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Short ex rel. Short v. Metro Knoxville HMA, LLC

Court of Appeals of Tennessee, Knoxville

August 23, 2019

CARL SHORT EX REL. ALLISON HOPE SHORT
v.
METRO KNOXVILLE HMA, LLC, ET AL.

          Session: July 19, 2019

          Appeal from the Circuit Court for Knox County No. 2-346-17 William T. Ailor, Judge

         This appeal concerns healthcare liability. Carl Short ("Plaintiff"), widower of Allison Short ("Decedent"), filed suit in the Circuit Court for Knox County ("the Trial Court") alleging negligence in his late wife's medical treatment against a number of physicians ("Physician Defendants") and Turkey Creek Medical Center ("the Hospital") ("Defendants," collectively). Defendants moved to dismiss on the basis of noncompliance with Tenn. Code Ann. § 29-26-121(a)(2)(E), which requires that pre-suit notice include a HIPAA compliant medical authorization allowing the healthcare provider receiving the notice to obtain complete medical records from every other provider that is sent a notice.[1] Plaintiff's authorizations allowed each provider to disclose complete medical records to each named provider although it did not state specifically that each provider could request records from the other. The Trial Court held that Plaintiff's authorizations failed to substantially comply with the statute's requirements because of this failure to explicitly allow each provider to obtain records. Plaintiff appeals. We hold that Plaintiff's method of permitting Defendants access to Decedent's medical records substantially complied with Tenn. Code Ann. § 29-26-121(a)(2)(E). We reverse the judgment of the Trial Court.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed; Case Remanded

          Weldon E. Patterson, Louis W. Ringger, III, and Grant E. Mitchell, Knoxville, Tennessee, for the appellant, Carl Short, individually and as next of kin of Allison Hope Short, deceased.

          James E. Looper, Jr., Carson W. King, and Nathaniel T. Gorman, Nashville, Tennessee, for the appellees, Sparrow Emergency Physicians, PLLC, Douglas E. Holland, M.D., and Michael D. Phillips, M.D.

          C.J. Gideon, Jr., J. Blake Carter, and Jordan K. Gibson, Nashville, Tennessee, for the appellee, Metro Knoxville HMA, LLC d/b/a Turkey Creek Medical Center.

          D. Michael Swiney, C.J., delivered the opinion of the court, in which John W. McClarty, J., joined.

          OPINION

          D. MICHAEL SWINEY, CHIEF JUDGE.

         Background

         Decedent, age 29, died in May 2016 while pregnant with her first child. Decedent had developed a pneumonic condition and infection over the course of three visits to the emergency room at the Hospital. Plaintiff filed suit in September 2017, after pre-suit notice was given, against Defendants for negligence in the death of Decedent and their unborn child. Plaintiff sent each Defendant a packet containing a letter, a list of relevant providers, and an authorization to disclose Decedent's entire medical record to each listed provider. An example of one of Plaintiff's notice letters reads as follows:

         Dear Dr. Holland:

Please be advised that Carl Short, surviving spouse of Allison Short, is giving you notice pursuant to T.C.A. 29-26-121 that a medical malpractice claim will be filed against you within the time period required by law. The claim will be filed by Carl Short, as surviving spouse of Allison Short. . . .
This firm will be representing Mr. Short. Our address and contact information appears in this letter. If you wish to correspond or talk with this firm about this matter, please direct your inquiry to the undersigned.
Attached please find a list of providers to whom a substantially similar notice is being sent pursuant to T.C.A. 29-26-121(a). These providers are: Michael D. Phillips, M.D., Leila K. Davis, M.D., Isham C. Hewgley, III, M.D., Turkey Creek Medical Center, Metro Knoxville HMA, LLC, Tennova Women's Care-Turkey Creek, Knoxville HMA Physician Management, LLC, William K. Webb, M.D., Stat Care Pulmonary Consultants, Summit Medical Group, PLLC, Ernest Brian Kemp, M.D., Knoxville Infectious Disease Consultants, P.C., William J. Smith, M.D., Sudha Raghavan Nair, M.D., and EmCare Physician Providers, Inc., a/k/a EmCare Physician Services, Inc, a/k/a EmCare, Inc.
As required by T.C.A. §29-26-121(a)(2)(E), Mr. Short has executed a HIP[A]A-compliant medical authorization authorizing you to obtain complete medical records from Michael D. Phillips, M.D., Leila K. Davis, M.D., Isham C. Hewgley, III, M.D., Turkey Creek Medical Center, Metro Knoxville HMA, LLC, Tennova Women's Care-Turkey Creek, Knoxville HMA Physician Management, LLC, William K. Webb, M.D., Stat Care Pulmonary Consultants, Summit Medical Group, PLLC, Ernest Brian Kemp, M.D., Knoxville Infectious Disease Consultants, P.C., William J. Smith, M.D., and Sudha Raghavan Nair, M.D., and and [sic] EmCare Physician Providers, Inc., a/k/a EmCare Physician Services, Inc, a/k/a EmCare, Inc.[2]
Neither this Notice, nor the medical authorization, waives the common law physician patient privilege concerning the care and treatment of Allison Short. We expect that you will not communicate with any person, other than your attorney, about the care and treatment of Allison Short.

(Footnote added). In the HIPAA authorization portion of the packet, the following was stated as to disclosure:

I authorize the use or disclosure of the above named individual's [Decedent's] health information as described below:
The following individual or organization is authorized to make the disclosure:
Provider: Douglas E. Holland, M.D.
The type and amount of information to be used or disclosed is as follows: (include dates where appropriate) . . . X entire record . . .
***
This information may be disclosed to and used by the following individual or organization for the purpose of a legal matter . . . [the listed providers]

         (Paragraph numbers omitted). In September 2018, Physician Defendants filed a motion to dismiss. A hearing was conducted on Physician Defendants' motion, and in November 2018, the Trial Court granted the motion. The Hospital moved to dismiss as well and its motion, too, was granted. In December 2018, the Trial Court entered its order of dismissal. The Trial Court stated:

This cause came to be heard before the Honorable William Ailor on November 2, 2018 for the Motion to Dismiss filed by Defendants Sparrow Emergency Physicians, PLLC, Douglas E. Holland, M.D., and Michael D. Phillips, M.D., and on November 30, 2018 for the Motion to Dismiss filed by Defendant Metro Knoxville HMA, LLC d/b/a Turkey Creek Medical Center and the Response and Motion to Reconsider filed by Plaintiffs. Based on the Motions to Dismiss, Memorandums in ...

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