The opinion
05/19/2021
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
April 20, 2021 Session
SAVANNAH LEIGH JACKSON, ET AL. v.
THE STATE OF TENNESSEE, ET AL.
Appeal from the Tennessee Claims Commission
No. T20192145 William A. Young, Commissioner
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No. E2020-01232-COA-R9-CV
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Parents filed a healthcare liability and wrongful death complaint after the mother delivered
a stillborn infant. We granted this interlocutory appeal to review whether the claims
commission erred in denying summary judgment to the defendants. Finding no error in the
Commission’s ruling, we affirm.
Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Tennessee Claims
Commission Affirmed; Case Remanded
JOHN W. MCCLARTY, J., delivered the opinion of the court, in which THOMAS R.
FRIERSON, II, and KRISTI M. DAVIS, JJ., joined.
Joshua R. Walker, Knoxville, Tennessee, for the appellants, State of Tennessee and The
University of Tennessee College of Medicine-Chattanooga.
J. Allen Hammontree, Dalton, Georgia, for the appellees, Savannah Leigh Jackson and
Mark Anthony Jackson.
OPINION
I. BACKGROUND
Branson Vance Jackson (“Decedent”) was delivered stillborn on December 6, 2017,
at Erlanger Medical Center. On November 29, 2018, Mark and Savannah Jackson
(“Parents”), provided pre-suit notice of an impending healthcare liability claim, as Parents
alleged that Decedent’s death “was the direct and proximate result of the negligence and
medical malpractice of resident physicians and physicians employed by the University of
Tennessee College of Medicine at Chattanooga.” No allegation or claim was presented for
damages for harm or injury to Savannah Jackson (“Mother”) or any other person. The State
of Tennessee/the University of Tennessee College of Medicine (“State”), the Chattanooga
Hamilton County Hospital Authority (“Erlanger Health System” or “Erlanger”), and
Regional Obstetrical Consultants, P.C. (“Regional Obstetrical”), among others, received
the pre-suit notice. As part of the pre-suit notice, Parents provided a medical authorization
that states in pertinent part as follows:
I, the individual identified below, hereby authorize the use or disclosure of
my individually identifiable health information as described below. I
understand if the organization or entity authorized to receive the information
is not a health plan or health care provider, the released information may no
longer be protected by federal privacy regulations.
PATIENT NAME: BRANSON VANCE JACKSON DOB: 12/6/2017
Deceased infant delivered stillborn on 12/6/2017
This medical authorization was signed by Mother, as “Mother of deceased infant, Branson
Vance Jackson.” The authorization correctly identified State as the party authorized to
receive the health information. The notices, list of providers, and medical authorizations
were sent within the statute of limitations and mailed in conformity with Tennessee Code
Annotated section 29-26-121. The complaint was filed more than 60 days after the notices
were sent and within 120 days of the expiration of the statute of limitations.
On May 1, 2019, State submitted a records request to Erlanger Health System that
sought the medical records of Decedent and relied on the medical authorization provided
as part of Parents’ pre-suit notice. In response to this request, Erlanger provided the
affidavit of Jim Brown, custodian of medical records, certifying “that a thorough search of
[Erlanger’s] files, carried out under [Mr. Brown’s] direction and control, revealed no
records for BRANSON JACKSON [b]ecause … [Erlanger has] no record of a person by
this name and DOB, or SSN.” On May 29, 2019, State, relying on the medical authorization
provided as part of Parents’ pre-suit notice, submitted a records request to Regional
Obstetrical that sought Decedent’s medical records. In response, Regional Obstetrical
provided the affidavit of Jennifer Sherrell, records custodian, certifying that Regional
Obstetrical has “no record of having seen a patient by this name and date of birth.”
Accordingly, State was unable to acquire any records from two other medical providers
that also received Parents’ pre-suit notice.
After this claim transferred from the Division of Claims and Risk Management to
the Claims Commission for litigation, State filed a motion for summary judgment seeking
dismissal of the claim for Parents’ failure to comply with both Tennessee Code Annotated
section 29-26-121(a)(2)(E) and the statute of limitations. Commissioner Young denied the
motion for summary judgment by order entered February 10, 2020, ruling as follows:
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[T]he undersigned cannot conclude that [Parents’] authorization is defective
or that it fails to comply, or at least substantially comply, with the
requirements of Tenn. Code Ann. § 29-26-121(a)(2)(E). Indeed, in
attempting to identify “the extent and significance of [Parents’] errors and
omissions” in the authorization considered herein, the Commission does not
conclude that there were errors or omissions that defeat substantial
compliance. It does appear to the Commission that the authorization contains
the necessary relevant information and even Defendant’s counsel referred to
the document as being a properly executed HIPA[A] authorization “in
compliance with Tenn. Code Ann. § 29-26-121.”
According to the Commissioner, “[t]he fact that the records custodian did not turn up
records showing ‘Branson Jackson’ does not necessarily conclude that the release was
substantially defective, especially where there is no indication in the hospital’s ‘response’
that the search encompassed the mother Savannah Jackson.”
State argued that the Commission erred in making this ruling because the medical
authorization provided by Parents allowed only the release of Decedent’s records—not
those of Mother, in whose name the relevant records may be found. According to State, it
was deprived of the opportunity to evaluate the medical records and merits of Parents’
claims. Following entry of the February 10, 2020 order, State filed, on March 10, 2020, a
motion to revise the Commission’s February 10, 2020 order or, in the alternative, motion
for interlocutory appeal. State argued that Commissioner Young abused his discretion
when he ruled that the medical providers “could have searched or produced [Mother]’s
medical records when presented with a medical authorization expressly limited to the
release of [Decedent’s] medical records.” The Commission denied the motion to revise and
granted the motion for interlocutory appeal by order entered August 31, 2020. We granted
the application for interlocutory appeal by order entered October 6, 2020.
II. ISSUES
Pursuant to Rule 27(a)(4) of the Tennessee Rules of Appellate Procedure and this
court’s October 6, 2020 order, the following issue is before us for review:
Whether the Claims Commission erred in denying State’s motion for
summary judgment, which alleged that the medical records release provided
by Parents failed to satisfy the requirements of Tennessee Code Annotated
section 29-26-121(a)(2)(E), rendering State unable to obtain medical records.
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III. STANDARD OF REVIEW
A trial court’s decision regarding a motion for summary judgment presents a
question of law. Therefore, our review is de novo with no presumption of correctness
afforded to the trial court’s determination. Bain v. Wells, 936 S.W.2d 618, 622 (Tenn.
1997). This court must make a fresh determination that all requirements of Rule 56 of the
Tennessee Rules of Civil Procedure have been satisfied. Abshure v. Methodist Healthcare-
Memphis Hosps., 325 S.W.3d 98, 103 (Tenn. 2010). When a motion for summary judgment
is made, the moving party has the burden of showing that “there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of law.” Tenn. R.
Civ. P. 56.04. “[W]hen the moving party does not bear the burden of proof at trial, the
moving party may satisfy its burden of production either (1) by affirmatively negating an
essential element of the nonmoving party’s claim or (2) by demonstrating that the
nonmoving party’s evidence at the summary judgment stage is insufficient to establish the
nonmoving party’s claim or defense.” Rye v. Women’s Care Ctr. of Memphis, MPLLC, 477
S.W.3d 235, 264 (Tenn. 2015).
IV. DISCUSSION
Pertinent portions of the complaint provide as follows:
[Mother] was at approximately 29 weeks gestation and presented to the
emergency department of Erlanger Medical Center on December 3, 2017.
[Mother] had a known history of diabetes and of a prior hospitalization for
diabetic ketoacidosis. She also had undergone a prior emergency cesarean
section for the delivery of her first child.
[Mother] was seen by resident physicians in the emergency department . . . .
[Mother] had elevated heart rate, respiration and glucose. She was found to
be distressed. The decision was made to admit her to the Intensive Care Unit
rather than Labor and Delivery.
***
[Mother]’s condition stabilized. However, the condition of her child,
BRANSON VANCE JACKSON, eroded.
Due to the condition of [Mother]’s diabetic ketoacidosis, as well as the lack
of proper intervention, decedent died and was delivered stillborn by cesarean
section on December 6, 2017.
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State submits that the Commission’s denial of the summary judgment motion should
be reversed because the medical authorization expressly applies only to Decedent’s records
and not to Mother’s records. State claims that Mother is the relevant patient, as the
complaint alleges multiple facts regarding her history of diabetes, prior hospitalization for
diabetic ketoacidosis, prior emergency caesarian section, her elevated heart rate,
respiration, and glucose, along with her admission to the intensive care unit instead of labor
and delivery. Those records are filed under her name. Decedent has no records under his
name because he was not born alive. According to State, Parents did not substantially
comply with the requirements of Tennessee Code Annotated section 29-26-121(a)(2)(E)
because State could not acquire any records from Regional Obstetrical or Erlanger of
alleged negligence. Further, because they did not substantially comply with Tennessee
Code Annotated section 29-26-121(a)(2)(E), State asserts that Parents were not entitled to
the 120-day extension of the statute of limitation allowed by Tennessee Code Annotated
section 29-26-121(c), making this claim untimely.
State contends that federal regulations under the Health Insurance Portability and
Accountability Act of 1996 (“HIPAA”) do not allow the medical authorization solely for
the release of Decedent’s medical records to authorize the release of Mother’s medical
records. See Pub. L. No. 104-191, 110 Stat. 1936 (1996). State notes that all of the alleged
negligence occurred before Decedent’s birth, while Mother was the only possible patient.
Thus, according to State, because Mother expressly indicated that she was signing in a
representative capacity for Decedent, the authorization cannot allow disclosure of Mother’s
records. State contends that neither Regional Obstetrical nor Erlanger could alter the
authorization provided, so under federal law, no records for Mother could be produced.
State observes that “substantial compliance, as it is used in the context of pre-suit
notice, does not refer solely to the number of satisfied [HIPAA] elements, but rather to a
degree of compliance that provides the defendant with the ability to access and use the
medical records for the purpose of mounting a defense.” Lawson v. Knoxville Dermatology
Grp., P.C., 544 S.W.3d 704, 711 (Tenn. Ct. App. 2017). State asserts that “in order to
substantially comply with [Tennessee Code Annotated section 20-26-121(a)(2)(E)], a
plaintiff must provide a defendant with a . . . medical authorization form that is sufficient
to allow the defendant to obtain . . . medical records from the other providers being sent
the notice.” Buckman v. Mountain States Alliance, 570 S.W.3d at 229, 238 (Tenn. Ct. App.
2018).
State notes that “[b]ecause the penalties imposed upon entities that wrongfully
disclose or obtain private health information in violation of HIPAA are severe, the
sufficiency of the plaintiffs’ medical authorizations is imperative.” Id. at 239. Admittedly,
the penalties for wrongfully disclosing or obtaining 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.” Id.
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Tennessee Code Annotated section 29-26-121(a)(2) defines the information 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;
(B) The name and address of the claimant authorizing the notice and the
relationship to 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). Disclosure of individually identifiable health
information that requires an authorization is governed by 45 C.F.R. § 164.508. This
particular regulation has two subsections. First,
[e]xcept as otherwise permitted or required by this subchapter, a covered
entity may not use or disclose protected health information without an
authorization that is valid under this section. When a covered entity obtains
or receives a valid authorization for its use or disclosure of protected health
information, such use or disclosure must be consistent with such
authorization.
45 C.F.R. § 164.508(a)(1). Another subsection sets forth the core elements of a valid
authorization:
(c) Implementation specifications: Core elements and requirements—
(1) Core elements. A valid authorization under this section must contain at
least the following elements:
(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.
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(iv) A description of each purpose of the requested use or disclosure. The
statement “at the request of the individual” is a sufficient description of the
purpose when an individual initiates the authorization and does not, or elects
not to, provide a statement of the purpose.
(v) An expiration date or an expiration event that relates to the individual or
the purpose of the use or disclosure. The statement “end of the research
study,” “none,” or similar language is sufficient if the authorization is for a
use or disclosure of protected health information for research, including for
the creation and maintenance of a research database or research repository.
(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.
45 C.F.R. § 164.508(c)(1).
State asserts that applying these requirements to the medical authorization at issue
demonstrates the error of the Commission’s finding that both Decedent’s and Mother’s
medical records could have been disclosed. First, the description of the information to be
disclosed that identifies the information in a specific and meaningful fashion, 45 C.F.R. §
164.508(c)(1)(i), is the individually identifiable health information of only Decedent.
Second, the signature of the personal representative and description of the representative’s
authority to act for the individual, 45 C.F.R. § 164.508(c)(1)(vi), clearly indicates that
Mother signed the authorization, not in her individual capacity, but instead as Decedent’s
mother. State contends that the medical authorization extends to only medical records in
Decedent’s name and release of Mother’s records is not authorized.
State argues that the Tennessee Supreme Court’s recent decision in Martin v.
Rolling Hills Hosp., LLC, 600 S.W.3d 322 (Tenn. 2020) further supports its position that
the medical authorization provided by Parents did not allow it to acquire any records,
thereby preventing it from receiving the benefit Section 121(a)(2)(E) was intended to
confer. State asserts that this failure results in prejudice to it and a failure by Parents to
substantially to comply with the requirements of Section 29-26-121(a)(2)(E).
Parents argue that State errs in claiming that Parents’ medical records release does
not substantially comply with Tennessee Code Annotated section 29-26-121(a)(2)(E).
They noted that Section 29-26-121(a)(2)(A) requires that the full name and date of birth of
the patient whose treatment is at issue be provided. The statute then differentiates
“claimant” from “patient” in providing that the claimant may sign if the patient lacks
capacity. Parents assert that under Tennessee law governing wrongful death claims, a
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viable fetus is deemed to be a person. Tenn. Code Ann. § 20-5-106(d).1 According to
Parents, therefore, Decedent was a separate and distinct person and patient from Mother.
The only patient and person for whom damages are sought is Decedent. Thus, Parents argue
that the notices and authorizations correctly list Decedent as the patient in both the notice
and the medical authorization.
Stevens v. Hickman Community Health Care Servs., Inc., 418 S.W. 3d 547 (Tenn.
2013), holds that “[i]n determining whether a plaintiff has substantially complied with a
statutory 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.” Id. at 556. Stevens notes as follows:
[T]he requirements of Tenn. Code Ann. § 29-26-121(a)(2)(D) and Tenn.
Code Ann. § 29-26-121(a)(2)(E) 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. Tenn. Code Ann. § 29-26-
121(a)(2)(E) serves to equip defendants with the actual means to evaluate the
substantive merits of a plaintiff’s claim by enabling early access to a
plaintiff’s medical records. Because HIPAA itself prohibits medical
providers from using or disclosing a plaintiff’s medical records without a
fully compliant authorization form, it is a threshold requirement of the statute
that the plaintiff’s medical authorization must be sufficient to enable
defendants to obtain and review a plaintiff’s relevant medical records.
Id. at 554-55. The Stevens court further instructs us that “[n]ot every non-compliant HIPAA
medical authorization will result in prejudice.” Id. at 556.
As noted by Parents, in the matter at hand, there are no allegations that the
authorization permits release to an incorrect party, that the information is in error, that the
wording of the authorization does not comport with HIPAA, or that there is no capacity on
the part of the signer. Parents observe that a letter from State’s counsel to Erlanger
provides: “Enclosed you will find a copy of a properly executed HIPAA ‘Authorization to
Release Protected Health Care Information’ in Compliance with T.C.A. §29-26-121.”
Parents contend that the problem in this case is that the records custodians for Erlanger
Medical Center and Regional Obstetrical did not archive records based upon Decedent’s
name.
We agree with the Commission’s ruling on State’s dispositive motion. It is
1
“A fetus shall be considered viable if it had achieved a stage of development wherein it
could reasonably be expected to be capable of living outside the uterus.” Tenn. Code Ann. § 20-
5-106(d).
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unreasonable to place upon Parents the burden of predicting how a medical provider will
identify and archive its records and to anticipate how a records custodian will respond to
an otherwise properly executed medical authorization. Because it is impossible to sever an
infant’s prenatal history from a mother’s history, the prenatal care records bearing Mother’s
name during the period Decedent was in utero were, for all purposes, the medical records
of Decedent. See e.g. El-Amin v. Dempsey, 329 Ill. App. 3d 800, 768 N.E.2d 344 (1st Dist.
2002); See R. Brown, Balancing Privacy and Proof: Discovery of NonParty Medical
Records, 21 J. Health Care Law & Policy 189 (2018). Accordingly, we find that the Claims
Commission did not err denying the State’s motion for summary judgment because the
medical records release provided by Parents substantially complied with the requirements
of Tennessee Code Annotated section 29-26-121(a)(2)(E). Parents were entitled to the 120-
day extension and the complaint was timely filed.
V. CONCLUSION
We affirm the order of the Claims Commission and remand this cause. Costs of this
appeal are taxed against the State, for which execution may issue if necessary.
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JOHN W. MCCLARTY, JUDGE
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