate notice of the reasons for the request for medical records. However, we have determined that physicians in Tennessee have no reasonable expectation that they can shield their patients' records from the Board's regulatory oversight and that the Board may discipline physicians who willfully refuse to comply with lawful requests for patient records that comply with Tenn. Code Ann. § 63-1-117.

I.

The Tennessee Board of Medical Examiners (Board) is responsible for licensing and regulating all physicians in Tennessee.² The Board receives administrative support from the Division of Health Related Boards (Division) in the Tennessee Department of Health (Department).³ The Division has concurrent jurisdiction with the Board to enforce compliance with the laws regulating the practice of medicine in Tennessee,⁴ and the Division's duties include investigating complaints against physicians.⁵

In 2003, the Tennessee General Assembly broadened the scope of the Division's investigatory power by authorizing the Division to obtain patient records from health care providers simply by presenting a written request for the records.⁶ As amended, Tenn.Code Ann. § 63-1-117 required that the request be accompanied by a release signed by the patient or the patient's representative.⁷ The statute also authorized the Division to obtain patient records without a signed release. In, that circumstance, the statute required that the Division's written request (1) specifically identify the records sought by patient name,⁸ (2) be made in good faith pursuant to the Department's responsibility for oversight of the health care system,⁹ and (3) contain a signed certification by an "independent reviewer" that the request is being made in good faith in response to a verified complaint and after due consideration of whether obtaining an individual release is necessary or feasible.¹⁰ Tenn. Code Ann. § 63-1-117(a)(3) also provided that willful failure to comply with a lawful request for records was a ground for disciplinary action against a license holder.

In March 2004, an investigator employed by the Division presented Dr. Frank McNiel with written requests for records of thirty of his patients. Dr. McNiel is a family practitioner in Knoxville who specializes in pain management. The investigator provided Dr. McNiel with copies of written releases signed by four of his patients whose records were being sought. With regard to the remaining twenty-six patients, the investigator provided Dr. McNiel with the identifying information and independent certification required by Tenn.Code Ann. § 63-1-117(a)(1)(B). The investigator also provided Dr. McNiel with a copy of Tenn.Code Ann. § 63-1-117 and a written warning that failure to produce the requested records could result in "possible criminal, civil penalty, and/or licensure disciplinary sanctions."¹¹

Dr. McNiel declined to produce the patient records requested by the Division. On May 25, 2004, his lawyer sent a letter to the Division asserting that Tenn.Code Ann. § 63-1-117 was unconstitutional.¹² Dr. McNiel also provided the Division with the records of two of the four patients who had signed releases. He declined to turn over the records of the other two patientsa husband and wife—because he questioned the validity of the signatures on the release.

On June 11, 2004, Dr. McNiel filed a complaint in the Chancery Court for Davidson County seeking declaratory and injunctive relief.¹³ He asserted that Tenn. Code Ann. § 63-1-117 was unconstitutional, and he requested that the Department be enjoined from requiring him to produce the requested records. Dr. McNiel, characterizing the written request for records as an "investigative subpoena," argued that the statute was unconstitutional because (1) it did not require the Department to inform the health care provider of the nature of its investigation and (2) it did not provide for pre-enforcement judicial review of the reasonableness of the request for patient records.

Three days later, on June 14, 2004, the Division responded to the May 25, 2004 letter from Dr. McNiel's lawyer. The Division demanded that Dr. McNiel produce the requested records by June 30, 2004 and warned him that the matter would be turned over to the Office of General Counsel for disciplinary proceedings if he failed to comply. This letter prompted Dr. McNiel to file an amended complaint on June 24, 2004, as well as a motion to enjoin the Department from instituting disciplinary proceedings against him under Tenn. Code Ann. § 63-1-117(a)(3). The record contains no indication that the trial court enjoined the Department from commencing a disciplinary proceeding against Dr. McNiel for refusing to turn over patients' records in accordance with an otherwise valid written request.

Both Dr. McNiel and the Department filed motions for summary judgment on August 18, 2004. Unfortunately, the Department failed to state the grounds for relief in its motion.¹⁴ Based on the exhibits accompanying the Department's motion, we deduce that the Department was arguing (1) that the Uniform Administrative Procedures Act provided Dr. McNiel with appropriate opportunities for judicial review before imposition of the sanctions authorized by Tenn.Code Ann. § 63-1-117(a)(3) and (2) that the procedure for obtaining patient records for regulatory purposes complied with the Health Insurance Portability and Accountability Act of 1996 (HIPAA). Dr. McNiel's motion, while terse, states that Tenn.Code Ann. § 63-1-117 is unconstitutional on its face because it violates his right to be protected from unreasonable searches and seizures under both the federal and state constitutions.

The trial court filed a memorandum and order on December 20, 2004. The court determined that Dr. McNiel had received adequate notice regarding the existence of a verified complaint against him and the records being sought. However, the court also determined that Tenn.Code Ann. § 63-1-117(a)(3) unconstitutionally coerced physicians into complying with requests for records by forcing them to run the risk of discipline if they refused to turn over the requested records. The court stated that this "coercion" was "contrary to the constitutional principles ... that a judicial determination of reasonableness of the demand be made prior to the enforcement and that there be no sanction for seeking such determination."

Accordingly, the trial court struck down Tenn.Code Ann. § 63-1-117(a)(3) that empowered the Department to commence disciplinary proceedings or to seek civil penalties against health care providers who willfully disregard a lawful request to produce medical records. The court also ordered the Department to place the following notice on any future Tenn.Code Ann. § 63-1-117 demands:

NOTE: Tennessee law does not currently allow the Health Related. Boards to take disciplinary action and/or assess civil penalties against a licensed health care provider who willfully disregards a lawful Authorization for Release of Records issued by the Department of Health.

The trial court also awarded Dr. McNiel $20,916 in attorney's fees. The Department perfected this appeal.¹⁵ In accordance with Tenn. R.App. P. 13(a), Dr. McNiel takes issue with the trial court's conclusion that the Division provided him with adequate notice of the purpose of its request for access to his patients' records.

II. THE STANDARD OF REVIEW

There are no material factual disputes with regard to the issues raised on this appeal. These issues involve the interpretation of statutes and the construction and application of constitutional provisions. These sorts of issues present questions of law. Tidwell v. City of Memphis, 193 S.W.3d 555, 559 (Tenn.2006) (the interpretation of a statute is a question of law); Bredesen v. Tenn. Judicial Selection Comm'n, 214 S.W.3d 419, 424 (Tenn.2007) (the construction of a statute or a constitutional provision is a question of law). A trial court's decisions on legal questions are not entitled to a presumption of correctness on appeal. Stewart v. Sewell, 215 S.W.3d 815, 821 (Tenn.2007); State v. Burns, 205...