Martin v. Rolling Hills Hosp., LLC

Full title: Melissa MARTIN, et al. v. ROLLING HILLS HOSPITAL, LLC, et al.

Court: Supreme Court of Tennessee, AT NASHVILLE.

Date published: Apr 29, 2020

600 S.W.3d 322 (Tenn. 2020)

Opinion

No. M2016-02214-SC-R11-CV

04-29-2020

Melissa MARTIN, et al. v. ROLLING HILLS HOSPITAL, LLC, et al.

Cornelia A. Clark, J.

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.

I. Factual and Procedural Background¹

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.

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 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 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.

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 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.

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.

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."

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.

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 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.

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.

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 *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 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;

(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 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.

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."⁷Id. 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.

7 For an example of an imperfect but substantially compliant medical authorization form, consult Hamilton v. Abercrombie Radiological Consultants, Inc., 487 S.W.3d 114 (Tenn. Ct. App. 2014), perm. app. denied (Tenn. May 15, 2015).

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 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.⁸Myers, 382 S.W.3d at 307. The defense motion must describe "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.

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.

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 (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

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).

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 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.

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 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)).

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.

Holly Kirby, J., filed an opinion concurring in part and dissenting in part.

Holly Kirby, J., concurring in part and dissenting in part.

I agree with the majority's clarification of the role of prejudice in the substantial compliance analysis required when a defendant challenges the plaintiff's adherence to subsection (a)(2) of Tennessee Code Annotated section 29-26-121 (Supp. 2019) ("Section 121").

I write separately to address an issue that the majority deems waived, namely, the circumstances under which plaintiffs are entitled to the 120-day extension of time for filing the lawsuit provided in Section 121. The party invoking the principle of waiver has "the burden of demonstrating that the issue sought to be precluded was, in fact, not raised" below. Powell v. Cmty. Health Sys., Inc. , 312 S.W.3d 496, 511 (Tenn. 2010) (citing Fayne v. Vincent , 301 S.W.3d 162, 171 (Tenn. 2009) ). In this case, after the Plaintiffs raised the issue in their brief to this Court, the Defendants failed to even assert the principle of waiver; in fact, they elected to ignore the issue altogether. Under those circumstances, the Defendants have waived the defense of waiver on this issue. Of course, this Court may exercise its discretion to nevertheless deem the issue waived, which the majority does. In this instance, I would not. SeeNorton v. Everhart , 895 S.W.2d 317, 322 (Tenn. 1995) (noting "the clear policy of this state favoring the adjudication of disputes on their merits"). Instead, I address the issue on its merits.

Our Court of Appeals has held on numerous occasions that plaintiffs must comply with the entirety of section 29-26-121, including the content requirements in subsection (a)(2), in order to rely on the 120-day extension of time for filing the lawsuit provided in subsection (c) of Section 121. This Court, however, has not opined on whether compliance with the content requirements is necessary for reliance on the 120-day extension. Interpreting Section 121, I would hold that the 120-day extension of time to file suit is not contingent on plaintiffs’ substantial compliance with the so-called "content requirements" in subsection (a)(2) of Section 121. Rather, the availability of the 120-day extension in subsection (c) hinges on compliance with the provisions referenced in subsection (c); i.e., plaintiffs may rely on the 120-day extension so long as they serve the mandatory notice to providers in accordance with the provisions on personal service or service by mail.

For that reason, I respectfully dissent from the majority's conclusion that the Plaintiffs’ re-filed lawsuit is untimely.

A. Notice Requirements in Section 121(a)

Subsection (a)(1) of Section 121 contains an express pre-suit notice requirement that requires plaintiffs asserting a health care liability claim to "give written notice of the potential claim" to defendant health care providers at least sixty days before filing the complaint. Tenn. Code Ann. § 29-26-121(a)(1). We have referred to the other five requirements, listed in (a)(2), as "content requirements" for the pre-suit notice.¹See, e.g.,Thurmond v. Mid-Cumberland Infectious Disease Consultants, PLC , 433 S.W.3d 512, 520 (Tenn. 2014).

1 Subsection (a)(2) states that the pre-suit 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, 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 and address 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)

The pre-suit notice requirement in subsection (a)(1) is mandatory; plaintiffs must strictly comply with this provision. Myers v. AMISUB (SFH), Inc. , 382 S.W.3d 300, 310 (Tenn. 2012) (holding that the notice requirement in subsection (a)(1) is "not subject to satisfaction by substantial compliance"); seeRunions v. Jackson-Madison Cnty. Gen. Hosp. District , 549 S.W.3d 77, 87 (Tenn. 2018) (reaffirming that the language in subsection (a)(1) is "clear, unambiguous, and requires strict compliance"). Failure to strictly comply with this subsection results in dismissal without prejudice. Foster v. Chiles , 467 S.W.3d 911, 916 (Tenn. 2015).

In contrast, the content requirements in subsection (a)(2) of section 29-26-121 are merely directory. Healthcare liability plaintiffs can satisfy the content requirements by substantial compliance with the statute's terms. SeeArden v. Kozawa , 466 S.W.3d 758, 763 (Tenn. 2015) ; Stevens ex rel. Stevens v. Hickman Cmty. Health Care Servs., Inc. , 418 S.W.3d 547, 555-56 (Tenn. 2013). A plaintiff's failure to substantially comply with content requirements such as providing a HIPAA-compliant medical authorization also results in dismissal without prejudice to the plaintiff's ability to re-file the action. Stevens , 418 S.W.3d at 560.²

2 See alsoEllithorpe v. Weismark , 479 S.W.3d 818, 829 (Tenn. 2015) ("If the only failing was lack of pre-suit notice then dismissal without prejudice would be the proper remedy."); Foster , 467 S.W.3d at 916 ("[W]e hold that dismissal without prejudice is the proper sanction for noncompliance with Tenn. Code Ann. § 29-26-121(a)(1).").

B. 120-Day Extension of Time to File in Section 121(c)

Subsection (c) of Section 121 gives healthcare liability plaintiffs an extra 120 days, beyond the one-year statute of limitations, in which to file suit:

(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 from the date of expiration of the statute of limitations and statute of repose applicable to that provider. Personal service is effective on the date of that service. Service by mail is effective on the first day that service by mail is made in compliance with subdivision (a)[ (3) ](B).³ In no event shall this section operate to shorten or otherwise extend the statutes of limitations or repose applicable to any action asserting a claim for health care liability, nor shall more than one (1) extension be applicable to any provider. Once a complaint is filed alleging a claim for health care liability, the notice provisions of this section shall not apply to any person or entity that is made a party to the action thereafter by amendment to the pleadings as a result of a defendant's alleging comparative fault.

3 Subsection (c) of Section 121 states that "[s]ervice by mail is effective on the first day that service by mail is made in compliance with subdivision (a)(2)(B)." Tenn. Code Ann. § 29-26-121(c). However, this Court has recognized that the reference to "subdivision (a)(2)(B)" in subsection (c) of section 29-26-121 must be a mistake, because actually subsection (a)(3)(B) describes the way in which "[s]ervice by mail" can be effectuated. Thurmond 433 S.W.3d at 518 n.6. In the above quote of subsection (c) of Section 121, the mistaken reference to "subdivision (a)(2)(B)" is corrected. That correction is taken into account in the analysis below.

Tenn. Code Ann. § 29-26-121(c). We held in Runions that, in order to receive the benefit of the 120-day extension, plaintiffs must comply with subsection (a)(1) of Section 121 by giving the mandatory pre-suit notice to the proper potential defendants. Runions , 549 S.W.3d at 85. The question becomes whether plaintiffs who wish to rely on the 120-day extension must also substantially comply with the content requirements in (a)(2) of Section 121. The answer to that question requires interpretation of subsection (c), quoted above.

"In all cases involving statutory construction, judges must look not only at ‘the language of the statute,’ but also ‘its subject matter, the object and reach of the statute, the wrong or evil which it seeks to remedy or prevent, and the purpose sought to be accomplished in its enactment.’ " Coffee Cnty. Bd. of Educ. v. City of Tullahoma , 574 S.W.3d 832, 845-46 (Tenn. 2019) (quoting State v. Collins , 166 S.W.3d 721, 726 (Tenn. 2005) ). The statute must be read as a whole, and " ‘[s]tatutes that relate to the same subject matter or have a common purpose must be read in pari materia so as to give the intended effect to both.’ " Id. at 846 (quoting In re Kaliyah S. , 455 S.W.3d 533, 552 (Tenn. 2015) ). Further, we consider "[t]he overall statutory framework" and the "evolution [of the statute] over the course of time." Id. at 846 (citing In re Kaliyah S. , 455 S.W.3d at 552 and Powers v. State , 343 S.W.3d 36, 50 n.19 (Tenn. 2011) ).

Examining the language of Section 121(c), the first sentence gives healthcare liability claimants a 120-day extension "when notice is given...." The following two sentences explain when that notice is effective, that is, "given"—if pre-suit notice is sent via personal service, then it is effective, or given, on the date of service; if pre-suit notice is instead sent by mail, it is effective, or given, the first day service is made in compliance with Section 121 (a)(3)(B). Id.

The phrase "when notice is given" is followed by the modifier "as provided in this section." As discussed further below, Court of Appeals decisions interpreting subsection (c) assume that the word "section" as used here necessarily refers to Section 121 in its entirety, including all of the content requirements. However, looking at the pre-suit notice statute as a whole, its use of terms like "section," "subsection," "§," and "subdivision" lacks uniformity.⁴ As a result, the meaning of this modifying phrase is not clear. Interpretation requires consideration of the context and aim of the statute's references to "section," "subdivision," and the like. This is done below.

4 For example, subsection (d)(1) of Section 121 states that a "provider may comply with this section by" and then details the manner of compliance with subsection (d)(1)’s requirement of providing all parties with complete copies of the claimant's medical records. See Tenn. Code Ann. § 29-26-121(d)(1). Thus, subsection (d)(1) uses the word "section" to refer to the requirements of that subsection only; it is clearly not referring to Section 121 as a whole.

C. Evolution of Section 121

The evolution of Section 121 shows that the phrase "as provided in this section" in the first sentence of subsection (c) was not originally intended to refer to the content requirements for the subsection (a)(1) notice. SeeCoffee Cnty. Bd. of Educ. , 574 S.W.3d at 846 (consideration of a statute's evolution over time may be necessary for interpretation). As originally enacted in 2008, subsection (c) afforded plaintiffs a 90-day extension of time to file suit "[i]f notice is given as provided in this section ...." Tenn. Code Ann. § 29-26-121(c) (2008); 2008 Tenn. Pub. Acts Ch. 919 (S.B. 2001). The statute did not address when service was to be effective. It did not include most of the content requirements now contained in subsection (a)(2). For example, the statute did not direct plaintiffs to include in the notice identifying information on the patient or contact information for either the claimant or his attorney. ⁵ Tenn. Code Ann. § 29-26-121(c) (2008); 2008 Tenn. Pub. Acts Ch. 919 (S.B. 2001). Importantly, it did not include a requirement that the plaintiff provide a HIPAA-compliant medical authorization.⁶Id. Accordingly, the phrase "as provided in this section" could not have been originally intended to refer to content requirements that were not yet in the statute.

5 The statute directed plaintiffs to attach to the written notice "a list of all health care providers to whom notice is being given." 2008 Tenn. Pub. Acts Ch. 919 (S.B. 2001). This appears to be the only original "content requirement." See Tenn. Code Ann. § 29-26-121(a)(2)(D) (2008).

6 Another subsection, subsection (d), said only that the parties were "entitled" to obtain the claimant's medical records. 2008 Tenn. Pub. Acts Ch. 919 (S.B. 2001).

When amended in 2009, Section 121 was substantially reorganized and expanded. The extension of time for plaintiffs to file suit was enlarged from 90 days to 120 days. Tenn. Code Ann. § 29-26-121(c) (2009). For the first time, the statute set out content requirements, which remain the same today. Tenn. Code Ann. § 29-26-121(a)(1) (2009). For the first time, it delineated the means by which service of the pre-suit notice must be made—personal delivery or certified mail—in a manner that also remains unchanged today. Tenn. Code Ann. § 29-26-121(a)(3), (4) (2009). It also for the first time addressed when such service is effective—the date of personal service or the first day service by mail is made in compliance with Section 121(a)(3)(B). Id.

The manner in which the amended statute was reorganized is significant. The additional information on how and when service of the pre-suit notice must be made was inserted immediately after the sentence in subsection (c) with the phrase "as provided in this section." 2009 Tenn. Pub. Acts Ch. 425 (H.B. 2233). The beginning of that same sentence was changed from "[i]f notice is given" to "[w]hen notice is given...." Id. The placement of these changes indicates that the legislature intended for the 2009 amendments to link the phrase "[w]hen notice is given ... as provided in this section" to its specifications on when service of the pre-suit notice is effective.

Meanwhile, the 2009 amendments placed the new content requirements for the pre-suit notice into a new separate subsection. This new separate "content" subsection for the first time required plaintiffs to provide identifying information for the patient at issue, as well as contact information for the claimant and the attorney sending the notice. 2009 Tenn. Pub. Acts Ch. 425 (H.B. 2233). Importantly, the 2009 amendments added for the first time the requirement of a "HIPAA compliant medical authorization." Id. The placement of these changes in a separate subsection is an indication that the legislature did not intend for the 2009 amendments to link the phrase "[w]hen notice is given ... as provided in this section" to the newly created content requirements.

Thus, in adopting the 2009 amendments to Section 121, the General Assembly purposefully distinguished the requirements in subsection (c) on service of the pre-suit notice from the content requirements in subsection (a)(2). Had the legislature intended to link the 120-day extension to the content of the pre-suit notice, rather than service of the notice itself, it could have specified such within subsection (c), as it did with the manner and effective date of service of the pre-suit notice. SeeAm. Heritage Apartments, Inc. v. Hamilton Cnty. Water and Wastewater Treatment Auth. , 494 S.W.3d. 31, 45 (Tenn. 2016) (presuming the legislature "acted purposely" in its statutory amendments). It did not.

In short, the evolution of Section 121 from the original 2008 version to the substantially expanded and reorganized 2009 version, the nature of the amendments, and the placement of the new language in the amended statute, all are indications that the legislature intended the 120-day extension to file suit to be linked to the manner and effective date of service of the pre-suit notice, not the content requirements.

D. Practical Effect of Court of Appeals’ Interpretation

In construing a statute, the practical effects of different interpretations must also be considered in light of the "object" of the statute and " ‘the purpose sought to be accomplished in its enactment.’ " Coffee Cnty. Bd. of Educ. , 574 S.W.3d at 845-46.

As noted above, the Court of Appeals has held in numerous cases that plaintiffs must substantially comply with the content requirements in subsection (a)(2), and in particular the requirement of a HIPAA-compliant medical authorization, in order to rely on the 120-day extension of time for filing the lawsuit provided in subsection (c) of Section 121. The practical effect of this interpretation shows that it is misguided and at odds with the legislative intent of Section 121.

The majority in this case correctly explains the holding in Stevens , that to determine a healthcare liability plaintiff's substantial compliance with the content requirements in Section 121, reviewing courts consider the extent and significance of the plaintiff's errors and omissions, including whether the defendant suffered prejudice. Stevens , 418 S.W.3d at 555. If the noncompliance interferes with the purpose of Section 121 or deprives the defendant of a benefit the statute confers, the defendant has been prejudiced and the plaintiff has failed to substantially comply. If on the other hand, despite the errors, the purpose of the statute is fulfilled and the defendant receives the intended benefit, then there is substantial compliance.

Stevens established that a healthcare liability plaintiff's failure to substantially comply with the content requirements of Section 121 will result in dismissal of the complaint without prejudice. However, this Court has not expressly addressed whether a healthcare liability plaintiff must substantially comply with the content requirements, and specifically the medical authorization form, in order to rely on the 120-day extension of time to file suit.⁷

7 In Stevens , the Court expressly declined to rule on whether plaintiffs must substantially comply with the content requirements in subsection (a)(2) of Section 121 in order to be entitled to the 120-day extension of time to file suit. 418 S.W.3d at 560 (declining to address whether dismissal without prejudice for failure to provide a HIPAA-compliant medical authorization "would effectively operate as a dismissal with prejudice because [the plaintiff's] claim would be time-barred"). The majority opinion in the instant case presumes plaintiffs must comply with the content requirements in subsection (a)(2) in order to rely on the 120-day extension, but does not separately analyze the issue; that question is left for another day.

However, our Court of Appeals has done so. The first case appears to be Byrge v. Parkwest Medical Center , 442 S.W.3d 245 (Tenn. Ct. App. 2014). In Byrge , the plaintiff's first lawsuit was filed after expiration of the one-year statute of limitations but within the 120-day extension period. Id. at 247. It was voluntarily dismissed, re-filed, and then dismissed as untimely because the medical authorization sent for the first lawsuit did not comport with two HIPAA requirements. Id. On this basis, the trial court held that the 120-day extension was inapplicable, so the first and second lawsuits were both time-barred. Id.

The Court of Appeals in Byrge affirmed with essentially no analysis. The appellate court said only that, in order to rely on the 120-day extension, the plaintiff "must have complied with Tenn. Code Ann. § 29-26-121." Id. at 249-50. The court said that because the plaintiff "failed to comply with Tenn. Code Ann. § 29-26-121," he "did not receive the 120 day extension, and, therefore, his first complaint was not timely filed." Id. at 250.

Since Byrge , the Court of Appeals has dismissed numerous healthcare liability lawsuits, holding with little analysis that failure to comply with the content requirements in subsection (a)(2) of Section 121 precludes plaintiffs from relying on the 120-day extension of time. See, e.g. , Gray v. Saint Francis Hospital-Bartlett, Inc. , No. W2018-00836-COA-R9-CV, 2019 WL 1750945 (Tenn. Ct. App. Apr. 16, 2019) (perm. app. pending ); Webb v. AMISUB (SFH) Inc. , No. W2017-02539-COA-R3-CV, 2019 WL 1422884, at *4 (Tenn. Ct. App. Mar. 29, 2019) (perm. app. pending ); Wenzler v. Xiao Yu , No. W2018-00369-COA-R3-CV, 2018 WL 6077847, at *11 (Tenn. Ct. App. Nov. 20, 2018) ; Dortch v. Methodist Healthcare Memphis Hosps. , No. W2017-01121-COA-R3-CV, 2018 WL 706767, at *4 (Tenn. Ct. App. Feb. 5, 2018), perm. app. denied (Tenn. June 7, 2018); Lawson v. Knoxville Dermatology Grp., P.C. , 544 S.W.3d 704, 713 (Tenn. Ct. App. 2017), perm. app. denied (Tenn. Nov. 16, 2017); Rush v. Jackson Surgical Assocs. PA , W2016-01289-COA-R3-CV, 2017 WL 564887, at *5 (Tenn. Ct. App. Feb. 13, 2017), perm. app. denied (Tenn. June 8, 2017); Piper v. Cumberland Med. Ctr. , No. E2016-00532-COA-R3-CV, 2017 WL 243507, at *4-5 (Tenn. Ct. App. Jan. 20, 2017) ; J.A.C. ex rel. Carter v. Methodist Healthcare Memphis Hosps. , 542 S.W.3d 502, 514 (Tenn. Ct. App. 2016), perm. app. denied (Tenn. Mar. 9, 2017); Dolman v. Donovan , No. W2015-00392-COA-R3-CV, 2015 WL 9315565, at *5 (Tenn. Ct. App. Dec. 23, 2015), perm. app. denied (Tenn. May 6, 2016); Johnson v. Parkwest Med. Ctr. , No. E2013-01228-COA-R3-CV, 2014 WL 3765702, at *6-7 (Tenn. Ct. App. July 31, 2014), perm. app. denied (Tenn. Dec. 17, 2014); Roberts v. Prill , E2013-02202-COA-R3-CV, 2014 WL 2921930, at *1 (Tenn. Ct. App. June 26, 2014).

All of these dismissals were based at least in part on flaws in the medical authorization form. Indeed, substantial compliance with that content requirement, a HIPAA-compliant medical authorization, has proven especially challenging. Given the exacting requirements in HIPAA, the more-forgiving "substantial compliance" standard set out in Stevens may be unrealistic to apply to a content requirement governed by a strict statute such as HIPAA. Stevens , 418 S.W.3d at 555 (holding substantial compliance to be standard for section 29-26-121 (a)(2)(E) ).

In the instant appeal, Defendant Dr. Karl argues that "[t]he HIPAA regulations clearly dictate that a medical record authorization is useless with even one core element missing." There is Tennessee case law to support this assertion; Defendant Dr. Karl cites several Tennessee cases for the proposition that "even one core element missing from a medical record authorization renders the authorization useless for obtaining records" and thus not in substantial compliance. See, e.g.,Buckman v. Mt. States Health Alliance , 570 S.W.3d 229, 231-32 (Tenn. Ct. App. 2018), perm. app. denied (Nov. 15, 2018) (claim dismissed because of erroneous expiration date); Parks v. Walker , 585 S.W.3d 895, 899–90 (Tenn. Ct. App. 2018), perm. app. denied (Tenn. Mar. 27, 2019) (claim dismissed because of blank in space for purpose of the requested use or disclosure); Lawson , 544 S.W.3d at 708-09 (claim dismissed because of blank in space for designation of who is authorized to use or disclose the medical information).

Plaintiffs who sent imperfect medical authorizations have been found substantially compliant in very few instances. One such instance was a case in which the defendants had successfully used the medical authorizations to obtain the claimant's medical records, Hunt v. Nair , No. E2014-01261-COA-R9-CV, 2015 WL 5657083, at * 6 (Tenn. Ct. App. Sept. 25, 2015), perm. app. denied (Tenn. Jan. 21, 2016) (omission in medical authorization did not prejudice defendants because all but one provider produced the medical records in response to the authorization, and that one provider declined because it misread the authorization, not because of omission); and another where the defendant may not have actually even needed a medical authorization in order to access the claimant's medical records, Hamilton v. Abercrombie Radiological Consultants , 487 S.W.3d 114, 120-21 (Tenn. Ct. App. 2014), perm. app. denied (Tenn. May 15, 2015) (only omission in medical authorization was the date the authorized party signed the HIPAA form, and there was no evidence defendants were prejudiced by the omission because defendant physician may have had access to the records through her employment with codefendant medical group).⁸ While I do not disagree with the majority's holding that "defendants need not ‘test’ incomplete and facially noncompliant medical authorizations," this holding will likely mean that even fewer cases involving flawed medical authorizations will result in a finding of substantial compliance because defendants will no longer even try to use imperfect medical authorizations.⁹

8 But see , Bray v. Khuri , 523 S.W.3d 619, 622 (Tenn. 2017) (holding that plaintiffs "need not provide a HIPAA-compliant authorization when a single healthcare provider is given pre-suit notice of a healthcare liability claim."). Hamilton predated Bray. After Bray , it is less likely that the fact situation in Hamilton would have resulted in a finding of substantial compliance with the medical authorization requirement.

9 Given the potential for unwittingly ending up with an untimely lawsuit, wary plaintiffs’ only other alternative is to eschew the 120-day extension altogether and file the lawsuit within the original one-year statute of limitations. This practical effect also shows that the Court of Appeals’ interpretation of subsection (c) runs counter to legislative intent. The healthcare liability statutes now place considerable additional burdens on plaintiffs, such as obligations to hire an expert, obtain a good faith certificate, and file the pre-suit notice at least 60 days before the complaint is filed. The 120-day extension is clearly intended to offset those burdens. An interpretation that compels plaintiffs to avoid using the 120-day extension has the effect of shortening the statute of limitations for healthcare liability actions. This is contrary to the express language in subsection (c), which states: "In no event shall this section operate to shorten ... the statutes of limitations or repose applicable to any action asserting a claim for health care liability[.]" Tenn. Code Ann. § 29-26-121(c) (emphasis added).

In sum, the Court of Appeals’ interpretation of subsection (c) of Section 121, requiring substantial compliance with the subsection (a)(2) content requirements in order for plaintiffs to rely on the 120-day extension to file, has had the practical effect of causing numerous dismissals of healthcare liability lawsuits on technical grounds. Amicus Tennessee Trial Lawyers Association points to this type of result as contrary to Tennessee's longstanding policy of deciding civil actions on their merits, not on procedural technicalities. They urge the Court to interpret Section 121 so that it does not operate to "simply bar access to recovery in cases presumably screened by qualified experts and deemed meritorious for technical reasons that have nothing to do with advancing appropriate and legitimate societal interest and public policy."

I agree. We have long aimed to ensure "that cases and controversies be determined upon their merits and not upon legal technicalities or procedural niceties." Jones v. Prof'l Motorcycle Escort Serv., L.L.C. , 193 S.W.3d 564, 572 (Tenn. 2006) (quoting Karash v. Pigott , 530 S.W.2d 775, 777 (Tenn. 1975) ). The Court of Appeals’ interpretation results in such frequent dismissal with prejudice of otherwise meritorious cases on purely technical grounds that it borders on the "absurd result" that we are to avoid in construing statutes. SeeTennessean v. Metro. Gov't of Nashville , 485 S.W.3d 857, 872 (Tenn. 2016).

E. Conclusion

In Myers v. AMISUB (SFH), Inc. , this Court rightly observed that subsection (c) of section 29-26-122 plainly states that a healthcare liability plaintiff's failure to file a certificate of good faith makes his claim "subject to dismissal with prejudice." Myers , 382 S.W.3d at 311 (citing Tenn. Code Ann. § 29–26–122(c) ). However, Section 121 contains no such language as to the content requirements for the pre-suit notice. Had the legislature intended dismissal with prejudice to be the consequence for attaching an imperfect medical authorization to the pre-suit notice, it would have included dismissal with prejudice as a sanction for noncompliance, as it did with the certificate of good faith requirement in section 29-26-122. It chose not to do so.

Yet, as shown above, the practical result of the Court of Appeals’ statutory construction, linking compliance with the content requirements to the ability of a plaintiff to rely on the 120-day extension, is to make dismissal with prejudice the de facto sanction for filing a flawed medical authorization.

The content requirements in subsection (a)(2) of Section 121 were enacted to "facilitate early resolution of healthcare liability claims." Stevens , 418 S.W.3d at 554. The Court of Appeals’ interpretation of subsection (c) of Section 121 ends up being counter to that legislative purpose. As illustrated by the many Court of Appeals cases on the medical authorization, plaintiffs routinely file health care liability lawsuits after the one-year statute of limitations but during the 120-day extension. The pre-suit notice statute contains no provision requiring potential defendants to notify plaintiffs of claimed errors in content, such as flawed medical authorizations, prior to the filing of the lawsuit. Healthcare liability defendants who receive deficient medical authorizations, who may otherwise have pursued settlement, are instead incentivized to remain silent about perceived procedural deficiencies, thus thwarting the chances of settlement prior to the filing of the lawsuit. Indeed, in the current circumstances, it may be malpractice for defense counsel to inform their opponents of possible errors in the pre-suit notice until it is too late to correct them. Consequently, plaintiffs often learn of a challenge to the medical authorization or other content requirements via defendants’ motions to dismiss or for summary judgment after the lawsuit is filed. Myers , 382 S.W.3d at 307. By this time, the statute of limitations has often elapsed, making the action time-barred unless the 120-day extension of time applies.

The language of subsection (c) of Section 121 does not demand such an interpretation. The evolution of Section 121 shows that this interpretation was not intended by our legislature. The evolution of Section 121 from the original 2008 version to the substantially expanded and reorganized 2009 version, the nature of the amendments, and the placement of the new language in the amended statute, all indicate that the legislature intended the 120-day extension to file suit to be linked to the manner and effective date of service of the pre-suit notice, not the content requirements.

In real life, as opposed to the virtual reality of legal proceedings, if a person presents a medical provider with an imperfect medical authorization, the authorization is handed back with directions to fix it and re-submit it, so as to permit the provider to legally release the medical records. Our legislature was aware of this when Section 121 was amended. The requirement of a HIPAA-compliant medical authorization was not added to Section 121 to trip up plaintiffs; it was added to facilitate pre-suit settlement negotiations.

Holding that the 120-day extension of time to file suit is not contingent on substantial compliance with the content requirements in subsection (a)(2) furthers that legislative purpose. If plaintiffs whose sole error is to attach an imperfect medical authorization to the pre-suit notice can rely on the 120-day extension, dismissal of the lawsuit without prejudice gives them the opportunity to re-file their lawsuits with corrected medical authorizations. This allows the parties to conduct settlement negotiations instead of skirmishing over summary judgment motions based on technical procedural grounds. That result is consonant with legislative intent and consistent with our "general presumption against dismissing cases with prejudice on procedural grounds." Stevens , 418 S.W.3d at 560. As stated in Stevens , a "plaintiff's less-than-perfect compliance with Tenn. Code Ann. § 29-26-121(a)(2)(E) ... should not derail a healthcare liability claim." Id. at 555.

To be sure, failure to substantially comply with a content requirement such as the HIPAA authorization will still result in dismissal without prejudice of the healthcare liability action, as we held in Stevens. However, failure to substantially comply with subsection (a)(2) of the pre-suit notice statute would not prevent plaintiffs from relying on the 120-day extension of time in subsection (c) of that statute, and re-filed lawsuits would not be dismissed as untimely.

Interpreting Section 121, I would hold that the 120-day extension of time to file suit is not contingent on plaintiffs’ substantial compliance with the so-called "content requirements" in subsection (a)(2) of Section 121. Rather, I would hold that the availability of the 120-day extension in subsection (c) hinges on compliance with the provisions referenced in that subsection; i.e., plaintiffs may rely on the 120-day extension so long as they serve the mandatory pre-suit notice to providers, required under subsection (a)(1), in accordance with the provisions on personal service or service by mail.

For that reason, I respectfully dissent from the majority's conclusion that the Plaintiffs’ re-filed lawsuit is untimely.