Tennessee Court Finds Law Permitting Ex Parte Communications with Doctors Unconstitutional

Tennessee Code Section 29-26-121(f) permits defendants in health care liability actions to seek an order from the court allowing them to have ex parte communications with a plaintiff’s health care providers. Under the terms of the statute, if a defendant seeking such an order meets all of the necessary statutory requirements, a court is essentially required to issue such an order. In a recent case before the Sixth Circuit Court in Tennessee, a plaintiff argued that an order allowing ex parte communications should be denied because Section 29-26-121(f) is an unconstitutional violation of the separation of powers.

In Hammonds v. HCA Health Services of Tennessee, HCA sought a qualified protective order to allow it to have ex parte communications with Ms. Hammonds’ medical providers. Ms. Hammonds objected to the issuance of such an order, arguing that the statute permitting such orders was unconstitutional. In Tennessee, the courts have previously found that there exists an implied covenant of confidentiality between treating physicians and their patients. This confidentiality arises out of the public concern for the protection of private medical information. When doctors give up confidential information, even informally, they breach this covenant of confidentiality. Accordingly, in health care lawsuits, the courts have held that the only appropriate means of discovering information from physicians is through acceptable methods of discovery under Rule 26.

In response to these cases, the Tennessee General Assembly passed Section 29-26-121(f), which allows defendants to obtain health care information about plaintiffs through informal ex parte interviews rather than through formal discovery. The statute provides that petitions for ex parte interviews must be granted if the defendant provides certain privacy protections, and the plaintiff cannot show that the health care provider at issue does not possess any relevant information.

Under Tennessee’s constitution, the legislature may not limit or overstep the judiciary’s authority under the separation of powers clause. While legislatures have the power to set procedural rules for courts and to determine public policy, they cannot encroach on the judiciary. Here, the court found that 29-26-121(f) violated the separation of powers doctrine because it attempted to directly overrule the implied covenant of confidentiality that the Tennessee courts found between physicians and patients. While the court had created a framework to protect patient health information, the statute directly conflicts with that framework and encroaches on the court’s power. The court further noted that while the legislature was free to attempt to repeal the notion of a covenant of confidentiality between physicians and patients, in the absence of such a repeal, it was not free to dictate which methods parties could use in court to try to circumvent such confidentiality.

This case raises significant questions as to what is likely to happen to the use of orders to obtain ex parte communications with physicians in health care liability actions. It is likely that this decision will be appealed and ultimately reviewed by several appellate courts before we know if the holding will stand. In the meantime, plaintiffs who are subjected to efforts by defendants to obtain confidential information from their physicians may wish to argue that such ex parte orders are no longer constitutional in Tennessee. For more information on health care liability claims in general, or how to protect your sensitive medical information, consult knowledgeable Tennessee personal injury attorney Eric Beasley. Contact the Law Office of Eric Beasley today at 615-859-2223.

Related Blog Posts:

Notification Requirements for Medical Malpractice Claims In Tennessee, Tennessee Personal Injury Blog, October 19, 2016

Waiver of Medical Malpractice Claims Against Tennessee State Employees, Tennessee Personal Injury Blog, July 21, 2016

Sixth Circuit Remands Tennessee Medical Malpractice Claim for Widow of Veteran, Tennessee Personal Injury Blog, March 3, 2016