Session Date October 01, 2014
Appeal from the Circuit Court for Knox County No. 144311 Dale C. Workman, Judge
Sidney W. Gilreath, Cary L. Bauer, and Matthew B. Long, Knoxville, Tennessee, for the appellant, Donna L. Hamilton.
James H. London, Jennifer P. Taylor, and Andrew R. Tillman, Knoxville, Tennessee, for the appellees, Abercrombie Radiological Consultants, Inc. and Donna K. Culhane, M.D.
Kenny Armstrong, J., delivered the opinion of the Court, in which J. Steven Stafford, P.J., W.S., and Thomas R. Frierson, II, J., joined.
KENNY ARMSTRONG, JUDGE
On May 12, 2010, Decedent was transported to Mercy Medical Center-North where he presented with "mental status changes and bowel and bladder incontinence." A CT scan was ordered with the indications for CT scan listed as "Syncopal episode found unresponsive with history of hypertension." Appellee, Dr. Donna K. Culhane, an employee of Appellee Abercrombie Radiological Consultants, Inc., read the CT scan and interpreted it as a "stable negative head CT." Instead, the subject CT scan, according to Appellant, demonstrated "swelling and occlusion of the left middle cerebral artery." Decedent's condition at the time of admission did not improve, and on May 13, 2010, an MRI was ordered. The MRI conducted that same day showed a developing ischemic stroke on the left side of Decedent's brain. The following day, on May 14th, Decedent suffered a diffuse left middle cerebral artery distribution stroke and died.
On August 31, 2011, Appellant Donna L. Hamilton filed this action against the Appellees for medical malpractice and the wrongful death of her husband. In her complaint, Appellant asserts that Dr. Culhane's failure to correctly interpret the Decedent's CT scan resulted in him not receiving the appropriate medical treatment, which ultimately led to the stroke that caused his death. In anticipation of filing this health care liability action, on January 20, 2010, Appellant had one of her attorneys send a pre-suit notice letter to each of the Appellees. Each notice letter included a HIPAA medical release. The medical release, however, had an open date line. According to Appellant, the date line was intentionally left open so that Appellees could fill it in at their convenience, and so the release form would not "become stale."
On January 15, 2014, the Appellees moved to dismiss the complaint filed herein for noncompliance with Tennessee Code Annotated Section 29-26-121(a)(2)(E). In support of their motion, the Appellees asserted that the Appellant failed to include, with her notice letter, a HIPAA compliant medical authorization for the release of Decedent's medical records. While the medical release was signed by an authorized party, Appellees argued it was not dated as required pursuant to Tennessee Code Annotated Section 29-26-121 et seq. and federal regulations, 45 C.F.R. §164.508.
The trial court heard the motion to dismiss on January 24, 2014. Following the hearing, by order dated February 6, 2014, the trial court granted Appellees' motion to dismiss, ruling in relevant part that:
Specifically, the Court finds that the medical authorization included in the pre-suit notice provided by Plaintiff to Abercrombie Radiological Consultants, Inc., and Donna K. Culhane, M.D., was non-HIPAA compliant. Consequently the providers that received pre-suit notice from Plaintiff were prejudiced by being unable to obtain copies of Plaintiff's decedent's relevant medical records during the pre-suit notice period.
It is hereby ORDERED, that the Motion to Dismiss of Defendant, Abercrombie Radiological Consultants, Inc., and Donna K. Culhane, M.D., is GRANTED. The Court further finds and holds that the proper sanction for Plaintiff's failure to comply with Tennessee Code Annotated §29-26-121(a)(2)(E) is dismissal with prejudice, as Plaintiff's case was therefore filed outside the applicable statute of limitations. Accordingly, this action against these Defendants is hereby dismissed with prejudice.
Appellant filed a timely appeal.
The issues raised by Appellant are as follows:
1. Whether dismissal is the proper sanction for an open date line on a HIPAA form that accompanies notice in a health care liability action under ...