As I approach the quarter century mark of my practice as a tort, healthcare and commercial litigator, predominately on the defense side, I reflect on some of the land mines that face the defense bar. These land mines include missing an affirmative defense, failing to join a necessary party, failing to enlist the services of all the expert witnesses needed to combat the plaintiff’s claims, and the list goes on. Even so, I would argue that none of these potential pitfalls can hold a candle to the specter of statutes of limitations and pre-suit requirements facing the plaintiff’s bar. In Tennessee, as in many states, those hurdles are magnified by pre-suit notices and other filings required of the plaintiff in making a healthcare liability claim. In November, the Supreme Court of Tennessee highlighted the importance of “crossing all your t’s and dotting all your i’s” when making such a claim in the case of Stevens v. Hickman Community Healthcare Services, Inc., No. M2012-00582-SC-S09-CV (Tenn. filed Nov. 25, 2013). Importantly, the Stevens court also made instructive rulings as to HIPAA preemption and a defendant’s right to receive records in healthcare liability actions.
Without getting too deep into the procedural and factual aspects of the Stevens decision, the plaintiff’s decedent presented to Hickman Community Hospital complaining of several problems, including fever and increased respiratory effort. Stevens at 2. He received a diagnosis, was prescribed medication and was then sent home. Id. Two days later, he returned to the emergency room for further testing and was ultimately discharged after receiving a normal CT scan. Id. A couple of days later, while many of the same symptoms continued, Mr. Stevens fell into septic shock and had a multi-system organ failure. Id. After a couple of months in the hospital, Mr. Stevens died. Id.
The family of Mr. Stevens decided to pursue a healthcare liability claim arising out of the care and treatment of Mr. Stevens. Id. Under Tennessee law, pre-suit letters must be sent to the healthcare providers notifying them of a potential healthcare liability claim. Tenn. Code Ann. § 29-26-121(a) (2013). Unfortunately, the plaintiff’s notice letters only included a medical authorization that permitted release of the decedent’s records to plaintiff’s counsel, rather than an authorization allowing each medical provider receiving the notice to obtain Mr. Stevens’ records from each other. Stevens at 2. The medical authorization also lacked “Mr. Stevens’ name, date of birth, the individuals or organizations authorized to disclose medical records, and the type of information to be used or disclosed.” Id.
Once suit was filed, the defendants contended that the plaintiff had failed to comply with the pre-suit notice requirements of Tenn. Code Ann. § 29-26-121(a). Id. at 3. Specifically, the trial court denied the defendants’ motions to dismiss ruling that the requirements of Subsection (2)(E) were neither preempted by HIPAA nor in conflict with Tennessee law.Id. Although a significant portion of the Stevens decision involves the procedural aspects of the pre-suit notice and whether plaintiff’s failure to comply with the statutory requirements therefor was excused by extraordinary cause, the remainder of this blog post will focus solely on the Court’s rulings on HIPAA preemption and the healthcare defendants’ rights to receive records. If you are a Tennessee healthcare liability attorney, I would recommend that you review the other aspects of this decision as they are very instructive and helpful, particularly to plaintiff’s counsel in these matters.
The plaintiff argued, among other things, that the failure to comply with the pre-suit authorization requirements of Tenn. Code Ann. § 29-26-121(a)(2)(E) should be excused for extraordinary cause because Subsection (2)(E) is expressly preempted by, and frustrates the goals of, HIPAA. Id. at 9. The Court disagreed. The Court noted that HIPAA preempts contrary state laws that are not “more stringent in their privacy protections.” Id. Further, a state’s law is only “contrary” if it: (1) creates a situation where a party could not comply with both the State and the Federal law, or (2) prevents the purposes and objectives of the Federal law from being accomplished. Id.
Here, the Court found that Subsection (2)(E) does not fall into either category for two reasons. First, Subsection (2)(E) permits the disclosure of a plaintiff’s medical records expressly mentioned in HIPAA. Id. (citing to 45 C.F.R. § 164.508). Second, “a plaintiff’s decision whether to file suit is still a voluntary one.” Stevens at 9. To that end, Subsection (2)(E) is not contrary to HIPAA because it allows for compliance of both the State and the Federal law, and it does not hinder the objectives of HIPAA. Therefore, Subsection (2)(E) is not preempted. Now that the Court held that HIPAA does not preempt Subsection (2)(E), this begs the question of what are the healthcare defendant’s rights to the plaintiff’s medical records under Subsection (2)(E)? The Court went on to address that issue.
The Court confirmed that Tenn. Code Ann. § 29-26-121(a)(2)(E) provides more than just a right to receive notice of a forthcoming healthcare liability claim—Subection (2)(E) gives healthcare defendants’ the right to receive a plaintiff’s medical records. Id. at 6. This right originates from the purpose of Subsection (2)(E) 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.” Id. A defendant’s right to receive records even withstands the implied covenant of confidentiality between a doctor and patient because a plaintiff’s lawsuit serves as the plaintiff’s implied consent to the discovery of medical records covered under Subsection (2)(E). Id. at 10.
Next, the Court set the limits of the defendant’s right to receive a plaintiff’s medical records. A healthcare defendant is entitled under Tenn. Code Ann. § 29-26-121(d)(1) to the medical records governed by Subsection (2)(E). Id. at 6. Subsection (d)(1) expressly entitles a healthcare defendant to obtain “complete copies of the claimant’s medical records . . . .” Tenn. Code Ann. § 29-26-121(d)(1) (2013) (emphasis added). Despite that express language, the Court did not agree that a defendant has access to a plaintiff’s “entire medical history.” Stevens at 10. Rather, defendants have access to records “relevant to the particular claim at issue.” Id. The Court stated that defendants should determine the relevance of a plaintiff’s medical records by using the “minimum necessary” standard under 45 C.F.R. § 164.502(b)(1). Therefore, a healthcare defendant in Tennessee has the right to receive a plaintiff’s medical records that are “the minimum necessary to accomplish the intended purpose of the use, disclosure, or request.” 45 C.F.R. § 164.502(b)(1) (2013).
Andrew M. Hodgson