J.A.C., BY AND THROUGH HER NEXT FRIEND AND MOTHER, LESHA CARTER AND LESHA PATRICIA CARTER, INDIVIDUALLY
METHODIST HEALTHCARE MEMPHIS HOSPITALS, ET AL.
Session Date: August 16, 2016
from the Circuit Court for Shelby County No. CT-001882-15
Rhynette N. Hurd, Judge
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.
Podesta and Leslie R. Issacman, Memphis, Tennessee, for the
appellees, Methodist Healthcare-Memphis Hospitals and
Methodist Lebonheur Hospital.
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
B. Goldin, J., delivered the opinion of the Court, in which
Brandon O. Gibson and Kenny Armstrong, JJ., joined.
B. GOLDIN, JUDGE
and Procedural History
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.
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
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.
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.
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
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.
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.").
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.
the complaint had raised several constitutional issues,
including allegations that the Tennessee Health Care
Liability Act 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.
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,  respectively, were offered to support the
Plaintiffs' position that extraordinary cause should
excuse any finding of statutory noncompliance.
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.
written order entered on October 30, 2015, the trial court
concluded that the Plaintiffs had failed to substantially
comply with Tennessee Code Annotated section
29-26-121(a)(2)(E). In reaching this determination, the trial
court expressly found that the medical authorizations
provided were "woefully shy" of what was required.
In pertinent part, the trial court noted that the following
deficiencies existed: (1) the authorizations did not contain
the patient name; (2) the authorizations did not include a
description of the information to be used or disclosed; (3)
the authorizations did not state who was authorized to
disclose records; (4) the authorizations did not state who
was entitled to obtain records; and (5) with respect to the
claim of Jazyhia, there was nothing in the authorizations
that indicated the authority of the signer to authorize the
release of Jazyhia's records. In sum, the trial court
noted that the authorizations were blank "except for the
signature of [Ms. Carter] and the date."
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 Tennessee Code Annotated section
29-26-121(c). This fact, the trial court explained, resulted
in the Plaintiffs' claims being time-barred:
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 under Tenn. 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 under Tenn.
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
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.
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 Tennessee Code
Annotated section 29-26-121 remained to be decided. The trial
court would later hold a hearing on the constitutional issues
on December 4, 2015, and by order dated December 11, 2015,
the trial court rejected the Plaintiffs' constitutional
challenges. Incident to its rejection of the Plaintiffs'
constitutional claims,  the trial court upheld its
determination that the Plaintiffs' claims should be
dismissed with prejudice. This timely appeal followed.
reviewed the briefs submitted to us on appeal, we find that
the following issues are presented for our review:
1. Whether the trial court erred in refusing to consider the
Plaintiffs' written response to the Providers'
motions to dismiss.
2. Whether the Plaintiffs' medical authorizations
substantially complied with Tennessee Code Annotated section
3. Whether any mistakes in the Plaintiffs' medical
authorizations should be excused ...