White County Judge Acknowledges Sterilization-For-Jailtime Deal Still Active; Plaintiffs Seek to Terminate the Program

After a furious national uproar in response to an inmate sterilization program instituted by White County General Sessions Judge Sam Benningfield, in late July of this year, Judge Benningfield publicly announced that he had formally rescinded his previous standing order instituting the sterilization program, which had been compared to eugenics.  Although dozens of inmates had been surgically sterilized by the time the order was “rescinded,” news coverage of the scandal subsided immediately, permitting the fallout from the sterilization program to continue virtually uncovered.

In a recent filing, however, Judge Benningfield and White County Sheriff Oddie Shoupe—who are currently being sued over the sterilization program—acknowledged that the order purporting to rescind the program actually “did not renege on the offer of a 30-day reduction in the jail sentence[s]” of inmates who agreed to be sterilized after all.  This concession confirms concerns that had been raised by the attorney for the inmates who have sued over the program, whose lawsuit alleged that:

“Despite claiming to be an ‘Order Rescinding [his May 15, 2017] Standing Order,’ however, Defendant Benningfield’s July 26, 2017 Supplemental Order states unequivocally that inmates who fail to ‘demonstrate[] to the court their desire to improve their situations and take serious and considered steps toward their rehabilitation by having the [specified long-term surgical sterilization] procedures or agreeing to have same’ will still be incarcerated for 30 days longer than similarly situated inmates who do acquiesce to surgical sterilization.”

Judge Benningfield and Sheriff Shoupe, who have both been named as defendants in the lawsuit over the sterilization program, have asked a federal judge to dismiss the lawsuit against them.  In response to their concession that the inmate sterilization offer is still active, however, on Monday, the Plaintiffs sought an immediate declaratory judgment that Judge Benningfield’s ongoing sterilization program is unconstitutional.  “This program is outrageous, it is morally indefensible, and it’s illegal,” attorney Daniel Horwitz, who is representing the inmates, stated at the outset of the lawsuit.  Selected documents from the case are available below:

Plaintiffs’ Amended Complaint for Injunctive and Declaratory Relief

May 15, 2017 Standing Order

July 26, 2017 Order Rescinding Previous Standing Order

Defendants’ Motion to Dismiss

Plaintiffs’ Response in Opposition to Motion to Dismiss

Plaintiffs’ Motion to Certify State Law Claims

Plaintiffs’ Motion for Partial Summary Judgment

 

Slate: If the Supreme Court thinks nonmembers can’t be compelled to pay union fees, then unions can’t be compelled to represent nonmembers.

By Daniel A. Horwitz:

Late last month, the Supreme Court announced that it would hear Janus v. AFSCME, a case that challenges public-sector unions’ right to collect fees from nonmembers. Such “fair share” fees have been a legal bedrock of labor unions since the Supreme Court’s 1977 ruling in Abood v. Detroit Board of Education.  In Abood, the court held that unions could lawfully charge fees to non–union members to help offset the costs of “collective bargaining, contract administration, and grievance adjustment” from which all employees benefit, as long as the union does not use such fees for political purposes.  Continue reading Slate: If the Supreme Court thinks nonmembers can’t be compelled to pay union fees, then unions can’t be compelled to represent nonmembers.

Lawsuit Seeks to End White County’s Ongoing Sterilization Program

An inmate in White County, Tennessee, has filed a lawsuit in White County Chancery Court seeking to put an end to an ongoing sterilization program instituted by White County General Sessions Judge Sam Benningfield.  Under the program, White County inmates who refuse to submit to long-term surgical sterilization are required to serve jail sentences that are 30 days longer than similarly situated inmates who agree to be sterilized.  The lawsuit—filed directly against Judge Benningfield and the White County Sheriff—asks the Chancery Court to declare Judge Benningfield’s sterilization program unconstitutional and prevent the Sheriff from enforcing it.

“This program is outrageous, it is morally indefensible, and it’s illegal,” said attorney Daniel Horwitz, who is representing the inmate.  “We fully expect the Chancery Court to put an end to this abusive and reprehensible program and ensure that it never returns again.”

“Eugenics is illegal in Tennessee and across the United States,” the lawsuit reads.  “Tennessee law provides absolutely no authority to institute or enforce such a program, and both the Tennessee Constitution and the United States Constitution forbid it.  From mass sterilizations in Nazi Germany to eugenics experimentation in Tuskegee, Alabama, eugenics is anathema to any conception of morality and represents one of the most disturbing chapters in the dark history of human cruelty.  Judge Benningfield’s eugenics program should be—and must be—declared illegal and permanently enjoined as a result.”

Judge Benningfield’s sterilization program gained national attention after White County District Attorney Bryant Dunaway expressed concerns about the program’s rank illegality and immorality to a reporter in July 2017.  Thereafter, Judge Benningfield partially rescinded his standing order in response to national outcry.  Because Judge Benningfield’s supplemental order still provides that inmates who refuse to be sterilized must serve sentences that are 30 days longer than those who agree to surgical sterilization, however, the program is still ongoing.

In addition to asking the Court to declare the program unconstitutional, the lawsuit seeks to “[e]njoin the Defendants from subjecting the Plaintiff to an additional 30 days of incarceration for exercising his constitutional right to reproductive freedom.”  It further asks the Court to award the Plaintiff attorney’s fees and have the fee award “donated to the United States Holocaust Memorial Museum and the Tuskegee History Center.”

Selected media coverage regarding the program appears below:

-Judge under scrutiny for offering reduced sentences for vasectomies, birth control implants

-White County Inmates Given Reduced Jail Time If They Get Vasectomy

‘We were guinea pigs’: Jailed inmates agreed to birth control

Tennessee judge rescinds inmate sterilization-for-freedom program

Judge to inmates: Get sterilized and I’ll shave off jail time

###

Local First Amendment Scholar Calls on Justice Kennedy to Reverse His Worst First Amendment Decision

By Daniel A. Horwitz

Local First Amendment scholar David L. Hudson, Jr. – an occasional guest contributor to this blog whose First Amendment resume rivals anyone alive (Ombudsman for the First Amendment Center, Legal Fellow for the Foundation for Individual Rights in Education, Professor of First Amendment Law at Vanderbilt Law School, etc.) – has penned an excellent piece over at Slate calling on U.S. Supreme Court Justice Anthony Kennedy to undo the damage of Garcetti v. Ceballos—one of the worst First Amendment decisions in the Supreme Court’s modern history.

Decided in 2006, the Supreme Court’s contentious 5-4 decision in Garcetti upended previously settled law regarding the First Amendment rights of public employees.  The Court’s majority opinion—authored by Justice Kennedy—stands for the general proposition that even if public employees are exposing governmental misconduct or speaking about matters of unquestioned public importance, they have no First Amendment protection whatsoever for any speech made pursuant to their official duties.  As Hudson explains:

“In Garcetti, the Supreme Court created a categorical rule: ‘When public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.'”

The consequences of Garcetti have been devastating, falling particularly hard on whistleblowers and other public employees who have sought to expose official misconduct.  Professor Hudson’s full piece (accessible here) is well worth the read, and for the public’s sake, one can only hope that Justice Kennedy will take notice.

Questions about this article?  Email Daniel Horwitz at daniel.a.horwitz@gmail.com.

Like ScotBlog?  Join our email list or contact us here, or follow along on Twitter @Scot_Blog and facebook at https://www.facebook.com/scotblog.org

Breaking: Foreign Vanderbilt Law School Graduate Wins Right to Take the Tennessee Bar Exam

By Daniel A. Horwitz

Maximiliano Gluzman, the “obviously very, very qualified” Vanderbilt Law School graduate who was denied the opportunity even to take the Tennessee Bar Exam, has officially won his case before the Tennessee Supreme Court.  Based on the Court’s order approving his petition, Mr. Gluzman will be able to take the upcoming bar exam scheduled for February 2018.

“We conclude that the requirements of section 7.01 should not be applied to preclude Mr. Gluzman from taking the Tennessee bar examination,” the Court held in a per curiam order.  “As a result, the BLE may not hereafter rely upon section 7.01 of Rule 7 as a basis to deny Mr. Gluzman permission to take the Tennessee bar examination.”  The Court’s order is available here.

“We are ecstatic that the Tennessee Supreme Court has vindicated Mr. Gluzman’s claim that he was wrongfully denied the opportunity to take the Tennessee Bar Exam,” said Daniel Horwitz, Mr. Gluzman’s attorney.  “Mr. Gluzman is as qualified to practice law as any attorney in Tennessee, and he will be a tremendous asset to the legal profession.  Justice was served today.”

The briefing in Gluzman v. BLE featured the participation of three leading national conservative groups, which argued that the Board’s crippling regulations violated Mr. Gluzman’s fundamental right to earn a living free from irrational government overreach.  Tennessee’s two flagship law schools—Vanderbilt Law School and the University of Tennessee College of Law—also filed petitions in the case after seeing students disenroll from their law programs once the Board began implementing its protectionist regulations.  All parties’ briefs from the case are available below.

Petitioner Maximilano Gluzman’s Principal Brief

Brief of Respondent the Tennessee Board of Law Examiners

Petitioner Maximiliano Gluzman’s Reply Brief

Brief of Amici Curiae The Beacon Center, Cato Institute, and Goldwater Institute

Petition of Vanderbilt Law School and University of Tennessee College of Law

Selected news coverage about the ruling is available at the following links:

-Nashville Post: Supreme Court rules Argentine can take Tennessee Bar

-Bloomberg: Argentine LL.M. With 3.9 GPA Wins Bid to Take Tenn. Bar Exam

 Selected news coverage about the case is available at the following links:

-Nashville Post: Argentine lawyer challenging Tennessee Board of Law Examiners

-Nashville Post: National conservative groups join local bar fight

-Above the Law: State Bars Foreign Student From Bar Exam — Next Stop, State Supreme Court

-ABA Journal: Vanderbilt law prof who taught Argentine LLM student backs his bid to take the bar exam

-The Tennessean: How Tennessee discriminated against a talented Vanderbilt law grad

-Cato At Liberty Blog: Even Lawyers Have the Right to Earn an Honest Living

-Beacon Center Blog: Banned From the Bar Exam

###

Like ScotBlog?  Join our email list or contact us here, or follow along on Twitter @Scot_Blog and facebook at https://www.facebook.com/scotblog.org

Tennessee Advisory Committee to the U.S. Commission on Civil Rights Holds Comprehensive Hearing on Civil Asset Forfeiture

By Daniel A. Horwitz

In what may well have been the most comprehensive hearing on civil asset forfeiture ever held, the Tennessee Advisory Committee to the U.S. Commission on Civil Rights held a day-long hearing on Tennessee’s forfeiture laws at the Nashville Public Library on Monday, July 24th.  The hearing featured testimony from District Attorneys past and present, police officers, legislators, attorneys, scholars, local and national advocacy groups, individuals affected by Tennessee’s forfeiture laws, and others interested in the topic.  Video footage of the Committee’s hearing is available at the links that follow:

U.S. Commission Opening Remarks and Introduction

Panel 1—Law Enforcement

Panelists: Glenn R. Funk (District Attorney, Nashville and Davidson County);  D. Michael Dunavant (District Attorney, Tennessee’s 25th Judicial District, President Trump’s nominee for U.S. Attorney for the Western District of Tennessee); Stephen D. Crump (District Attorney, Tennessee’s 10th Judicial District); Carlos Lara (Lieutenant, Metro Nashville Police Department)

Panel 2—Legislators

Panelists: State Representative Mike Carter (R-Ooltewah); State Representative John Ray Clemmons (D-Nashville); State Representative William G. Lamberth (R-Cottontown); State Representative Martin Daniel (R-Knoxville); State Representative Harold M. Love, Jr. (D-Nashville); State Representative G.A. Hardaway (D-Memphis)

Panel 3—National and State Organizations

Panelists: Vikrant Reddy (Senior Research Fellow, Charles Koch Institute); Lee McGrath (Senior Legislative Counsel, Institute for Justice); Hedy Weinberg (Executive Director, ACLU of Tennessee); Julie Warren (State Director, Tennessee/Kentucky Right on Crime)

Panel 4—Practitioners and Academics

Panelists: George Frank Lannom (Tennessee Association of Criminal Defense Lawyers);  Joy Radice (Professor of Law, University of Tennessee College of Law); John Morris Miles (Attorney, Union City); Ben Raybin (Attorney, Nashville); Kyle Mothershead (Attorney, Nashville); Elliot Ozment (Attorney, Nashville)

Panel 5—Advocacy Organizations

Panelists: Jackie Sims (Tennessee State Conference of the NAACP); Christopher M. Bellamy (President, Napier-Looby Bar Association); Samuel Lester (Street Outreach and Advocacy Coordinator, Open Table Nashville)

The hearing record will remain open for public comment until August 23, 2017.  If you would like to submit comments for consideration, please email Jeff Hinton, Southern Regional Director for the U.S. Commission on Civil Rights, at jhinton@usccr.gov.  Following the conclusion of the public comment period, the Tennessee Advisory Committee will consider all commentary and prepare a final report and recommendation.

Selected press coverage of the hearing is available below.

-Fox 17:  Tenn. Attorneys say law enforcement wrongfully benefits from drug seizures

###

Like ScotBlog?  Join our email list or contact us here, or follow along on Twitter @Scot_Blog and facebook at https://www.facebook.com/scotblog.org

 

 

Update: White County Judge Rescinds Sterilization Order…Sort of

By Daniel A. Horwitz

Last week, news broke of White County General Sessions Judge Sam Benningfield’s wildly unconstitutional standing order that White County inmates who declined to submit to sterilization would receive an additional 30 days in jail.  In an order dated July 26, 2017, Judge Benningfield has formally rescinded his prior order with the caveat that he will still be handing out a eugenics discount to anyone who “demonstrate[s] to the court their desire to improve their situations” by being sterilized.

Even as partially rescinded, however, Judge Benningfield’s policy of determining the length of an inmate’s sentence based on whether the inmate has agreed to submit to sterilization remains illegal.  As previously explained:

 In America, reproductive freedom is a fundamental constitutional right, and the equal protection clause of the United States Constitution forbids the government from treating people differently based on whether or not they choose to exercise their right to reproductive freedom.  Tennessee’s criminal code also contains several specifically-designated mitigating factors and enhancement factors that judges are permitted to consider during sentencing.  Whether a defendant has submitted to sterilization is not among them.

White County’s backdoor eugenics program needs to be terminated in its entirety.  The program is a moral outrage and a blight on the entire legal profession.  Nobody—and certainly no member of the Bar—should tolerate it.  If Judge Benningfield will not resign his office, he should be removed.

Like ScotBlog?  Join our email list or contact us here, or follow along on Twitter @Scot_Blog and facebook at https://www.facebook.com/scotblog.org

 

 

Eugenics is Illegal

By Daniel A. Horwitz

On Wednesday evening, News Channel 5 broke the unspeakable outrage that a judge in White County, Tennessee, had signed a standing order providing for a 30-day “reduction” in jailtime if an inmate submits to sterilization.  According to the report, 70 inmates have already accepted this “eugenics discount” in exchange for early release.  Somehow, each aspect of the story is even more shocking than the next.

To begin, General Sessions Judge Sam Benningfield—the mastermind behind White County’s backdoor eugenics program—defended his efforts without any apparent sense of shame, telling Channel 5’s Chris Conte that: “I hope to encourage [inmates] to take personal responsibility and give them a chance, when they do get out, to not to [sic] be burdened with children.”

Even worse, Judge Benningfield’s standing eugenics order has apparently been on file since May 15, 2017—meaning that an untold number of lawyers, judges, doctors, and law enforcement personnel have either acquiesced to it or simply turned a blind eye in the face of a policy that the Rome Statute of the International Criminal Court designates as a crime against humanity.

To be absolutely and unequivocally clear: eugenics is illegal.  In America, reproductive freedom is a fundamental constitutional right, and the equal protection clause of the United States Constitution forbids the government from treating people differently based on whether or not they choose to exercise their right to reproductive freedom.  Tennessee’s criminal code also contains several specifically-designated mitigating factors and enhancement factors that judges are permitted to consider during sentencing.  Whether a defendant has submitted to sterilization is not among them.

The framing of Judge Benningfield’s eugenics program as a “voluntary sentencing reduction” is also deeply troubling.  It is not.  Simply stated: In White County, Tennessee, any inmate who refuses to be sterilized is punished with an additional 30 days in jail.

Such a program is profoundly coercive—especially for defendants convicted of minor crimes who may avoid jail time entirely if they submit to sterilization.  Anyone familiar with the criminal justice system knows that this length of time is sufficient to send a person’s life into disarray, because an extra month in prison can and frequently does result in job loss, loss of one’s home, or loss of one’s children.  Of note, under Tennessee law, everyone is also at risk of being imprisoned for 30 days at any time for even the slightest traffic infraction based on law enforcement’s discretion.

In addition to its rank illegality and immorality, it goes without saying that using the coercive power of the state to promote sterilization also has severe potential for abuse.  As a historical matter, eugenics programs always target disfavored minorities—from Jews in Nazi Germany to black men in Tuskegee, Alabama.  Firmly in keeping with this tradition, Judge Benningfield’s eugenics program is reserved for White County inmates and apparently targets those suffering from drug addiction.  In this regard, it is no less disgusting.

Judge Benningfield’s eugenics program is an outrage.  He need not serve on the bench any longer, and he need not keep his law degree any longer.  Infuriatingly, this also is not the first time that an officer of the Court who has been charged with upholding the law has implemented a (very recent) sterilization program in Tennessee—a fact that is similarly unconscionable in its own right.  If Tennessee’s administrators of the practice of law took a fraction of the effort that they’ve expended trying to prevent qualified immigrants from taking the bar exam and redirected it toward removing people like Judge Benningfield from the profession, perhaps further abuses like this would be avoided.

Compounding the outrage is that nobody has yet filed suit over Judge Benningfield’s eugenics program during the two months that it has been in effect.  Whether initiated by the ACLU, a public defender, or a private defense attorney, such a lawsuit needed to be filed yesterday.  If you or a client of yours is affected by White County’s eugenics program and you want assistance pursuing the case, please feel free to contact me at daniel.a.horwitz@gmail.com.  I will gladly take the case pro bono and donate the proceeds to the Holocaust Museum and the Tuskegee History Center.  A program like this violates what the United States Supreme Court has declared to be “one of the basic civil rights of man,” and nobody—least of all the Bar—should tolerate it.

Like ScotBlog?  Join our email list or contact us here, or follow along on Twitter @Scot_Blog and facebook at https://www.facebook.com/scotblog.org

Defamation Lawsuit Filed Against Restaurateur Randy Rayburn Dismissed in Full

The defamation lawsuit filed against beloved Nashville restaurateur Randy Rayburn has been dismissed outright by Davidson County Circuit Court Judge Kelvin Jones.  The costs of the lawsuit were also assessed against Plaintiff Tom Loftis, the aggrieved former director of The Randy Rayburn School of Culinary Arts at Nashville State Community College, who had sued Mr. Rayburn for a whopping $1.5 million over a March 2, 2016 Tennessean article that had reported that the program was turning out unqualified students.

The lawsuit, first reported by the Nashville Business Journal, drew national media coverage due in part to its “extraordinarily innocuous subject matter.”  According to one media outlet, the lawsuit’s “attempt to fashion a libel lawsuit out of nothing bears far more resemblance to those filed by plaintiffs with fools for lawyers.”  The Plaintiff in the case was represented by Nashville attorneys Gary Blackburn and Bryant Kroll.

In his verbal ruling from the bench dismissing the lawsuit against Mr. Rayburn, Judge Jones noted that under Tennessee law, an allegedly defamatory statement must “be read as a person of ordinary intelligence would understand it in light of the surrounding circumstances.”  Judge Jones also observed that whether a statement is capable of being understood as defamatory “is a question of law to be determined by the court.”  Finding that Mr. Loftis’s Complaint could not satisfy these basic standards even at the motion to dismiss stage, Judge Jones dismissed Mr. Loftis’s lawsuit with prejudice and assessed him the costs of the litigation.

Said Daniel Horwitz, Mr. Rayburn’s lead counsel: “We are pleased that this baseless lawsuit has come to a quick and much-deserved end.  The legal system should not be used to litigate hurt feelings or to deter people from speaking to the media.  We are grateful that Judge Jones dismissed this frivolous lawsuit at its first appearance, and we are thrilled that Mr. Rayburn will be able to recommit his full attention to doing what he loves: running wonderful restaurants, serving his community, and feeding delicious food to his grateful patrons.”

Documents from the case and selected media coverage are available below.

###

Case Documents:

Plaintiff’s First Amended Complaint

Defendant’s Motion to Dismiss First Amended Complaint

Plaintiff’s Response to Motion to Dismiss (1)/Plaintiff’s Response to Motion to Dismiss (2)

Defendant’s Reply to Plaintiff’s Response

Order Dismissing Plaintiff’s Complaint

Transcript of Hearing on Motion to Dismiss

Plaintiff’s Notice of Appeal

Selected Media Coverage:

-Nashville Business Journal: Nashville restaurateur Randy Rayburn faces $1.5 million lawsuit

-TechDirt: Former University Official Files Libel Lawsuit Against His Replacement For Things A Journalist Said

-Nashville Business Journal: Judge dismisses $1.5M suit against well-known restaurateur

-First Amendment Center’s Newseum Institute: Unusual Defamation Suit Targets Source of Story

-TechDirt: Judge Dumps Stupid Libel Suit Featuring A Man Suing A Third Party For Things A Journalist Said

Tennessee Supreme Court Holds That HIPAA Authorizations Need Not Be Provided in Single-Defendant Medical Malpractice Cases

By Daniel A. Horwitz

In the most recent chapter of the seemingly endless litigation over Tennessee’s medical malpractice statute (known as the “Tennessee Health Care Liability Act,” or “HCLA”), the Tennessee Supreme Court has held that plaintiffs need not include a HIPAA-compliant authorization form in their pre-suit notice packages if only one defendant is being sued.  Thus, in single-defendant medical malpractice cases, the Court’s holding operates to remove one of the many landmines that medical malpractice plaintiffs must navigate in order to get through the courthouse door.

“In Tennessee, people who want to file lawsuits involving the provision of health care services are first required to comply with a variety of procedural requirements that are unique to [medical malpractice] claims.”[1]  In theory, the myriad pre-suit notice requirements contained in the HCLA are intended to “allow[] health care providers to evaluate the merits of potential health care liability claims before a suit is commenced, facilitat[e] communication among the parties, and encourage[e] early settlement negotiations.”[2]  In practice, however, these procedural requirements operate “as a minefield to unwary litigants and frequently result in otherwise-valid claims being dismissed on technical procedural grounds.”[3]  Consequently, in one of his prior publications, this author has characterized the HCLA’s pre-suit notice requirements as “red tape with fangs.”[4]

One pre-suit notice requirement of the HCLA—codified at Tenn. Code Ann. § 29-26-121(a)(2)(E)—compels plaintiffs to provide prospective medical malpractice defendants with “[a] HIPAA compliant medical authorization permitting the provider receiving the notice to obtain complete medical records from each other provider being sent a notice.”[5]  In Bray v. Khuri—a wrongful death case involving a patient who committed suicide while receiving in-patient psychiatric care—Tennessee’s Court of Appeals held that the medical authorization form that the decedent’s surviving spouse had provided in her pre-suit notice package had not been HIPAA-compliant.  As a result, the Court of Appeals held that the plaintiff’s lawsuit had to be dismissed outright before it could even begin.

On appeal to the Tennessee Supreme Court, the Bray plaintiff argued that whether or not her medical authorization form had complied with HIPAA (something that the parties disputed), she was not even required to comply with Tenn. Code Ann. § 29-26-121(a)(2)(E) because there was only a single defendant in the case.  Intuitively, the argument had substantial force.  If the purpose of Tenn. Code Ann. § 29-26-121(a)(2)(E) is to ensure that defendants could “obtain complete medical records from each other provider being sent a notice,” the plaintiff’s argument went, then it is difficult to imagine how or why this requirement would apply when there isn’t any “other provider being sent a notice” at all.[6]

In response, the defendant in Bray argued that compliance with Tenn. Code Ann. § 29-26-121(a)(2)(E) is necessary even when just a single provider is sued because defendants are prohibited from discussing potential lawsuits with their attorneys unless they have received a HIPAA-compliant authorization form.  Specifically, the defendant argued, “HIPAA prohibits the disclosure of a patient’s medical records to counsel for evaluating the merits of a potential claim absent a valid medical authorization.”[7]

Flatly rejecting this argument, the Tennessee Supreme Court noted that “HIPAA regulations allow a healthcare provider to ‘use or disclose protected health information for treatment, payment, or health care operations,’” and that in turn, federal regulations expressly define “health care operations” to include “[c]onducting or arranging for legal services.”[8]  The Court further noted that:

The United States Department of Health and Human Services (“HHS”), in its Frequently Asked Questions (“FAQ”) for Professionals pages of its website, indicates that a healthcare provider may use or disclose protected health information for litigation “whether for judicial or administrative proceedings, . . . or as part of the covered entity’s health care operations.”  HHS further recognizes that “[i]n most cases, the covered entity will share protected health information for litigation purposes with its lawyer, who is either a workforce member or a business associate.” HIPAA regulations define a “business associate” to include a person who provides legal services to or for a healthcare provider.[9]

Thus, the Tennessee Supreme Court concluded that “HIPAA does not require [defendants] to obtain a medical authorization to use a patient’s medical records in [their own] possession,” and that such records may be used to “consult with counsel to evaluate the merits of a potential claim” even without authorization from a patient.[10]  As such, because neither the text nor the purpose of Tenn. Code Ann. § 29-26-121(a)(2)(E) indicated that it applied to medical malpractice cases involving just a single defendant, the Tennessee Supreme Court reversed the lower court’s ruling and permitted the plaintiff’s lawsuit to move forward.

The Court’s sensible and straightforward ruling in Bray represents a small victory for a narrow subset of medical malpractice plaintiffs in Tennessee.  As a whole, however, the larger problems with the statute persist.  It has been more than a hundred years since Roscoe Pound, the preeminent former Dean of Harvard Law School, condemned the “sporting theory of justice” that was in vogue during the 19th and early 20th centuries, when lawsuits turned on whether “the rules of the game been carried out strictly” rather than on what “substantive law and justice require.”[11]  Since then, the legal system has evolved to reflect the broader understanding that “dismissals based on procedural grounds . . . run counter to the judicial system’s general objective of disposing of cases on the merits.”[12]  Regrettably, however, in the realm of medical malpractice liability, the “sporting theory” of justice has largely returned to prominence in Tennessee.

Read the Tennessee Supreme Court’s unanimous decision in Bray v. Khuri, authored by Justice Sharon Lee, here.

Like ScotBlog?  Join our email list or contact us here, or follow along on Twitter @Scot_Blog and facebook at https://www.facebook.com/scotblog.org

[1] Daniel A. Horwitz, All claims related to the provision of health care are now governed by the Health Care Liability Act, holds Tennessee Supreme Court, ScotBlog (Dec. 7, 2015), available at  https://scotblog.org/2015/12/all-claims-related-to-the-provision-of-health-care-are-now-governed-by-the-health-care-liability-act-holds-tennessee-supreme-court/.

[2] Stevens ex rel. Stevens v. Hickman Cmty. Health Care Servs., Inc., 418 S.W.3d 547, 564 (Tenn. 2013).

[3] Id.

[4] See Daniel A. Horwitz, The Law of Unintended Consequences:  Avoiding the Health Care Liability Act Booby Trap, Nashville Bar Journal (June 2015) (feature article), available at http://issuu.com/nbanikki/docs/nbjjune15/17.

[5] Tenn. Code Ann. § 29-26-121(a)(2)(E).

[6] Tenn. Code Ann. § 29-26-121(a)(2)(E) (emphasis added).

[7] Bray v. Khuri, __ S.W. 3d __, __ (2017), No. W2015-00397-SC-R11-CV (July 5, 2017), available at http://www.tba.org/sites/default/files/brayd_070517.pdf?fid=16e9ebec9f8d4e9e754ea118283ffe7c1c180148.

[8] Id. (citing 45 C.F.R. § 164.506(a); 45 C.F.R. § 164.506(c)(1)).

[9] Id. (citing HIPAA for Professionals FAQ 705,HHS (Jan. 7, 2005), https://www.hhs.gov/hipaa/for-professionals/faq/705/may-a-covered-entity-in-a-legalproceeding-use-protected-health-information/index.html).

[10] Id.

[11] See Daniel A. Horwitz, The Law of Unintended Consequences:  Avoiding the Health Care Liability Act Booby Trap 8, available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2577156 (citing Roscoe Pound, The Causes of Popular Dissatisfaction with the Administration of Justice, Address at American Bar Association Convention (Aug. 26, 1906), available at 35 F.R.D. 273, 282 (1964)).

[12] Id. (quoting Bowers, 2003 WL 22994302 at *5; see also Childress, 816 S.W.2d at 316 (noting that “it is the general rule that courts are reluctant to give effect to rules of procedure . . . which prevent a litigant from having a claim adjudicated upon its merits.”)).