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

Court of Appeals of Tennessee, Jackson

November 2, 2016

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.

          Session Date: August 16, 2016

         Appeal from the Circuit Court for Shelby County No. CT-001882-15 Rhynette N. Hurd, Judge

          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.

          OPINION

          ARNOLD B. GOLDIN, JUDGE

         Background and Procedural History[1]

         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 Act[2] 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 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.

         In a 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."

         In 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 alleged deficits.
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.

         Despite 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, [4] the trial court upheld its determination that the Plaintiffs' claims should be dismissed with prejudice. This timely appeal followed.

         Issues Presented

         Having 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 29-26-121(a)(2)(E).
3. Whether any mistakes in the Plaintiffs' medical authorizations should be excused ...

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