Session Heard at Nashville February 8, 2017
by Permission from the Court of Appeals Circuit Court for
Shelby County No. CT-004039 Donna M. Fields, Judge.
Code Annotated section 29-26-121(a)(2)(E) requires a person
who asserts a potential claim for healthcare liability to
include with pre-suit notice a HIPAA-compliant medical
authorization permitting the healthcare provider who receives
the notice to obtain complete medical records "from each
other provider being sent the notice." Tenn. Code Ann.
§ 29-26-121(a)(2)(E). Here, the plaintiff sent pre-suit
notice of her claim to a single healthcare provider and
included a medical authorization. After the plaintiff filed
suit, the defendant healthcare provider moved to dismiss,
asserting the plaintiff had failed to provide a
HIPAA-compliant medical authorization. The trial court
granted the motion, and the Court of Appeals affirmed. We
hold 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. We reverse the judgments of the trial
court and the Court of Appeals and remand this case to the
trial court for further proceedings.
R. App. P. 11 Appeal by Permission; Judgments of the Trial
Court and the Court of Appeals Reversed and Remanded.
E. Ragsdale, William R. Bruce, and Aaron L. Thomas, Memphis,
Tennessee, for the appellant, Deborah Bray.
T. McColgan, III and Sherry S. Fernandez, Cordova, Tennessee,
for the appellee, Radwan R. Khuri, M.D.
Bryan Smith, Memphis, Tennessee; John Vail, Washington, D.C.;
and Brian G. Brooks, Greenbrier, Arkansas, for amicus curiae,
Tennessee Association for Justice.
G. Lee, J., delivered the opinion of the Court, in which
Jeffrey S. Bivins, C.J., Cornelia A. Clark, Holly Kirby, and
Roger A. Page, JJ., joined.
G. LEE, JUSTICE.
the evening of March 25 and the morning of March 26, 2003,
Nigel Bray committed suicide at Saint Francis Hospital in
Memphis. Dr. Radwan Khuri provided psychiatric care to Mr.
Bray from the time of his hospital admission on March 20
until his death less than a week later.
March 2004, Deborah Bray, Mr. Bray's surviving spouse,
filed a healthcare liability case against Dr. Khuri alleging
negligence in the care and treatment of Mr. Bray. In May
2010, after the parties had engaged in pretrial discovery,
Mrs. Bray voluntarily dismissed the suit.
2011, Mrs. Bray sent Dr. Khuri pre-suit notice of her
healthcare liability claim as required by section
29-26-121(a)(1). The pre-suit notice letter advised Dr. Khuri
of a potential claim by Mrs. Bray for the wrongful death of
her husband arising out of the medical and psychiatric
treatment Dr. Khuri provided to Mr. Bray at Saint Francis
Hospital. The notice, which included a medical authorization
signed by Mrs. Bray, stated that Dr. Khuri was the only
healthcare provider receiving the notice.
September 2011, Mrs. Bray filed a healthcare liability suit
against Dr. Khuri. Dr. Khuri moved to dismiss the case,
asserting that Mrs. Bray had failed to provide a
HIPAA-compliant medical authorization under section
29-26-121(a)(2)(E). Dr. Khuri argued that because the
authorization was incomplete and not HIPAA-compliant,
could not discuss Mr. Bray's medical records with counsel
to prepare a defense to the potential claim. Mrs. Bray
responded, in part, that no ...