Melissa Martin v. Rolling Hills Hospital, LLC

04/29/2020

IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

May 30, 2019 Session

MELISSA MARTIN, ET AL. v. ROLLING HILLS HOSPITAL, LLC, ET AL.

Appeal by Permission from the Court of Appeals

Circuit Court for Williamson County

No. 2016-8 Michael Binkley, Judge

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No. M2016-02214-SC-R11-CV

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We granted permission to appeal to clarify the role of prejudice in a court’s determination

of whether a plaintiff in a health care liability action substantially complied with the

statutory pre-suit notice requirements of Tennessee Code Annotated section 29-26-121

(Supp. 2019) (“Section 121”) and to clarify the burdens each party bears when seeking to

establish, or to challenge, compliance with Section 121. We hold that prejudice is

relevant to the determination of whether a plaintiff substantially complied with Section

121, but it is not a separate and independent analytical element. We also hold that a

plaintiff bears the initial burden of either attaching documents to her health care liability

complaint demonstrating compliance with Section 121 or of alleging facts in the

complaint demonstrating extraordinary cause sufficient to excuse any noncompliance

with Section 121. A defendant seeking to challenge a plaintiff’s compliance with Section

121 must file a Tennessee Rule of Civil Procedure 12.02(6) motion to dismiss for failure

to state a claim. See Myers v. AMISUB (SFH), Inc., 382 S.W.3d 300, 307 (Tenn. 2012).

A defendant’s Rule 12.02(6) motion must include allegations that identify the plaintiff’s

noncompliance and explain “the extent and significance of the plaintiff’s errors and

omissions and whether the defendant was prejudiced by the plaintiff’s noncompliance.”

Stevens ex rel. Stevens v. Hickman Cmty. Health Care Servs., Inc., 418 S.W.3d 547, 556

(Tenn. 2013). One means of satisfying this burden is to allege that a plaintiff’s Section

121(a)(2)(E) medical authorization lacks one or more of the six core elements federal law

requires for compliance with the Health Insurance Portability and Accountability Act of

1996 (“HIPAA”). See Pub. L. No. 104-191, 110 Stat. 1936 (1996) (codified as amended

in scattered sections of 18, 26, 29, and 42 of the United States Code). Once a defendant

files a Rule 12.02 motion that satisfies this prima facie showing, the burden then shifts to

the plaintiff either to establish substantial compliance with Section 121—which includes

the burden of demonstrating that the noncompliance did not prejudice the defense—or to

demonstrate extraordinary cause that excuses any noncompliance. In this case, the

defendants met their burden by showing that the plaintiffs’ medical authorizations lacked

three of the six core elements federal law requires for HIPAA compliance. This showing

shifted the burden to the plaintiffs, and they failed to establish either substantial

compliance or extraordinary cause to excuse their noncompliance. As a result of this

noncompliance with Section 121(a)(2)(E), the plaintiffs were not entitled to the 120-day

extension of the statute of limitations. Therefore, their first lawsuit, filed after the one-

year statute of limitations expired, was not “commenced within the time limited by a rule

or statute of limitation,” Tenn. Code Ann. § 28-1-105(a) (2017), so the plaintiffs cannot

rely on the one-year savings statute to establish the timeliness of this lawsuit.

Accordingly, we reverse the judgment of the Court of Appeals and reinstate the trial

court’s judgment dismissing the plaintiffs’ health care liability action as time-barred.

Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Appeals

Vacated; Judgment of the Circuit Court Reinstated

CORNELIA A. CLARK, J., delivered the opinion of the Court, in which JEFFREY S. BIVINS,

C.J., and SHARON G. LEE, and ROGER A. PAGE, JJ., joined. HOLLY KIRBY, J., filed an

opinion concurring in part and dissenting in part.

Edward A. Hadley, Linda A. Nathanson, and Matthew J. Buchbinder, Nashville,

Tennessee, for the appellant, Matthew Karl, M.D.

Ashley D. Cleek and Brandon J. Stout, Jackson, Tennessee, for the appellants, Rolling

Hills Hospital, LLC, and Universal Health Services, Inc.

Trudy Bloodworth, Nashville, Tennessee; and Dawn M. Smith, Dallas, Texas (pro hac

vice), for the appellees, Melissa Martin, on behalf of herself and minor children C.H.,

A.H., Jr., wrongful death beneficiaries of Chelsey Elizabeth Kay Helwig, deceased, and

James Harrison.

W. Bryan Smith, Memphis, Tennessee; John Vail, Washington, D.C.; and Brian G.

Brooks, Greenbriar, Arkansas, for Amicus Curiae Tennessee Trial Lawyers Association.

Christopher A. Vrettos, Nashville, Tennessee, for Amicus Curiae Tennessee Defense

Lawyers Association.

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OPINION

I. Factual and Procedural Background1

On June 25, 2013, twenty-three-year-old Chelsey Elizabeth Kay Helwig (“Ms.

Helwig” or “decedent”) presented to Skyline Medical Center complaining of suicidal

ideation and depressive disorder. After an examination, she was transferred to Rolling

Hills Hospital, LLC (“Rolling Hills”), a mental health facility. On June 26, 2013, she

was admitted to Rolling Hills for specialized in-patient psychiatric care for suicidal

ideation and detoxification from opiates, benzodiazepines, alcohol, and cocaine. Dr.

Matthew Karl (“Dr. Karl”), who specialized in psychiatric medicine and provided care

and treatment to patients at Rolling Hills, evaluated Ms. Helwig and prescribed

medications for her. On the morning of June 28, 2013, Rolling Hills’ staff discovered

Ms. Helwig unresponsive in her hospital room. They began CPR and called 9-1-1.

Emergency personnel arrived a short time later and transferred her to Williamson

Medical Center. Subsequently, Ms. Helwig was transferred to Vanderbilt Medical

Center, where she died later that day.

On October 17, 2014, the decedent’s mother, Melissa Martin, and her father,

James Harrison, filed a health care liability action. They sued in their individual

capacities, and the decedent’s mother also sued on behalf of the decedent’s estate and the

decedent’s two minor children (collectively “the Plaintiffs”). The Plaintiffs named as

defendants Rolling Hills, Dr. Karl, and Universal Health Services, Inc. (“UHS”), the

parent company that owned, managed, controlled, and/or operated Rolling Hills

(collectively “the Defendants”). The Plaintiffs alleged that the Defendants were

negligent in their evaluation, treatment, monitoring, and care of the decedent and that

their negligence caused her death.

As with any health care liability lawsuit, the Plaintiffs were required to provide the

Defendants with written pre-suit notice at least sixty days before filing their health care

liability action. See Tenn. Code Ann. § 29-26-121(a)(1). On October 4, 2013,

approximately a year before they filed their complaint, the Plaintiffs attempted to comply

with Section 121 by sending a letter to both Rolling Hills and UHS (collectively, “the

Hospital Defendants”) notifying them of their intent to file suit. Along with each letter,

the Plaintiffs included a separate document purporting to list “all providers being sent a

1

Because this matter was dismissed on defense motions, this factual summary is taken from the

complaint and other pleadings in the record on appeal. Citations and quotations in this opinion are to the

current version of statutes because the relevant statutory text remains the same as it was when this matter

began in the trial court.

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notice[,]” but this document listed only Rolling Hills. The Plaintiffs also included two

medical authorizations with each letter, but the Plaintiffs failed to list on any of these four

authorizations the name and address of the provider authorized to release medical

records. They also left blank the space on the medical authorizations designated for an

expiration or event date. Finally, while the decedent’s mother signed the medical

authorizations in her representative capacity, she failed to provide a description or

documentation of her authority to act for the decedent.

The Plaintiffs first attempted to provide Dr. Karl with pre-suit notice several

months later, on June 20, 2014. As with the Hospital Defendants, the Plaintiffs sent Dr.

Karl a letter notifying him of their intent to file suit and included a separate document

purporting to list “all providers being sent a notice[,]” but this document listed only Dr.

Karl and Rolling Hills. Dr. Karl’s letter included two medical authorizations, but, like

the medical authorizations sent to the Hospital Defendants, the Plaintiffs failed to list the

name and address of the provider authorized to release medical records to Dr. Karl. The

Plaintiffs also left blank the space on the medical authorizations designated for an

expiration or event date. Finally, while the decedent’s mother signed the medical

authorizations in her representative capacity, she failed to provide a description or

documentation of her authority to act for the decedent.

As already noted, the document the Plaintiffs included with their October 2013

pre-suit notice letters to the Hospital Defendants did not list Dr. Karl as a provider who

would be named as a defendant. Additionally, prior to filing the lawsuit, the Plaintiffs

never informed the Hospital Defendants that they had sent Dr. Karl a pre-suit notice

letter. Nor did the Plaintiffs ever send the Hospital Defendants a medical authorization

permitting them to obtain the decedent’s medical records from Dr. Karl.

After the Plaintiffs filed their lawsuit in October 2014, the Defendants objected

that the Plaintiffs had failed to provide pre-suit notice in compliance with Section 121.2

However, before the trial court ruled on the matter, the Plaintiffs voluntarily nonsuited

their lawsuit. Tenn. R. Civ. P. 41.01.3 On January 27, 2015, the trial court entered an

order dismissing the lawsuit without prejudice.

2

The record in this appeal does not indicate the manner in which the Defendants objected to the

Plaintiffs’ pre-suit notice, but it is undisputed that the Defendants raised the issue before the Plaintiffs

voluntarily nonsuited the action.

3

Rule 41.01 states in pertinent part:

(1) Subject to the provisions of Rule 23.05, Rule 23.06, or Rule 66 or of any

statute, and except when a motion for summary judgment made by an adverse party is

pending, the plaintiff shall have the right to take a voluntary nonsuit to dismiss an action

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Less than a year later, on January 7, 2016, the Plaintiffs filed a second lawsuit

alleging the same health care liability claims against the Defendants. To establish the

timeliness of this second lawsuit, the Plaintiffs relied on the savings statute, which

provides:

If the [original] action is commenced within the time limited by a rule or

statute of limitation, but the judgment or decree is rendered against the

plaintiff upon any ground not concluding the plaintiff’s right of action, or

where the judgment or decree is rendered in favor of the plaintiff, and is

arrested, or reversed on appeal, the plaintiff, or the plaintiff’s

representatives and privies, as the case may be, may, from time to time,

commence a new action within one (1) year after the reversal or arrest.

Tenn. Code Ann. § 28-1-105(a).

On January 28, 2016, the Hospital Defendants filed a joint motion to dismiss the

second lawsuit as time-barred. The Hospital Defendants acknowledged that the Plaintiffs

filed the first lawsuit within 120 days of the expiration of the statute of limitations and

that the first lawsuit would have been timely had the Plaintiffs provided pre-suit notice

substantially compliant with Section 121. See Tenn. Code Ann. § 29-26-121(c) (“When

notice is given to a provider as provided in this section, the applicable statutes of

limitations and repose shall be extended for a period of one hundred twenty (120)

days . . . .”). The Hospital Defendants contended, however, that the Plaintiffs’ pre-suit

notice was not substantially compliant with Section 121.4 In particular, the Hospital

Defendants asserted that: (1) the Plaintiffs failed to mail the pre-suit notice letter to the

Hospital Defendants’ registered agents for service of process, as required by Section

121(a)(3)(B)(ii); (2) the Plaintiffs’ medical authorizations lacked three core elements

mandated by federal law and were therefore not HIPAA compliant as required by Section

121(a)(2)(E); and (3) the Plaintiffs failed to notify the Hospital Defendants that Dr. Karl

without prejudice by filing a written notice of dismissal at any time before the trial of a

cause and serving a copy of the notice upon all parties . . . .

....

(3) A voluntary nonsuit to dismiss an action without prejudice must be followed

by an order of voluntary dismissal signed by the court and entered by the clerk. The date

of entry of the order will govern the running of pertinent time periods.

4

It is undisputed that the Plaintiffs provided timely and fully compliant pre-suit notice to the

Defendants before filing their second lawsuit. This appeal pertains only to the pre-suit notice the

Plaintiffs provided before filing their first lawsuit.

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was a potential defendant as required by Section 121(a)(2)(D). Because the Plaintiffs’

pre-suit notice was not substantially compliant with Section 121, the Hospital Defendants

asserted that the Plaintiffs were not entitled to the 120-day extension of the statute of

limitations, so their first lawsuit was not timely filed. As a result, the Hospital

Defendants asserted that the Plaintiffs could not rely on the one-year savings statute to

establish the timeliness of their second lawsuit.

In March 2016, Dr. Karl filed his own motion to dismiss in which he joined the

Hospital Defendants’ motion to dismiss and adopted their arguments.5 In addition, Dr.

Karl asserted that he had attempted to use the medical authorization the Plaintiffs

provided “to obtain [Rolling Hills’] records pertaining to the decedent[,]” but “[t]he

hospital [had] declined to produce the records because of the defective authorization.”

Dr. Karl argued that the Plaintiffs’ noncompliance thus deprived him of “the opportunity

to evaluate the medical records and the merits of the [Plaintiffs’] claim prior to suit being

filed.”

In separate responses to the motions to dismiss, the Plaintiffs argued that they had

substantially complied with the pre-suit notice requirements of Section 121 and that any

noncompliance had not prejudiced the Defendants. The Plaintiffs did not rely upon or

attempt to establish that extraordinary cause excused their noncompliance. As to

prejudice, the Plaintiffs did not submit affidavits but merely argued in their responses to

the motions that they had engaged in settlement negotiations with the Hospital

Defendants from April to June 2014, and that these negotiations “equipped [the Hospital

Defendants] with the means to evaluate the substantive merits of [the Plaintiffs’] claims

by early discovery and early access to [the decedent’s] medical records.” The Plaintiffs

stated that the Hospital Defendants called Dr. Karl’s conduct into question during the

settlement negotiations, so the Hospital Defendants clearly were aware that Dr. Karl was

a potential defendant. The Plaintiffs also argued without relying upon any affidavit or

defense admission that the Hospital Defendants were not prejudiced by any deficiencies

in the pre-suit notice relating to Dr. Karl because he was an employee or agent of Rolling

Hills and had no relevant medical records aside from those the Hospital Defendants

already had in their possession.

On August 4, 2016, the trial court held a hearing on the Defendants’ motions to

dismiss. By a written order entered on September 19, 2016, the trial court granted the

Defendants’ motions and dismissed the lawsuit. The trial court based its decision solely

5

For reasons that are not apparent, the record contains two identical motions to dismiss by Dr.

Karl, one filed on March 4 and another filed on March 16, 2016.

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on the Plaintiffs’ failure to provide the Defendants with HIPAA-compliant medical

authorizations as required by Section 121(a)(2)(E).6 The trial court pointed out that the

medical authorizations “failed to indicate the providers that were authorized to make

required disclosures, failed to list an expiration date, and left blank section B on the []

authorization form.” When rejecting the Plaintiffs’ argument that the Defendants were

not prejudiced by the defective authorizations, the trial court quoted an earlier decision of

the Court of Appeals stating, “defendants were prejudiced by the fact that they were

unable to obtain the patient’s medical records due to some flaw in the medical

authorization.” Hughes v. Henry Cnty. Med. Ctr., No. W2014-01973-COA-R3-CV, 2015

WL 3562733, at *4 (Tenn. Ct. App. June 9, 2015). The trial court also rejected the

Plaintiffs’ argument that the Defendants were not prejudiced “because they already had

possession of the relevant documents.” The trial court explained that the “omissions” on

the medical authorizations “were significant because without this information, even if

[the] Defendants were already in possession of certain documentations, the authorizations

were useless” and “would not have allowed Defendants to request or obtain records from

any of the other providers.” The trial court also pointed out that the Plaintiffs had failed

to respond with any showing of extraordinary cause to excuse the noncompliance. See

Tenn. Code Ann. § 29-26-121(b) (“The court has discretion to excuse compliance with

this section only for extraordinary cause shown.”). Based on these findings, the trial

court ruled: “Due to their substantial non-compliance [with Section 121(a)(2)(E)],

Plaintiffs were not originally entitled to the 120-day extension of the statute of limitations

under . . . Section 29-26-121(c). Without the 120-day extension, Plaintiffs’ initial filing

was time-barred, and as such, the current matter must be dismissed.” The Plaintiffs

appealed.

The Court of Appeals reversed. Martin v. Rolling Hills Hosp., LLC, No. M2016-

02214-COA-R3-CV, 2018 WL 3097231, at *9 (Tenn. Ct. App. June 22, 2018), perm.

app. granted (Tenn. Nov. 16, 2018). The intermediate appellate court commented that the

trial court “[had] not explain[ed] its conclusion that the authorizations were ‘useless’ or

reach[ed] the question of whether Defendants were prejudiced by Plaintiffs’ errors.” Id.

at *8. Addressing Dr. Karl’s “attempt[] to use the authorizations to obtain records,” id. at

6

The trial court also determined that the Defendants were not prejudiced by the Plaintiffs’ failure

to include in their pre-suit notice the names and addresses of all providers sent pre-suit notice, as required

by Section 121(a)(2)(D) or by the Plaintiffs’ failure to mail pre-suit notice letters to Defendants’

registered agents for service of process as required by Section 121(a)(3)(B)(ii). We need not address these

determinations because our holding that the Plaintiffs failed to substantially comply with Section

121(a)(2)(E) is dispositive.

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*8, the Court of Appeals observed that the letters exchanged between counsel for Dr.

Karl and Rolling Hills did not “reflect a good faith attempt on the part of Defendants to

secure the records,” but instead showed “an effort by their counsel to establish a record

upon which to present this argument[,]” id. at *8 n.7. The Court of Appeals determined

that the Defendants had not shown prejudice because Dr. Karl was an “employee and/or

ostensible agent” of Rolling Hills, and UHS was “merely a corporate entity (not

Provider/Health Plan) and obviously had no treatment records regarding Ms. Helwig.”

Id. at *9. Based on its conclusions that the Plaintiffs had substantially complied with

Section 121(a)(2) and that the Defendants had failed to show prejudice from the

Plaintiffs’ noncompliance, the Court of Appeals concluded that the Plaintiffs’ first

lawsuit was timely filed and that the savings statute applied to their second lawsuit. Id.

Accordingly, the Court of Appeals reversed the trial court’s decision and remanded the

case for further proceedings. Id.

This Court granted the Defendants’ applications for permission to appeal and

directed the parties to address:

1) the proper role of prejudice in the substantial compliance analysis and

determination; and

2) the proper burden of production and/or proof with respect to the presence

or absence of prejudice for purposes of the substantial compliance analysis

and determination, including whether or not the Court should consider the

adoption of a rebuttable presumption of prejudice where the pre-suit notice

is not accompanied by a medical authorization which is facially compliant

with HIPAA.

Martin v. Rolling Hills Hospital, No. M2016-02214-SC-R11-CV (Tenn. Nov. 16, 2018)

(Order) (granting applications for permission to appeal).

II. Standard of Review

The Defendants filed motions to dismiss under Rule 12.02(6) of the Tennessee

Rules of Civil Procedure, arguing that the lawsuit is time-barred by the one-year statute

of limitations because the savings statute does not apply. A Rule 12.02(6) motion is an

appropriate means of invoking the statute of limitations as a ground for dismissing a

complaint. Redwing v. Catholic Bishop for Diocese of Memphis, 363 S.W.3d 436, 455

n.11 (Tenn. 2012). The Defendants’ statute of limitations argument is also premised on

the assertion that the Plaintiffs’ first lawsuit was not timely filed because the Plaintiffs

failed to provide pre-suit notice substantially compliant with Section 121. Rule 12.02(6)

is the proper vehicle for challenging a plaintiff’s compliance with the pre-suit notice

requirements of Section 121. Myers, 382 S.W.3d at 307. However, because the

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Defendants submitted matters outside the pleadings in support of their 12.02(6) motions,

the motions “shall be treated as [motions] for summary judgment . . . .” Tenn. R. Civ. P.

12.02; see Runions v. Jackson-Madison Cnty. Gen. Hosp. Dist., 549 S.W.3d 77, 81 n.5

(Tenn. 2018). Summary judgment is appropriate when “the pleadings, depositions,

answers to interrogatories, and admissions on file, together with the affidavits, if any,

show that there is no genuine issue as to any material fact and that the moving party is

entitled to a judgment as a matter of law.” Tenn. R. Civ. P. 56.04. We review a trial

court’s decision on a motion for summary judgment de novo without a presumption of

correctness. Rye v. Women’s Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 250

(Tenn. 2015) (citing Bain v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997)).

“[W]hether [Plaintiffs] ha[ve] demonstrated extraordinary cause that would excuse

compliance with [Section 121] is a mixed question of law and fact, and our review of that

determination is de novo with a presumption of correctness applying only to the trial

court’s findings of fact and not to the legal effect of those findings.” Myers, 382 S.W.3d

at 307. Additionally, issues of statutory construction are questions of law, to which

de novo review applies, with no presumption of correctness afforded to lower court

decisions. Thurmond v. Mid-Cumberland Infectious Disease Consultants, PLC, 433

S.W.3d 512, 516-17 (Tenn. 2014) (citing Baker v. State, 417 S.W.3d 428, 433 (Tenn.

2013)). Thus, de novo review applies to the issues presented in this appeal.

III. Analysis

At least sixty days before filing a complaint alleging a health care liability claim, a

plaintiff in Tennessee must give written notice of the claim to each health care provider

that will be named as a defendant in the lawsuit. Tenn. Code Ann. § 29-26-121(a)(1)

(“Any person, or that person’s authorized agent, 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

based upon health care liability in any court of this state.”). This statutory requirement of

timely, written pre-suit notice is mandatory and may be satisfied only by strict

compliance; substantial compliance is inadequate. Myers, 382 S.W.3d at 309; see also

Runions, 549 S.W.3d at 86.

Section 121(a)(2) defines the information—the content—that a plaintiff must

include in the pre-suit notice:

The notice shall include:

(A) The full name and date of birth of the patient

whose treatment is at issue;

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(B) The name and address of the claimant authorizing

the notice and the relationship to the patient, if the

notice is not sent by the patient;

(C) The name and address of the attorney sending the

notice, if applicable;

(D) A list of the name[s] and address[es] of all

providers being sent a notice; and

(E) A HIPAA compliant medical authorization

permitting the provider receiving the notice to obtain

complete medical records from each other provider

being sent a notice.

Tenn. Code Ann. § 29-26-121(a)(2); John A. Day, Med Mal Makeover 2009 Act

Improves on ’08: The New New Medical Malpractice Notice & Certificate of Good Faith

Statutes, 45 Tenn. B.J. 14, 14-16 (July 2009) (discussing Section 121(a)(2) and the pre-

suit notice content requirements). These statutory content requirements are directory and

may be satisfied by substantial compliance. Stevens, 418 S.W.3d at 555 (evaluating

whether a plaintiff substantially complied with Section 121(a)(2)(E)); see also Arden v.

Kozawa, 466 S.W.3d 758, 762-64 (Tenn. 2015) (holding that the requirements of Section

121(a)(3)(B) and (a)(4) may be satisfied through substantial compliance); Thurmond, 433

S.W.3d at 520 (holding that the affidavit requirement of Section 121(a)(3)(B) and (a)(4)

may be satisfied by substantial compliance).

This Court has explained the distinct but interdependent purposes Section 121

serves, stating that it “ensures that a plaintiff give[s] timely notice to a potential

defendant of a health care liability claim so it can investigate the merits of the claim and

pursue settlement negotiations before the start of the litigation.” Runions, 549 S.W.3d at

86 (citing Foster v. Chiles, 467 S.W.3d 911, 915 (Tenn. 2015)). “Pre-suit notice benefits

the parties by promoting early resolution of claims, which also serves the interest of

judicial economy.” Id. (citing Foster, 467 S.W.3d at 915). The first three content

requirements of Section 121(a)(2) “facilitate early resolution of healthcare liability claims

by requiring plaintiffs to advise defendants who the plaintiff is, how to reach him or her,

and how to contact his or her attorney.” Stevens, 418 S.W.3d at 554. The last two

requirements “serve an investigatory function, equipping defendants with the actual

means to evaluate the substantive merits of a plaintiff’s claim by enabling early discovery

of potential co-defendants and early access to a plaintiff’s medical records.” Id.

With these principles in mind, we return to the dispositive issue in this appeal:

whether the Plaintiffs substantially complied with Section 121(a)(2) before filing their

first lawsuit. Stevens ex rel. Stevens v. Hickman Community Health Care Services, Inc.,

provides the framework for our analysis of this issue. In Stevens, the plaintiff failed to

provide a “‘HIPAA compliant medical authorization permitting the provider receiving the

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notice to obtain complete medical records from each other provider being sent a notice.’”

Id. at 555 (quoting Tenn. Code Ann. § 29-26-121(a)(2)(E)). We pointed out that HIPAA

generally “prohibits medical providers from using or disclosing a plaintiff’s medical

records without a fully compliant authorization form.” Id. We therefore declared that “it

is a threshold requirement of [Section 121] that the plaintiff’s medical authorization must

be sufficient to enable defendants to obtain and review a plaintiff’s relevant medical

records.” Id. And we emphasized that “[f]ederal regulations” mandate the following six

“core” elements for a HIPAA compliant medical authorization:

(i) A description of the information to be used or disclosed that

identifies the information in a specific and meaningful fashion.

(ii) The name or other specific identification of the person(s),

or class of persons, authorized to make the requested use or

disclosure.

(iii) The name or other specific identification of the person(s),

or class of persons, to whom the covered entity may make the

requested use or disclosure.

(iv) A description of each purpose of the requested use or

disclosure . . . .

(v) An expiration date or an expiration event that relates to the

individual or the purpose of the use or disclosure . . . .

(vi) Signature of the individual and date. 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.

Id. at 555-56 (quoting 45 C.F.R. § 164.508(c)(1) (2013)). We noted that omitting any of

these core elements may render a medical authorization noncompliant with HIPAA and

ineffective “to enable defendants to obtain and review a plaintiff’s relevant medical

records.” Id. at 555 (citing 45 C.F.R. § 164.508(a)(1)). We also emphasized that “[t]he

penalties imposed upon covered entities that wrongfully disclose or obtain private health

information in violation of HIPAA are . . . extremely severe, with such entities facing

punishment of up to $50,000 per offense and/or imprisonment of up to one year for non-

compliance.” Stevens, 418 S.W.3d at 555 n.6 (citing 42 U.S.C.A. § 1320d-6). We ruled

that, when determining whether a plaintiff “has substantially complied with [Section

121(a)(2)(E),] a reviewing court should consider the extent and significance of the

plaintiff’s errors and omissions and whether the defendant was prejudiced by the

plaintiff’s noncompliance.” Id. at 556.

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Applying that analysis, we noted that the plaintiff in Stevens had conceded that her

medical authorization provided “‘very little benefit’” to the defendants and failed to

comply with HIPAA. Id. This Court agreed and pointed out that the plaintiff’s medical

authorization failed to satisfy at least three of the six core elements mandated by federal

law for HIPAA compliance. Id. In particular, the medical authorization:

lacked a description of the medical information to be disclosed, 45 C.F.R. §

164.508(c)(1)(i); failed to state the individuals or organizations authorized

to disclose the . . . medical records, 45 C.F.R. § 164.508(c)(1)(ii); and

failed to specify the type of information authorized to be used or disclosed,

45 C.F.R. § 164.508(c)(1)(iv).

Id. We thus concluded that the medical authorization the Stevens plaintiff provided “was

woefully deficient,” had “numerous and significant” errors and omissions, and that,

because of these deficiencies, the “[d]efendants were not authorized to receive any of the

Plaintiff’s records.” Id. Nevertheless, we cautioned that “[a] plaintiff’s less-than-perfect

compliance with [Section 121(a)(2)(E)]” will not always “derail a healthcare liability

claim” because “[n]on-substantive errors and omissions will not always prejudice

defendants by preventing them from obtaining a plaintiff’s relevant medical records.”7

Id. at 555. But we concluded that, “[a]s a result of multiple errors,” the Stevens plaintiff

“failed to substantially comply with the requirements of [Section 121(a)(2)(E)].” Id. at

556.

Tennessee courts have now applied Stevens for more than six years, yet

“Tennessee law is less than settled concerning the question of substantial compliance[,]”

particularly with respect to Section 121(a)(2)(E). Rush v. Jackson Surgical Assocs. PA,

No. W2016-01289-COA-R3-CV, 2017 WL 564887, at *4-5 (Tenn. Ct. App. Feb. 13,

2017). For example, in some cases, prejudice has been treated as a separate independent

element of analysis, in addition to substantial compliance. See, e.g., Buckman v.

Mountain States Health Alliance, 570 S.W.3d 229, 238-39 (Tenn. Ct. App. 2018)

(concluding that the plaintiff failed to substantially comply with subsection (a)(2)(E) and

also concluding “that the defendants were prejudiced” by the plaintiff’s noncompliance),

perm. app. denied (Tenn. Nov. 15, 2018). In other cases, prejudice has been treated as a

consideration relevant to the determination of whether a plaintiff has substantially

complied with Section 121(a)(2)(E), and not as a separate and independent analytical

element. See, e.g., Lawson v. Knoxville Dermatology Grp., P.C., 544 S.W.3d 704, 713

(Tenn. Ct. App. 2017) (concluding that the plaintiff failed to substantially comply with

7

For an example of an imperfect but substantially compliant medical authorization form, consult

Hamilton v. Abercrombie Radiological Consultants, Inc., E2014-003433-COA-R3-CV, 2014 WL

7117802 (Tenn. Ct. App. Dec. 15, 2014), perm. app. denied (Tenn. May 15, 2015).

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Section 121(a)(2)(E) where errors in the authorization prejudiced defendants), perm. app.

denied (Tenn. Nov. 16, 2017); Hunt v. Nair, No. E2014-01261-COA-R9-CV, 2015 WL

5657083, at *10-12 (Tenn. Ct. App. Sept. 25, 2015) (concluding that plaintiffs

substantially complied with Section 121(a)(2)(E) where non-substantive errors in the

HIPAA authorizations did not prejudice the defendants), perm. app. denied (Tenn. Jan.

21, 2015).

We take this opportunity to clarify the role of prejudice in a court’s determination

of whether a plaintiff in a health care liability action has substantially complied with

Section 121. We reaffirm Stevens and hold that prejudice is not a separate and

independent analytical element; rather, as Stevens explained, prejudice is a consideration

relevant to determining whether a plaintiff has substantially complied. Stevens, 418

S.W.3d at 556 (stating that whether a plaintiff “has substantially complied with a

statutory [content] requirement, a reviewing court should consider the extent and

significance of the plaintiff’s errors and omissions and whether the defendant was

prejudiced by the plaintiff’s noncompliance”). Prejudice, or the absence of prejudice, is

especially relevant to evaluating the extent and significance of the plaintiff’s

noncompliance. If a plaintiff’s noncompliance with Section 121 frustrates or interferes

with the purposes of Section 121 or prevents the defendant from receiving a benefit

Section 121 confers, then the plaintiff likely has not substantially complied with Section

121. See id. at 563 (noting that the focus should be “on the extent of the shortcomings

and whether those shortcomings have frustrated the purpose of the statute or caused

prejudice to the adversary party”). On the other hand, if the plaintiff’s noncompliance

neither frustrates or interferes with the purposes of Section 121 nor prevents a defendant

from receiving a benefit the statute confers, then a court is more likely to determine that

the plaintiff has substantially complied.

We also take this opportunity to clarify the burdens each party bears when seeking

to establish, or to challenge, compliance with Section 121. We adopt and apply the

burden-shifting approach articulated in Myers v. AMISUB (SFH), Inc., 382 S.W.3d at

307. By statute, a health care liability plaintiff bears the initial burden of establishing

compliance with Section 121 by stating in the pleadings and providing “the

documentation specified in subdivision (a)(2),” or of alleging “extraordinary cause” for

any noncompliance. Tenn. Code Ann. § 29-26-121(b). A defendant wishing to challenge

a plaintiff’s compliance with Section 121(a)(2) must file a 12.02(6) motion to dismiss for

failure to state a claim.8 Myers, 382 S.W.3d at 307. The defense motion must describe

8

If proof outside the pleadings is submitted and considered by the trial court, the motion must be

treated as a motion for summary judgment. See Tenn. R. Civ. P. 12.02.

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“how the plaintiff has failed to comply with [Section 121] by referencing specific

omissions,” id., and by explaining “the extent and significance of the plaintiff’s errors

and omissions and whether the defendant was prejudiced by the plaintiff’s

noncompliance,” Stevens, 418 S.W.3d at 556. A defendant may demonstrate that the

noncompliance resulted in prejudice by explaining—for example—how the

noncompliance frustrated or interfered with the purposes of Section 121 or deprived the

defendant of a benefit Section 121 confers. One means of satisfying this burden is by

alleging that the plaintiff’s Section 121(a)(2)(E) medical authorization lacks one or more

of the six core elements required by federal law for HIPAA compliance. Under federal

law, a medical authorization is not HIPAA compliant if “[t]he authorization has not been

filled out completely, with respect to” a core element. 45 C.F.R. § 164.508(b)(2)(ii).

Without a HIPAA compliant medical authorization, a defendant would ordinarily be

deprived of a benefit Section 121 confers, as it declares that “[a]ll parties . . . shall be

entitled to obtain complete copies of the claimant’s medical records from any other

provider receiving notice.” Tenn. Code Ann. § 29-26-121(d)(1). Although defendants

must explain how they were prejudiced by noncompliance, defendants need not “test”

incomplete and facially noncompliant medical authorizations. As we recognized in

Stevens, obtaining medical records with a HIPAA noncompliant medical authorization

would violate federal regulations and could result in the imposition of severe penalties.

Stevens, 418 S.W.3d at 565 n.6; see also Woodruff ex rel. Cockrell v. Walker, 542

S.W.3d 486, 499 (Tenn. Ct. App. 2017) (“Because the penalties imposed on entities that

wrongfully disclose or obtain private health information in violation of HIPAA are

severe, the sufficiency of the plaintiffs’ medical authorizations is imperative.”), perm.

app. denied (Tenn. Oct. 6, 2017); J.A.C. ex rel. Carter v. Methodist Healthcare Memphis

Hosps., 542 S.W.3d 502, 514-15 (Tenn. Ct. App. 2016) (stating that a health care liability

defendant has no duty to assist a plaintiff to achieve compliance with Section 121 or to

test the validity of a medical authorization that is facially lacking a core element required

for HIPAA compliance); Dolman v. Donovan, No. W2015-00392-COA-R3-CV, 2015

WL 9315565, at *5 (Tenn. Ct. App. Dec. 23, 2015) (rejecting the plaintiffs’ argument

that the medical providers could not have been prejudiced because they never attempted

to obtain medical records with the deficient medical authorization provided), perm. app.

denied (Tenn. May 6, 2016). As we emphasized in Stevens, plaintiffs, not defendants,

are “responsible for complying with the requirements of [Section 121].” Stevens, 418

S.W.3d at 559.

Once a defendant files a motion that satisfies the foregoing prima facie showing,

the plaintiff then bears the burden of establishing substantial compliance with Section

121, which includes the burden of demonstrating that the noncompliance did not

prejudice the defense. Rye, 477 S.W.3d at 264-65; see also Moreno v. City of

Clarksville, 479 S.W.3d 795, 802 (Tenn. 2015) (citations omitted) (stating that once the

City established a prima facie statute of limitations defense, the plaintiff bore the burden

of establishing an exception to the defense); Benton v. Snyder, 825 S.W.2d 409, 414

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(Tenn. 1992) (citations omitted) (same). The plaintiff “may not rest upon the mere

allegations or denials of [its] pleading,” but must respond, and by affidavits or another

means provided in Tennessee Rule 56, “set forth specific facts” demonstrating that the

noncompliance did not prejudice the defense. Rye, 477 S.W.3d at 265. Defendants have

no obligation to aid plaintiffs in meeting this burden, and defendants need not notify

plaintiffs that a medical authorization lacks one or more of the six core elements federal

law requires for HIPAA compliance. See Stevens, 418 S.W.3d at 559 (rejecting the

argument that the defendant should have notified the plaintiff of the noncompliance with

Section 121 so that the plaintiff could have remedied the problem).9

Applying this analysis to the undisputed facts in the record on appeal, we conclude

that the Plaintiffs failed to substantially comply with Section 121(a)(2)(E). Like the

medical authorization in Stevens, the Plaintiffs’ medical authorizations lacked three of

the core elements required by federal law for HIPAA compliance. The Plaintiffs’

medical authorizations failed to include: (1)“[t]he name or other specific identification of

the person(s), or class of persons authorized to make the requested use or disclosure[s,]”

see 45 C.F.R. § 164.508(c)(1)(ii); (2) “[a]n expiration date or an expiration event that

relates to the individual or the purpose of the use or disclosure[,]” see 45 C.F.R. §

164.508(c)(1)(v); and (3) “[i]f 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[,]” see 45 C.F.R. § 164.508(c)(1)(vi). Given these omissions, the

trial court correctly found that the medical authorizations were “useless” to the

Defendants. 45 C.F.R § 164.508(b)(2)(ii) (stating that a medical authorization lacking a

core element is not valid).

The Plaintiffs failed to respond to the Defendants’ prima facie showing and

instead rested on the allegations and arguments in their pleadings, specifically, that the

Defendants were not prejudiced by the noncompliance because the Plaintiffs and the

Hospital Defendants had engaged in settlement negotiations several months before the

Plaintiffs filed the lawsuit and that the Hospital Defendants already had all of the

decedent’s relevant medical records. The Hospital Defendants have never conceded that

they were not prejudiced by the Plaintiffs’ failure to comply with Section 121(a)(2)(E), as

9

As one commentator cautioned not long after Section 121(a)(2) was adopted:

There is no penalty for giving more information than required by statute in the

notice letter. However, those who fail to give the information required by the statute are

at risk for an assertion that the notice is defective and does not operate to extend the

statute of limitations. Thus, counsel may wish to use a checklist to ensure that each letter

sent to a health care provider complies with the notice statute.

Day, supra, at 15 (emphasis added).

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the hospital did in the case on which the Plaintiffs rely to support their argument. See

Hughes, 2015 WL 3562733. To the contrary, the Hospital Defendants have consistently

argued that they were prejudiced because, without an authorization allowing them to

request records from Dr. Karl, they were unable to fully investigate the case during the

pre-suit notice period. In any event, settlement negotiations are not a substitute for a

HIPAA compliant medical authorization as required by Section 121(a)(2)(E). Cf. Foster,

467 S.W.3d at 916 (holding that plaintiffs must provide pre-suit notice each time a

complaint is filed and that the pre-suit notice filed before the first complaint was not

sufficient when the plaintiff filed a second complaint pursuant to the savings statute). As

to Dr. Karl, the Plaintiffs have asserted that he had access to all the decedent’s medical

records because he was either an employee or ostensible agent of Rolling Hills. Again,

Dr. Karl has not admitted these allegations, and he introduced correspondence showing

that he attempted to use the Plaintiffs’ noncompliant medical authorization without

success. The Plaintiffs simply have failed to point to specific facts in the record to satisfy

their burden of showing that the Defendants were not prejudiced by their noncompliance.

The record on appeal instead supports the Defendants’ arguments that the Plaintiffs’

noncompliance precluded them from receiving the benefits Section 121(a)(2)(E) and (d)

were intended to confer by preventing them from obtaining the decedent’s medical

records from all other providers named as defendants. See Parks v. Walker, 585 S.W.3d

895, 900 (Tenn. Ct. App. 2018) (holding that a medical authorization lacking core

elements required by federal law for HIPAA compliance was not substantially compliant

with Section 121(a)(2)(E)), perm. app. denied (Tenn. Mar. 27, 2019); Buckman, 570

S.W.3d at 239 (same); J.A.C., 542 S.W.3d at 513 (same).

The trial court here also noted that the Plaintiffs failed to make any showing of

extraordinary cause to excuse their noncompliance with Section 121(a)(2)(E). The trial

court addressed this issue, even though the Plaintiffs did not assert extraordinary cause at

all in their responses to the Defendants’ motions to dismiss. Rather, the Plaintiffs resisted

the Defendants’ motions by asserting that they had substantially complied with Section

121. The Plaintiffs have raised extraordinary cause in passing in their briefs in the Court

of Appeals and in this Court; but, as a general rule, “issues raised for the first time on

appeal are waived.” State v. Rowland, 520 S.W.3d 542, 545 (Tenn. 2017) (citing Fayne

v. Vincent, 301 S.W.3d 162, 171 (Tenn. 2009)). This general rule of waiver applies here

to the Plaintiffs’ assertion that extraordinary cause excused their noncompliance.

Accordingly, we conclude that the pre-suit notice the Plaintiffs provided before

filing their first lawsuit failed to substantially comply with Section 121(a)(2)(E).

Therefore, the Plaintiffs were not entitled to the 120-day extension of the statute of

limitations and their first lawsuit was untimely filed. Because their first lawsuit was not

timely filed, the Plaintiffs were not entitled to rely on the savings statute to establish the

timeliness of this second lawsuit. Accordingly, the trial court correctly held that the

Plaintiffs’ lawsuit is time-barred.

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IV. Waived Issue and Separate Opinion

In their brief to this Court, the Plaintiffs also assert that, even if they failed to

substantially comply with Section 121(a)(2), they were still entitled to the 120-day

extension of the statute of limitations provided in Section 121(c) because that extension is

contingent upon a plaintiff’s compliance with Section 121(a)(2)(B) not upon a plaintiff’s

compliance with Section 121(a)(2). The Plaintiffs recognize that this argument is

inconsistent with several prior appellate court decisions, citing Stevens, 418 S.W.3d at

560; J.A.C., 542 S.W.3d at 512; Dolman, 2015 WL 9315565, at *3; and Roberts v. Prill,

E2013-02202-COA-R3-CV, 2014 WL 2921930, at *1 (Tenn. Ct. App. June 26, 2014),

but the Plaintiffs assert that these decisions failed to analyze properly the language of

Section 121(c). The Plaintiffs failed to raise this issue in either the trial court or the Court

of Appeals. “Issues not raised in the trial court or in the intermediate appellate courts

may be deemed waived when presented to this Court.” Hodge v. Craig, 382 S.W.3d 325,

334 n.3 (Tenn. 2012) (citing Brown v. Roland, 357 S.W.3d 614, 620 (Tenn. 2012); In re

Adoption of E.N.R., 42 S.W.3d 26, 32 (Tenn. 2001); Alexander v. Armentrout, 24

S.W.3d 267, 273 (Tenn. 2000)); see also Harmon v. Hickman Cmty. Healthcare Servs.,

Inc., 594 S.W.3d 297, 300-301 (Tenn. 2020) (deeming waived several issues raised for

the first time in this Court). We conclude that the Plaintiffs have waived this issue.

Inexplicably, Justice Kirby refuses to deem the Plaintiffs’ new issue waived in her

separate concurring in part and dissenting in part opinion and instead declares that the

Defendants waived the defense of waiver. In Justice Kirby’s circular analysis, the

Defendants are at fault for not asserting waiver when the Plaintiffs raised an issue for the

first time in their brief to this Court. Of course, the Plaintiffs have not argued that the

Defendants waived the waiver defense (which presumably would mean, under Justice

Kirby’s analysis, that the Plaintiffs waived the argument that the Defendants waived the

waiver defense). Nevertheless, Justice Kirby makes that declaration—that the

Defendants waived the waiver defense—and then proceeds to address the merits of the

issue the Plaintiffs have plainly waived. Conspicuous by its absence is any citation to

authority supporting Justice Kirby’s declaration that the Defendants waived the waiver

defense. More importantly, Justice Kirby acknowledges that this Court’s authority and

discretion to deem an issue waived exists independent of a litigant’s assertion of the

defense. We exercise that authority without hesitation here, where the record on appeal is

a textbook example of waiver. This record leaves no doubt that the Plaintiffs failed to

preserve and raise in the courts below the issue Justice Kirby addresses on the merits and

shows that the Plaintiffs first raised it in this Court. Moreover, only three months ago

Justice Kirby authored an opinion that applied waiver in almost identical circumstances.

See Harmon, 594 S.W.3d at 300-301 (“In Plaintiffs’ brief to this Court, they seek to raise

several additional issues. Most of these arguments were not made to either the trial court

or the Court of Appeals. We deem these issues waived. ‘Issues not raised in the trial

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court or in the intermediate appellate courts may be deemed waived when presented to

this Court.’” (quoting Hodge, 382 S.W.3d at 334)).

In any event, notwithstanding the fundamental principle of waiver, Justice Kirby

addresses the issue on the merits, faults the Court of Appeals (and presumably this Court

as well as it denied applications seeking review of many of the intermediate appellate

court decisions she now deems erroneous), and asserts that the Court of Appeals has

frustrated the General Assembly’s intent by construing Section 121 as requiring plaintiffs

to comply strictly with Section 121(a)(1) and substantially comply with Section 121(a)(2)

to obtain a 120-day extension of the statute of limitations. Because the issue is waived,

we need not expressly rebut each of Justice Kirby’s assertions. We are, however,

constrained to make three observations.

First, Justice Kirby’s statutory analysis renders Section 121(a)(2) meaningless and

is inconsistent with the understanding of the statute’s meaning by persons who were

familiar with the 2009 amendments. See, e.g., Day, supra, at 15 (“There is no penalty for

giving more information than required by statute in the notice letter. However, those who

fail to give the information required by the statute are at risk for an assertion that the

notice is defective and does not operate to extend the statute of limitations.”).

Second, Justice Kirby mischaracterizes in footnote 7 this Court’s decision in

Stevens. This Court in Stevens dismissed the lawsuit without prejudice and did not

decide whether the dismissal without prejudice would, as a practical matter, mean the

plaintiff’s claim was time-barred because “the trial court did not reach this issue.”

Stevens, 418 S.W.3d at 560.

Third, and finally, Justice Kirby’s assertion that courts have misconstrued Section

121 and frustrated the General Assembly’s intent is refuted by the fact that in the eleven

years since its enactment the General Assembly has not amended the statute to abrogate

these allegedly erroneous judicial decisions. Coffee Cnty. Bd. of Ed. v. City of

Tullahoma, 574 S.W.3d 832, 847 (Tenn. 2019) (“[L]egislative inaction following a

contemporaneous and practical interpretation of a statute is considered persuasive

evidence of the Legislature’s intent to adopt that interpretation.” (Citations omitted));

Freeman Indus. v. Eastman Chem. Co., 172 S.W.3d 512, 519 (Tenn. 2005) (“[T]he

legislature’s failure to express disapproval of a judicial construction of a statute is

persuasive evidence of legislative adoption of the judicial construction.” (Internal

quotation marks and citations omitted)).

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V. Conclusion

For the reasons stated herein, we reverse the judgment of the Court of Appeals and

reinstate the judgment of the trial court dismissing this lawsuit as time-barred. Costs on

appeal are taxed to the Plaintiffs for which execution may issue if necessary.

_________________________________

CORNELIA A. CLARK, JUSTICE

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