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Med-Mal Pre-suit Notice

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CaseDeborah Bray v. Radwan R. Khuri, MD

Issue:  Did the medical release comply with HIPAA?

Facts:  Plaintiff sent Defendant a “Notice of Potential Claim for Medical Malpractice” letter and “Authorization to Disclose Health Information.” Defendant moved to dismiss on the basis that Plaintiff failed to comply with the statute because the Authorization was not HIPAA complaint as required by Tenn. Code Ann. § 29-26-121(a)(2)(E), because it did not include a description of the information to be used and it failed to identify which health care providers were authorized to make the requested disclosures. The trial court dismissed the action.

Appellate Decision:  The intermediate court affirmed dismissal. First, the court held that an Authorization was required—even though Defendant actually possessed the medical records—“he was unable to review them with his attorney in order to evaluate the merits” of the lawsuit. Second, the court agreed with Defendant that the Authorization was not HIPAA-compliant: it left blank two required items, and a cover letter did not specifically authorize Defendant to “fill in the blanks.” Moreover, plaintiffs have the burden to comply with the statute, not defendants.

Review Granted:  June 23, 2016.

Prediction:  Ben thinks the supreme court is likely to affirm based on the facts as stated by the intermediate court. However, there are various exceptions to HIPAA privacy laws that may apply to have allowed the doctor to consult with his malpractice attorney regarding records possessed by the doctor without a waiver. E.g. 45 C.F.R. § 164.506(c).