healthcare liability claim in Tennessee

2023Thus, the single provider exception is narrow and limited to the case where only a single provider is named as a defendant. 3 We discuss the second Bray rule, the health care operations exception, infra. This Court has delineated the two rules thus: (1) “a plaintiff need not provide a HIPAA-compliant authorization when a single healthcare provider is given pre-suit notice of a healthcare liability claim,” and (2) a health care provider may use or disclose protected health information for its health care operations and does not need to obtain a medical authorization in order “to use a patient’s

2022According to the Wenzler court, Bray established two points: (1) “a plaintiff need not provide a HIPAA-compliant authorization when a single healthcare provider is given pre-suit notice of a healthcare liability claim,” and (2) a health care provider may use or disclose protected health information for its health care operations and does not need to obtain a medical authorization in order “to use a patient’s medical records in [its] possession and consult with counsel to evaluate the merits of a potential claim.” Wenzler, 2018 WL 6077847 , at *8 (quoting Bray, 523 S.W.3d at 622–23); see also B

2026However, a “less-than-perfect” compliance with the requirements for the contents of pre-suit notice “should not derail a healthcare liability claim” because “[n]on-substantive errors and omissions will not always prejudice defendants.” Id. at 555 (examining errors in Health Insurance Portability and Accountability Act (HIPAA) compliance under subsection -121(a)(2)(E)).

2026Although “less- than-perfect compliance with Tenn. Code Ann. § 29-26-121 (a)(2)(E) [] should not derail a healthcare liability claim,” Stevens, 418 S.W.3d at 555 , the required notice must still “be sufficient to enable defendants to obtain and review a plaintiff’s relevant medical records.” Id. (citing 45 C.F.R. § 164.508 (a)(1)).

2023Instead, the Tennessee Supreme Court explained that “[n]on-substantive errors and omissions” and “[a] plaintiff’s less-than- perfect compliance” with [subsection] 29-26-121(a)(2)(E) will “not derail a healthcare liability claim” so long as the medical authorization provided is “sufficient to enable defendants to obtain and review a plaintiff’s relevant medical records.” Thus, we held that “a plaintiff must substantially comply, rather than strictly comply, with the requirement[ ] of [subsection] 29-26- 121(a)(2)(E).” Thurmond v. Mid-Cumberland Infectious Disease Consultants, PLC, 433 S.W.3d 51

2018In a later case, the supreme court summarized Stevens as holding that “non-substantive errors and omissions and a plaintiff's less-than-perfect compliance with subsection 29-26-121(a)(2)(E) will not derail a healthcare liability claim so long as the medical authorization provided is sufficient to enable defendants to obtain and review a plaintiff’s relevant medical records.” Thurmond v. Mid-Cumberland Infectious Disease Consultants, PLC, 433 S.W.3d 512, 519-20 (Tenn. 2014) (quotations and bracketing omitted).

2023See Wenzler, 2018 WL 6077847 , at *8 (holding that a claim against a dentistry practice and dentist employed by the practice did not fall within the Bray single provider exception); Lawson v. Knoxville Dermatology Grp., P.C., 544 S.W.3d 704, 711 (Tenn. Ct. App. 2017) (holding that a claim against a dermatology practice and a physician’s assistant employed by the practice did not fall within the Bray single provider exception); see also Bray, 523 S.W.3d at 623 (citing Roberts v. Prill, No. E2013-02202-COA-R3-CV, 2014 WL 2921930 , at *1 (Tenn. Ct. App. June 26, 2014)) (noting that Roberts would

2020Similarly, in Lawson v. Knoxville Dermatology Grp, P.C., we affirmed the dismissal of a healthcare liability claim because the plaintiff’s pre-suit medical authorizations failed to identify the providers authorized to disclose records—another “core element” under the federal regulations. 544 S.W.3d 704, 712 (Tenn. Ct. App. 2017); see 45 C.F.R. § 164-508 (c)(1)(ii) (“A valid authorization . . . must contain at least the following elements . . . the name or other specific identification of the person(s) , or class of persons, authorized to make the requested use or disclosure . . . .”).

2022Tenn. Code Ann. § 29-26-122 ; Myers, 382 S.W.3d at 309-10 ; see also Sirbaugh v. Vanderbilt Univ., 469 S.W.3d 46, 51 (Tenn. Ct. App. 2014).

2014See also Myers, 382 S.W.3d at 309 (holding that plaintiffs must strictly comply with 29-26-121(a)(1) because “[w]ithout the notice required by Tennessee Code Annotated section 29-26-121[a][1], the defendants were not apprised that Mr. Myers continued to assert a claim against them and that a suit would be filed and -7- were therefore deprived of the notice required by Tennessee Code Annotated Section 29-26-121”); Tenn. Code Ann. § 29 - 26-122(c) (mandating dismissal with prejudice when a plaintiff has failed to offer proof of a good faith claim prior to bringing defendants into litigation). *

2026Neither of the Bray exceptions is applicable here. -9- COA-R3-CV, 2018 WL 6077847 , *11 (Tenn. Ct. App. Nov. 20, 2018 (citing Hamilton, 487 S.W.3d at 120 ) (same).

2026This Court has held that, “Defendants are clearly prejudiced when unable, due to a form procedural error, to obtain medical records needed for their legal defense.” Lawson, 544 S.W.3d at 709-710 (citing Hamilton v. Abercrombie Radiological Consultants, Inc., 487 S.W.3d 114, 120 (Tenn. Ct. App. 2014), perm. app. denied (Tenn. May 15, 2015)); Stevens, 418 S.W.3d at 556 ; Lott v. Mallett, No. W2020-01233-COA-R3-CV, 2022 WL 894755 , at *7 (Tenn. Ct. App. March 25, 2022) (holding that appellant failed to substantially comply with Tennessee Code Annotated section 29-26-121(a)(2)(E) because her autho

2022Tenn. Code Ann. § 29-26-122 ; Myers, 382 S.W.3d at 309-10 ; see also Sirbaugh v. Vanderbilt Univ., 469 S.W.3d 46, 51 (Tenn. Ct. App. 2014).

2021See id.

2019Thomas Hosp., 983 S.W.2d 225 , 229–30 (Tenn. 1998); Payne v. Caldwell, 796 S.W.2d 142, 143 (Tenn. 1990)) (footnote omitted).