In its opinion filed on July 5, 2017, the Supreme Court of Tennessee at Jackson (“Tennessee Supreme Court”) held that a prospective plaintiff who provides pre-suit notice to one potential defendant is not required under Tennessee Code Annotated section 29-26-121(a)(2)(E) to provide the single potential defendant with a HIPAA-compliant medical authorization. The trial court and the Tennessee Court of Appeals had ruled otherwise, and therefore the Tennessee Supreme Court reversed and remanded the case to the trial court.
The Underlying Facts
The plaintiff’s husband had committed suicide at a hospital in Memphis, Tennessee, between the evening of March 25, 2003 and the morning of March 26, 2003.
In March 2004, the plaintiff filed a healthcare liability case against the psychiatrist who had provided psychiatric care to the plaintiff’s husband from the time of his hospital admission on March 20, 2003 until his death less than a week later, alleging negligence in the care and treatment of her husband. In May 2010, after the parties had engaged in pretrial discovery, the plaintiff voluntarily dismissed the suit.
In May 2011, the plaintiff sent the defendant psychiatrist pre-suit notice of her healthcare liability claim, as required by section 29-26-121(a)(1). The pre-suit notice letter advised the defendant of a potential claim by the plaintiff for the wrongful death of her husband arising out of the medical and psychiatric treatment he provided to her husband in the hospital. The notice, which included a medical authorization signed by the plaintiff, stated that the defendant was the only healthcare provider receiving the notice.
In September 2011, the plaintiff filed a healthcare liability suit against the defendant. The defendant moved to dismiss the case, arguing that the plaintiff had failed to provide a HIPAA-compliant medical authorization pursuant to section 29-26-121(a)(2)(E) because the authorization was incomplete and not HIPAA-compliant. The defendant argued that he could not discuss the husband’s medical records with his lawyer to prepare a defense to the potential claim without the HIPAA-compliant medical authorization. The plaintiff countered that no authorization was required under section 29-26-121(a)(2)(E) because the defendant was the only healthcare provider to whom she sent pre-suit notice.
The trial court granted the defendant’s motion to dismiss the complaint, finding that the authorization provided by the plaintiff did not comply with HIPAA, did not substantially comply with the requirements of Tennessee Code Annotated section 29-26-121(a)(2)(E), and that such noncompliance prejudiced the defendant because the defendant was unable to use the husband’s medical records to prepare his defense.
The Court of Appeals affirmed, holding that the plaintiff was required to furnish a HIPAA-compliant authorization with the pre-suit notice even though the defendant was the only healthcare provider notified of the claim.
The Tennessee Supreme Court Decision
The Tennessee Supreme Court stated that Tennessee Code Annotated section 29-26-121(a)(1) provides that a 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). Tennessee Code Annotated section 29-26-121(a)(2)(E) states that the notice 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 Tennessee Supreme Court held: “based on the clear and unambiguous language of section 29-26-121(a)(2)(E), a plaintiff need not provide a HIPAA-compliant authorization when a single healthcare provider is given pre-suit notice of a healthcare liability claim. The authorization only allows a potential defendant to obtain the prospective plaintiff’s medical records from any other healthcare provider also given notice and identified as a potential defendant in the pre-suit notice. This authorization requirement is consistent with section 29-26-121(d)(1), which specifies that all parties to a healthcare suit “shall be entitled to obtain complete copies of the claimant’s medical records from any other provider receiving notice” and that the claimant complies with this requirement by providing a HIPAA-compliant medical authorization with pre-suit notice.”
With regard to the defendant’s argument that HIPAA prohibits the disclosure of a patient’s medical records to counsel for evaluating the merits of a potential claim absent a valid medical authorization, the Tennessee Supreme Court reasoned that HIPAA regulations allow a healthcare provider to “use or disclose protected health information for treatment, payment, or health care operations,” with some exceptions for certain uses or disclosure requiring an authorization. 45 C.F.R. § 164.506(a). “Health care operations” include “[c]onducting or arranging for medical review, legal services, and auditing functions.” The United States Department of Health and Human Services (“HHS”), in its Frequently Asked Questions (“FAQ”) for Professionals pages of its website, indicates that a healthcare provider may use or disclose protected health information for litigation “whether for judicial or administrative proceedings, . . . or as part of the covered entity’s health care operations,” and HHS further recognizes that “[i]n most cases, the covered entity will share protected health information for litigation purposes with its lawyer, who is either a workforce member or a business associate.” HIPAA regulations define a “business associate” to include a person who provides legal services to or for a healthcare provider. 45 C.F.R. § 160.103. Therefore, HIPAA does not require the defendant to obtain a medical authorization to use a patient’s medical records in his possession and consult with counsel to evaluate the merits of a potential claim.
Source Bray v. Khuri, No. W2015-00397-SC-R11-CV
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