Althea Dean-Hayslett, as Surviving Widow of Jerry Hayslett v. Methodist Healthcare

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

November 12, 2014 Session

ALETHEA DEAN-HAYSLETT, AS SURVIVING WIDOW OF JERRY

HAYSLETT v. METHODIST HEALTHCARE, ET AL.

Appeal from the Circuit Court for Shelby County

No. CT00475412 Robert L. Childers, Judge

No. W2014-00625-COA-R10-CV - Filed January 20, 2015

This is a healthcare liability action. The trial court granted Defendants’ joint motion for a qualified

protective order pursuant to Tennessee Code Annotated § 29-26-121(f)(1), but added several

conditions not specifically provided in the statute. The trial court denied Defendants’ joint motion

for permission to seek an interlocutory appeal, and we granted Defendants’ motion for an

extraordinary appeal to this Court under Rule 10 of the Tennessee Rules of Appellate Procedure.

We reverse in part, affirm in part, and remand for further proceedings.

Tenn. R. App. P. 10 Extraordinary Appeal; Judgment of the Circuit Court Reversed

in Part; Affirmed in Part; and Remanded

A RNOLD B. G OLDIN, J., delivered the opinion of the Court, in which B RANDON O.

G IBSON, J. joined. J. S TEVEN S TAFFORD P.J.,W.S. filed a concurring opinion.

Mason Wilson and Julia Kavanagh, Memphis, Tennessee, for the appellant, Methodist Healthcare-

Memphis Hospitals.

Katherine M. Anderson and W. Bradley Gilmer, Memphis, Tennessee, for the appellant, Mohamad

Moughrabieh, M.D.

Mimi Phillips, Memphis, Tennessee, for the appellee, Alethea Dean-Hayslett.

OPINION

The is an extraordinary appeal pursuant to Rule 10 of the Tennessee Rules of

Appellate Procedure. In November 2012, Plaintiff/Appellee Alethea Dean-Hayslett (“Mrs.

Hayslett”) filed a complaint for damages for wrongful death, healthcare liability, and

ordinary negligence in the Circuit Court for Shelby County.1 In her complaint, Mrs. Hayslett

asserted that Defendants, Methodist Healthcare d/b/a Methodist Hospital North, Methodist

Healthcare Memphis Hospitals (collectively, “Methodist Hospital”) and Mohamad

Moughrabieh, M. D. (“Dr. Moughrabieh”; collectively, “Defendants”), committed acts of

ordinary negligence and professional negligence that proximately caused the death of her

husband, Jerry Hayslett (“Mr. Hayslett”), in July 2011. As required by Tennessee Code

Annotated § 29-26-121(b), Mrs. Hayslett stated in her complaint that she had complied with

the pre-suit notice requirements contained in section 29-26-121(a). She prayed for wrongful

death compensatory damages in the amount of $2,000,000.00 and damages for loss of

consortium on behalf of herself and her children in the total amount of $4,000,000.00.

Defendants filed motions to dismiss or, in the alternative, for summary judgment in

December 2012. In their motions, Defendants asserted that Mrs. Hayslett failed to comply

with the mandatory requirements of section 29-26-121 because she failed to provide a

medical authorization sufficient to comply with the Heath Insurance Portability and

Accountability Act (“HIPAA”) as mandated by section 29-26-121(a)(1)(E). Defendants

asserted that Mrs. Hayslett’s medical authorization authorized them to release Mr. Hayslett’s

medical records, but not to obtain them from other parties. Defendants also moved for

dismissal of Mrs. Hayslett’s complaint as time-barred by the statute of limitations where,

because her medical authorization failed to fulfill the requirements of subsection 121(a), the

extension to the limitations period granted by subsection 121(c) did not operate to extend the

limitations period in this case. Mrs. Hayslett responded in opposition to Defendants’

motions, and the trial court heard the motions in March 2013. By order entered March 27,

2013, the trial court denied Defendants’ motions, finding that Mrs. Hayslett’s medical

authorizations were HIPAA-compliant. Pursuant to these authorizations, Defendants were

authorized to release to each other all of Mr. Hayslett’s relevant medical records, which

consisted only of records generated by Methodist Hospital. Defendants answered in April

2013, generally denying allegations of negligence and asserting several affirmative defenses,

including the statute of limitations with respect to Mrs. Hayslett’s claims for ordinary

negligence and loss of consortium.

In May 2013, Defendants filed a joint motion for a qualified protective order pursuant

1

Mrs. Hayslett amended her complaint in March 2013 to designate the Methodist Defendant as

“Methodist Healthcare Memphis Hospitals d/b/a Methodist Hospital North.” She voluntarily nonsuited

Methodist Healthcare to the extent that it was a legal entity distinct from Methodist Healthcare Memphis

Hospitals. On March 27, 2013, the trial court entered an order dismissing Methodist Healthcare, a Tennessee

Corporation. The remaining Defendants are Methodist Healthcare Memphis Hospitals, a Tennessee

Corporation, d/b/a Methodist Hospital North and Mohamad Moughrabieh, M.D.

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to Tennessee Code Annotated § 29-26-121. In their motion, Defendants sought to conduct

ex parte interviews with five of Mr. Hayslett’s treating physicians outside the presence of

Mrs. Hayslett and her counsel. In her response, Mrs. Hayslett opposed the motion on the

grounds that section 29-26-121(f) is unconstitutional where it impairs the contractual

obligation of confidentiality in violation of Article I, Section 20 of the Tennessee

Constitution; that it violates and is preempted by HIPAA; and that the section impermissibly

restricts the trial court’s discretion when drafting the qualified protective order. The State

of Tennessee filed a motion to intervene to defend the constitutionality of the section, and

the trial court granted the State’s motion in August 2013.

Following supplemental briefing by the parties, the trial court heard Defendants’

motion for a qualified protective order in May 2013. By order entered November 15, 2013,

the trial court determined that HIPAA does not preempt Tennessee Code Annotated § 29-26-

121(f) and that the section does not violate Article 1, Section 20 of the Tennessee

Constitution. The trial court also determined that section 29-26-121(f) does not violate the

separation of powers doctrine by improperly infringing upon the discretion of the judiciary

or by exceeding the boundaries of the legislature’s authority. The trial court determined that

section 29-26-121(f)(1) is a “procedural requirement” and a “proper exercise of the

legislature’s police power.” The trial court further determined that, pursuant to Rule 26.02

of the Tennessee Rules of Civil Procedure, it retained the courts’ broad discretionary powers

to fashion a discovery order containing conditions to address a plaintiff’s concerns.

In November 2013, the trial court accordingly granted Defendants’ motion for a

qualified protective order permitting Defendants to conduct ex parte interviews with five of

Mr. Hayslett’s treating physicians. The trial court imposed nine conditions on the order,

however, including:

1. Participation in the ex parte interview by the treating physicians/caregivers

is strictly voluntary. Nothing in this Order is intended to imply that the treating

physicians/caregivers are required to participate in the ex parte interview.

2. All Protected Health Information obtained during the ex parte interview

shall be used only in conjunction with this particular lawsuit and shall not be

disseminated to any third parties other than the defense attorneys’ staff

members, vendors, clients, and experts.

3. All Protected Health Information obtained during the ex parte interview

shall be destroyed at the conclusion of this lawsuit.

4. Defense attorneys may conduct no ex parte interview with treating

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physicians/caregivers until February 1, 2014.

5. A court reporter must be present at the ex parte interview and record all

questions and answers during the interview.

6. The answers during the interview must be given under oath.

7. Only one attorney for each named defendant may be present for the

interview.

8. No defendant party may be present during the interview.

9. The interview transcripts shall be filed under seal. With permission from the

Court, the plaintiff may access the transcripts for the purpose of determining

whether a violation of privacy under HIPAA occurred during the interview.

Defendants and Mrs. Hayslett filed motions for permission to seek an interlocutory

appeal pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure. Following a

hearing on January 24, 2014, the trial court denied the parties’ motions. On February 27,

2014, the trial court entered an order modifying the conditions of the qualified protective

order to provide:

1. Participation in the ex parte interview by the treating physicians/caregivers

is strictly voluntary. Nothing in this Order is intended to imply that the treating

physicians/caregivers are required to participate in the ex parte interview.

2. Relevant Protected Health Information may be elicited directly or indirectly

from a healthcare provider during the ex parte interview. Defendants should

not attempt to elicit or discuss Protected Health Information which is not

relevant to the issues in this lawsuit. This does not restrict the Defendants or

their attorneys from discussing non-substantive matters unrelated to the

patient’s Protected Health Information.

3. All Protected Health Information obtained during the ex parte interview

shall be used only in conjunction with this particular lawsuit and shall not be

disseminated to any third parties other than the defense attorneys’ staff

members, vendors, clients, and experts.

4. All Protected Health Information obtained during the ex parte interview

shall be destroyed at the conclusion of this lawsuit.

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5. Defense attorneys may conduct no ex parte interview with treating

physicians/caregivers until March 1, 2014.

6. A court reporter must be present at the ex parte interview and record all

questions and answers during the interview.

7. The answers during the interview must be given under oath.

8. The interview transcript shall be filed under seal. With permission from the

Court and after showing good cause, the plaintiff may access the transcripts for

the purpose of determining whether a violation of privacy under HIPAA

occurred during the interview.2

Defendants filed a joint application for an extraordinary appeal to this Court pursuant

to Rule 10 of the Tennessee Rules of Appellate Procedure. We granted limited review by

order entered May 13, 2014.

Issue Presented

The issue for which we granted review in this matter is:

Whether the trial judge has the authority to add the following conditions to a

Qualified Protective Order granted pursuant to Tennessee Code Annotated §

29-26-121(f):

1. A court reporter must be present at the ex-parte interview and

record all questions and answers during the ex-parte interview;

2. All answers during the interview must be under oath;

3. The interview transcript shall be filed under seal. With

permission of the Court, and after showing good cause, Plaintiff

may access the transcript for the purpose of determining whether

a violation of privacy under HIPAA occurred during the

interview; and,

4. Relevant Protected Health Information may be elicited

directly or indirectly from a healthcare provider during the ex

2

Conditions re-numbered from the trial court’s order for clarity.

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parte interview. Defendants should not attempt to elicit or

discuss Protected Health Information which is not relevant to the

issues in this lawsuit. This does not restrict the Defendants or

their attorneys from discussing non-substantive matters

unrelated to the patient’s Protected Health Information.

Standard of Review

Mrs. Hayslett submits that, although the trial court based its rationale for imposing

conditions on the qualified protective order in this case on its interpretation of section 29-26-

121(f)(1), the issue presented by this appeal is a discovery matter and the abuse of discretion

standard of review accordingly is applicable. Defendants, on the other hand, contend that

the issue is one of statutory construction and that the applicable standard of review

accordingly is de novo, with no presumption of correctness afforded to the determination of

the trial court. We agree with Defendants that this appeal requires us to determine, as an

initial matter, whether, under section 29-26-121(f)(1), the trial court had the authority to

restrict or condition the qualified protective order as it did in this case. Construction of a

statute is a question of law. Thurmond v. Mid-Cumberland Infectious Disease Consultants,

PLC, 433 S.W.3d 512, 516 (Tenn. 2014). Our review accordingly is de novo, with no

presumption of correctness afforded to the decision of the trial court. Id. at 517.

Discussion

It is well-settled that our duty when construing a statute is to ascertain and effectuate

the intent and purpose of the General Assembly, neither broadening the statute beyond its

intended scope nor unduly restricting it. Id.; Commissioners of Powell-Clinch Utility Dist.

v. Utility Mgmt. Review Bd., 427 S.W.3d 375, 384 (Tenn. Ct. App. 2013) (citation omitted).

We interpret a statutory section reasonably in light of the context of the entire statute,

construing it according to the natural, ordinary meaning of the language chosen by the

legislature and in a “manner which avoids statutory conflict and provides for harmonious

operation of the laws.” Baker v. State, 417 S.W.3d 428, 433 (Tenn. 2013).

We begin our analysis with the words used in the statute and “[i]f the statutory

language is clear and unambiguous, we apply its plain meaning, understood in its normal and

accepted usage, without a forced interpretation[.]” Id. (citation omitted). If the statutory

language is ambiguous, or if we must resolve a conflict between provisions, we may take

other matters into consideration, including relevant historical facts, the entire statutory

scheme, the legislative history, earlier versions of the statute, and public policy. Lee Med.,

Inc. v. Beecher, 312 S.W.3d 515, 527-28 (Tenn. 2010). Such “non-codified external

sources[,]” however, “cannot provide a basis for departing from clear codified statutory

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provisions[,]” regardless of “how illuminating [they] may be[.]” Id. at 528. Although we

presume every word or phrase has effect and that the General Assembly chose each word

purposely and deliberately, we cannot base our construction on any single word. Id. at 527

(citations omitted). We also presume that the legislators were aware of the existing law and

the courts’ construction of prior statutes, and that they “‘did not intend an absurdity’” when

enacting the statute. Id. (quoting Fletcher v. State, 951 S.W.2d 378, 382 (Tenn. 1997)).

Because the current action was commenced after July 1, 2012, and prior to July 1,

2013, the 2012 version of Tennessee Code Annotated § 29-26-121(f) is applicable to this

lawsuit.3 Section 29-26-121(f) as it existed in November 2012 provided:

(1) Upon the filing of any “healthcare liability action,” as defined in §

29-26-101, the named defendant or defendants may petition the court for a

qualified protective order allowing the defendant or defendants and their

attorneys the right to obtain protected health information during interviews,

outside the presence of claimant or claimant’s counsel, with the relevant

patient’s treating “healthcare providers,” as defined by § 29-26-101. Such

petition shall be granted under the following conditions:

(A) The petition must identify the treating healthcare provider or

providers for whom the defendant or defendants seek a qualified

protective order to conduct an interview;

(B) The claimant may file an objection seeking to limit or prohibit the

defendant or defendants or the defendant’s or defendants’ counsel from

conducting the interviews, which may be granted only upon good cause

shown that a treating healthcare provider does not possess relevant

information as defined by the Tennessee Rules of Civil Procedure; and

3

Section 29-29-121(f)(1)(C) was amended in 2013 to provide:

(C)(i) The qualified protective order shall expressly limit the dissemination of any protected

health information to the litigation pending before the court and require the defendant or

defendants who conducted the interview to return to the healthcare provider or destroy any

protected health information obtained in the course of any such interview, including all

copies, at the end of the litigation;

(ii) The qualified protective order shall expressly provide that participation in any such

interview by a treating healthcare provider is voluntary.

Tenn. Code Ann. § 29-26-121(f)(1)(C) (Supp. 2014).

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(C) The qualified protective order shall expressly limit the

dissemination of any protected health information to the litigation

pending before the court.

(2) Any disclosure of protected health information by a healthcare provider in

response to a court order under this section shall be deemed a permissible

disclosure under Tennessee law, any Tennessee statute or rule of common law

notwithstanding.

(3) Nothing in this part shall be construed as restricting in any way the right of

a defendant or defendant’s counsel from conducting interviews outside the

presence of claimant or claimant’s counsel with the defendant’s own present

or former employees, partners, or owners concerning a healthcare liability

action.

Tenn. Code Ann. § 29-26-121(f) (2012).

As noted above, the issue in this case is the extent to which a trial court may limit or

restrict ex parte interviews in a qualified protective order granted pursuant to the section.

In light of the well-settled principle that trial courts have broad discretionary authority to

control the proceedings in their courts, Barnett v. Tenn. Orthopaedic Alliance, 391 S.W.3d

74, 79 (Tenn. Ct. App. 2012), the section’s mandatory provision that a defendant’s motion

for a qualified protective order “shall be granted” subject to the conditions and limitations

expressly stated in the section, and the section’s silence with respect to whether a trial court

may impose additional restrictions or conditions, we find the section is ambiguous with

respect to the extent of the trial court’s authority to impose limitations or restrictions when

granting orders under the section. Accordingly, we first turn to the “non-codified external

sources” noted above to determine the legislative intent of section 29-26-121(f)(1) with

respect to the scope of the trial court’s authority when fashioning a qualified protective order

under it.

Historical Background

Section 29-26-121(f), which became effective in July 2012, is the legislature’s

response to the courts’ increasing protection of confidential healthcare information. In turn,

the judicial emphasis on the implied contract of confidentiality between a patient and his

healthcare providers reflects the courts’ interpretation of statutes enacted by the legislature

from 1997 to 2001, statutes that the Tennessee Supreme Court construed as “indicative of

the General Assembly’s desire to keep confidential a patient’s medical records and

identifying information[.]” Alsip v. Johnson City Med. Ctr., 197 S.W.3d 722, 726 (Tenn.

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2006) (citing Givens v. Mullikin, 75 S.W.3d 383, 407 (Tenn. 2002) (citing Tenn. Code Ann.

§§ 63-2-101(b)(1) (1997), 68-11-1502 (2001), 68-11-1503 (2001))). As early as 1965, the

supreme court recognized the possibility of an implied contract of confidentiality between

a patient and his physician. Quarles v. Sutherland, 389 S.W.2d 249, 252 (Tenn. 1965). In

Quarles, the court declined to recognize a physician-patient privilege in contravention of the

common law where the “Legislature ha[d] not seen fit to act on the matter[.]” Id. at 251.

The Quarles court noted however, “that physicians and surgeons are required by the ethics

of their profession to preserve the secrets of their patients which have been communicated

to them or learned from symptoms or examination of other bodily conditions[,]” and

recognized a “possible sounding of [a] lawsuit . . . under allegations that there was an implied

contract between the parties[,]” a patient and his physician. Id. at 251-52.

Subsequent to the supreme court’s observations in Quarles, in the 1990s the General

Assembly enacted a number of statutes expressly requiring healthcare providers to keep their

patients’ medical records and identifying information confidential. In 1996, the General

Assembly amended Tennessee Code Annotated § 63-2-101 to provide that “medical records

shall not constitute public records, and nothing contained in [the] part shall be deemed to

impair any privilege of confidentiality conferred by law on patients, their personal

representatives or heirs.” Tenn. Code Ann. § 63-2-101 (b)(1) (1997); 1996 Tenn. Pub. Acts

862. The 1996 amendment further provided:

Except for any statutorily required reporting to health or government

authorities and except for access by an interested third-party payer (or their

designee) for the purpose of utilization reviews, case management, peer

reviews or other administrative functions, the name and address and other

identifying information of a patient shall not be divulged. The name and

address and other identifying information shall not be sold for any purpose.

Any violation of this provision shall be an invasion of the patient’s right to

privacy.

Id.4 In 1996, the General Assembly also enacted the Patient’s Privacy Protection Act. Tenn.

4

The Tennessee Code currently provides:

(1)(A) Except as otherwise provided by law, such patient’s medical records shall not

constitute public records, and nothing contained in this part shall be deemed to impair any

privilege of confidentiality conferred by law on patients, their personal representatives or

heirs. Nothing in this subsection (b) shall impair or abridge the right of the patient or the

patient’s authorized representative to obtain copies of the patient’s hospital records in the

manner provided in § 68-11-304. Nothing in this subsection (b) shall be construed as

prohibiting a patient’s medical records from being subpoenaed by a court of competent

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Code Ann. § 68-11-1501, et. seq.; 1996 Tenn. Pub. Acts 873. The act as currently codified

provides, in relevant part, that patients have “the expectation of and right to privacy for” the

care they receive at licensed facilities and in the confidentiality of their identifying

information. Tenn. Code Ann. §§ 68-11-1502 & 1503(a) (2013). It also provides a right to

a private civil action for damages for invasion of privacy for violations of the act. Tenn.

Code Ann. § 68-11-1504 (2013).5

jurisdiction.

(B) As used in subdivision (b)(1)(A), “medical records” includes any list of patients that is

compiled or maintained by or for such patient’s health care provider.

(2) Except for any statutorily required reporting to health or government authorities and

except for access by an interested third-party payer or their designee for the purpose of

utilization review, case management, peer reviews or other administrative functions, the

name and address and other identifying information of a patient shall not be divulged. The

name and address and other identifying information shall not be sold for any purpose. Any

violation of this subdivision (b)(2) shall be an invasion of the patient’s right to privacy.

(3) Except as otherwise authorized in this section, title 38, chapter 7, part 1, title 68, chapter

11, part 3 and title 68, chapter 11, part 15, a health care provider shall have in place a policy

to protect the dignity of a patient, even if the patient dies or becomes incapacitated, by

limiting the use and disclosure of medical records, images, videos or pictures intended to

be used for appropriate medical educational purposes, even if the patient’s information is

de-identified. The policy shall include when and to whom it is appropriate to use and

disclose the patient’s information, and when a written authorization from the patient or their

authorized representative is required, whenever it is reasonably possible to obtain it, prior

to use or disclosure. If the patient becomes incapacitated or dies, and there is no legal

representative for the patient, the patient’s next of kin will be considered to be an authorized

representative for the patient. When required the written authorization will include the core

elements required by 45 CFR Parts 160 and 164, “Standards for Privacy of Individually

Identifiable Health Information.”

Tenn. Code Ann. § 63-2-101(b).

5

Current Tennessee Code Annotated § 68-11-1502 provides:

Every patient entering and receiving care at a health care facility licensed by the board for

licensing health care facilities has the expectation of and right to privacy for care received

at such facility.

Current Tennessee Code Annotated § 68-11-1503(a)(1) provides that a patient’s name, address, and other

identifying information shall not be divulged other than as excepted by the statute. Subsection (a)(2) requires

healthcare providers to “have in place a policy to protect the dignity of a patient,” and subsection (c) provides

that violation of the section shall be considered “an invasion of the patient’s right to privacy.”

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Notwithstanding physicians’ well-established ethical obligations to keep their

patients’ confidences and to maintain their patients’ privacy expectations, ex parte interviews

of healthcare providers nevertheless were recognized “as a time-honored method of ‘informal

discovery.’” Angela T. Burnett and D’Andrea J. Morning, HIPAA and Ex Parte Interviews -

- The Beginning of the End?, 1 J. Health & Life Sci. L. 73, 77 (April 2008). As the statutory

protection of privacy expectations in the healthcare context evolved, however, accompanied

by the courts’ recognition of an implied covenant of confidentiality between patients and

their healthcare providers, this informal investigatory practice increasingly was called into

question by the courts. Indeed, scholars have observed that some courts questioned the

practice of using ex parte interviews to illicit healthcare information “[l]ong before

HIPAA[.]” Id. at 79.

In a federal case decided the same year as Quarles, in 1965 the court in Hammonds

v. Aetna Casualty & Surety Company expressly recognized an implied covenant of

confidentiality in the physician-patient contract and held that a physician’s breach of the

“warranty of silence” constituted a breach of his contractual obligations. Hammonds v. Aetna

Cas. & Sur. Co., 243 F. Supp. 793, 801 (N.D. Ohio 1965). The Hammonds court opined:

Any time a doctor undertakes the treatment of a patient, and the consensual

relationship of physician and patient is established, two jural obligations (of

significance here) are simultaneously assumed by the doctor. Doctor and

patient enter into a simple contract, the patient hoping that he will be cured and

the doctor optimistically assuming that he will be compensated. As an implied

condition of that contract, this Court is of the opinion that the doctor warrants

that any confidential information gained through the relationship will not be

released without the patient’s permission. Almost every member of the public

is aware of the promise of discretion contained in the Hippocratic Oath, and

every patient has a right to rely upon this warranty of silence. The promise of

secrecy is as much an express warranty as the advertisement of a commercial

entrepreneur. Consequently, when a doctor breaches his duty of secrecy, he

is in violation of part of his obligations under the contract.

Id. Noting our “adversary judicial system, with its intensity heightened by the continuing

friction between insurance companies and claimants,” the Hammonds court questioned the

propriety of a “doctor discussing the case of his patient-plaintiff with the lawyer for the

defending insurance company[,]” and concluded that “preservation of the patient’s privacy

is no mere ethical duty[,]” but “a legal duty as well.” Id. at 798-802. It held that the

“unauthorized revelation of medical secrets, or any confidential communication given in the

course of treatment, is tortious conduct which may be the basis for an action in damages.”

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Id. at 802.

In State ex rel. Kitzmiller v. Henning, the West Virginia Supreme Court of Appeals

held that, although a patient implicitly consents to the release of medical information with

respect to the condition at issue in the lawsuit, that consent is limited. Kitzmiller v. Henning,

437 S.E.2d 452, 455 (W. VA. 1993). The Kitzmiller court opined that the patient “does not

consent, simply by filing suit, to his physician’s discussing his medical confidences with third

parties outside court-authorized discovery methods, nor does he consent to his physician’s

discussing the patient’s confidences in an ex parte conference with the patient’s adversary.”

Id. (citing see, Fields v. McNamara, 189 Colo. 284, 540 P.2d 327 (Sup. Ct.1975); Petrillo

v. Syntex Laboratories, Inc., 148 Ill. App.3d 581, 102 Ill. Dec. 172, 499 N.E.2d 952, 959 (1

Dist.1986); Crist v. Moffatt, 389 S.E.2d 41, 46 (N.C. 1990); Ritter v. Rush–Presbyterian–St.

Luke’s, 177 Ill. App.3d 313, 126 Ill. Dec. 642, 532 N.E.2d 327, 330 (1 Dist.1988); Karsten

v. McCray, 157 Ill. App.3d 1, 109 Ill. Dec. 364, 509 N.E.2d 1376, 1383–84 (2 Dist.1987);

Jordan v. Sinai Hosp. of Detroit, Inc., 171 Mich. App. 328, 429 N.W.2d 891, 899 (1988);

Wenninger v. Muesing, 307 Minn. 405, 240 N.W.2d 333, 335 (Sup. Ct. 1976); Jaap v.

District Court of Eighth Judicial Dist., Mont., 191 Mont. 319, 623 P.2d 1389, 1391 (1981)).

It held that “[e]x parte interviews are prohibited because they pose the danger of disclosing

irrelevant medical information that may compromise the confidential nature of the

doctor-patient relationship without advancing any legitimate object of discovery[,]” and that

discovery could be obtained only as permitted by the West Virginia Rules of Civil Procedure.

Id.

In 2002, the Tennessee Supreme Court observed in Givens v. Mullikin ex rel. Estate

of McElwaney that, through acts of the General Assembly, “patients and physicians now

clearly expect that the physician will keep the patient’s information confidential, and this

expectation arises at the time that the patient seeks treatment.” Givens v. Mullikin ex rel.

Estate of McElwaney, 75 S.W.3d 383, 407 (Tenn. 2002). The Givens court observed that it

had recognized in Quarles the possibility that “an implied contract of confidentiality arose

between a physician and a patient . . . when a patient compensates a physician in return for

medical treatment.” Id. Quoting Hammonds with approval, the Givens court explicitly

recognized an implied covenant of confidentiality in a “contract of treatment for payment”

between a patient and his physician. Id. Most significantly, the Givens court held that when

a physician divulges confidential information in “informal conversations with others”

without the patient’s consent, the physician breaches the implied covenant of confidentiality.

Id. at 409.

Observing that a physician’s duty of confidentiality is subject to several statutory

exceptions, the court noted that “no exception permits disclosure of medical information in

private conversations without the patient’s consent.” Id. n.12. The Givens court accordingly

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held that the implied covenant of confidentiality did not contain an “informal interview”

exception. Id. It also opined that dicta in Alessio v. Crook, 633 S.W.2d 770, 780 (Tenn. Ct.

App. 1982), permitting informal interviews of physicians without the consent of the patient,

did not accurately reflect the law after enactment of Tennessee Code Annotated § 63-2-101

and the Patient’s Right to Privacy Act. Id. n.13. The court noted, however, that, “whatever

the terms of this implied covenant of confidentiality may be, a physician cannot withhold

such information in the face of a subpoena or other request cloaked with the authority of the

court” and that such a contract “[u]ndoubtedly . . . would be contrary to public policy as

expressed in the rules governing pretrial discovery and in the relevant medical confidentiality

statutes.” Id. at 408 (citing see Tenn. Code Ann. § 63–2–101(b)(1) (1997); Tenn. Code Ann.

§ 68–11–304(a)(1) (2001); Tenn. Code Ann. § 68–11–1505 (2001)).6

Four years later, the supreme court clarified its decision in Givens and struck down

a trial court’s order permitting ex parte communication between a decedent’s non-party

treating physician and counsel for the defendant medical center in a medical malpractice

action filed by decedent’s mother and surviving children. Alsip v. Johnson City Med. Ctr.,

197 S.W.3d 722, 723-24 (Tenn. 2006). The Alsip court “announce[d] that such ex parte

communications violate[d] the implied covenant of confidentiality that exists between

physicians and patients[.]” Id. Noting that the implied covenant of confidentiality is not

enforceable “when it offends public policy” and that it “can be voided when its enforcement

would compromise the needs of society”7 and “for the purpose of discovery” under Rule 26

of the Tennessee Rules of Civil Procedure, the Alsip court held that “the formal methods of

discovery expressly authorized by Rule 26” were sufficient to reveal all relevant medical

information to the defendants. Id. at 728. It opined that public policy concerns did not

require “voidance” of the implied covenant of confidentiality and that “ex parte

communications between the plaintiff’s non-party physicians and defense attorneys [were]

not allowed in the State of Tennessee.” Id. at 724. Balancing “society’s legitimate desire for

medical confidentiality against medical malpractice defendants’ need for full disclosure of

6

The court additionally noted that the statutes did not alter the fact that Tennessee common law does

not recognize a physician-patient testimonial privilege. Id. at n.10.

7

The supreme court observed that the implied covenant of confidentiality “is voided” in

circumstances where a patient’s illness may present a foreseeable risk to others; where state law requires

reporting of wounds or injuries resulting from deadly weapons or violence; in cases of suspected child abuse

or sexual assault; or in instance of venereal disease in minors age thirteen and under. Alsip, 197 S.W.3d at

726 (citations omitted). We note that Tennessee Code Annotated § 38-1-101 was amended in 2012 to

provide that the reporting provisions contained in subsection (a) of the section do not apply if the person

seeking or receiving treatment is 18 years of age or older; objects to the release of identifying information

to law enforcement officials; and is a victim of sexual assault or domestic abuse, unless the injuries are

considered to be life threatening or inflicted by strangulation or a deadly weapon. Tenn. Code Ann. 38-1-

101(d).

-13-

plaintiffs’ relevant health information[,]” the Alsip court concluded that “[n]either the law

nor public policy require[d] the plaintiff to bear the risk of disclosure of irrelevant

confidential medical information in informal, private interviews with opposing counsel and

non-party doctors.” Id. at 727, 730. The court “agree[d] with numerous ‘[o]ther courts [that]

concluded that formal discovery procedures enable defendants to reach all relevant

information while simultaneously protecting the patient’s privacy by ensuring supervision

over the discovery process[.]’” Id. at 727 (quoting Crist v. Moffatt, 389 S.E.2d 41, 46 (N.C.

1990) (citing Petrillo v. Syntex Lab., Inc., 499 N.E.2d 952, 963 (Ill. App. 1986); Roosevelt

Hotel Ltd. P’ship v. Sweeney, 394 N.W.2d 353, 356 (Iowa 1986); Anker v. Brodnitz, 98

Misc.2d 148, 413 N.Y.S.2d 582, 585-86 (N. Y. Sup. Ct. 1979))). The supreme court

extended its holdings in Givens and Alsip to actions filed pursuant to the Tennessee Workers’

Compensation Act in Overstreet v. TRW Commercial Steering Division, et al., 256 S.W.3d

626 (Tenn. 2008).

In 2008, the General Assembly amended the medical malpractice act contained in

Chapter 26 of Title 29 by adding sections 121 and 122, which became applicable to all

medical malpractice actions filed on or after October 1, 2008. Tenn. Code Ann. §§ 29-26-

121 and 29-26-122 (Supp. 2011); 2008 Tenn. Pub. Acts. 919. Sub-section 29-26-121(f),

which provides for qualified protective orders allowing defendants and their counsel to

conduct ex parte interviews with plaintiffs’ healthcare providers, became effective on July

1, 2012. 2012 Tenn. Pub. Acts 926. In 2013, subsection 121(f)(1)(C) was amended,

effective July 1, 2013, to expressly provide that participation by a healthcare provider is

voluntary.8 Tenn. Code Ann. § 29-26-121(f) (2013); 2013 Tenn. Pub. Acts. 23.

Section 29-26-121

Sometimes called “the Givens Fix,” because it arose against the backdrop of Givens

and a “reported . . . backlash of debate among defense lawyers[,]” Whitney Boshers Hayes,

Physician-Patient Confidentiality in Health Care Liability Actions: HIPAA’s Preemption of

Ex Parte Interviews with Treating Physicians Through the Obstacle Test, 44 U. Mem. L.Rev.

97, 105 (Fall 2013)); Burnett, 1 J. Health & Life Sci. L. 73, 80, Tennessee Code Annotated

§ 29-26-121(f) effectively legislatively abrogated Givens and Alsip to the extent to which

they barred ex parte interviews of a plaintiff’s treating healthcare providers by defendants

and defense counsel outside the discovery process. See Hall v. Crenshaw, No. W2014-0062-

COA-R9-CV, 2014 WL 3555987, at *4 n.2 (Tenn. Ct. App. July 18, 2014) (citing Tenn.

Code Ann. § 29-26-121(f) (2013); Hayes, 44 U. Mem. L.Rev. at 106-07). Subsection (f)(3)

of the section, moreover, has been held to “assume the existence of . . . a right” of defense

8

The 2012 amendments substituted “health care liability” for “medical malpractice.” 2012 Pub. Acts

798.

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counsel to conduct “‘interviews outside the presence of claimant or claimant’s counsel with

the defendant’s own present or former employees, partners, or owners concerning a

healthcare liability action[.]’” Hall, 2014 WL 3555987, at *4 n.2 (quoting Tenn. Code Ann.

§ 29-26-121(f)(3)).9

Section 29-26-121(f) is not without its limiting provisions, however. Rather, the

section reflects the General Assembly’s re-balancing of a plaintiff’s privacy interests and

expectations in his healthcare information against the defendants’ ability to obtain relevant

protected information outside of the formal discovery procedures set forth in Rule 26 of the

Tennessee Rules of Civil Procedure. We observe, moreover, that subsection 121(f) is one

subsection in a statutory section that serves to promote the expeditious resolution of

allegations of professional negligence in the healthcare setting. Accordingly, it is properly

construed within the context of the statute’s overall purpose and intent. See Eastman Chem.

Co. v. Johnson, 151 S.W.3d 503,507 (Tenn. 2004) (stating: a “statute must be construed in

its entirety” and its “background, purpose, and general circumstances under which words are

used in a statute must be considered”). We accordingly turn to the overall scheme of section

29-26-121.

As noted above, the General Assembly amended Part 1 of Chapter 26, Title 29,

formerly known as the Medical Malpractice Act, to add sections 29-26-121 and 29-26-122

in 2008. The mandatory pre-suit notice provision contained in subsection 121(a) sets forth

six requirements that serve to accomplish “related yet ultimately distinct goals.” Stevens ex

rel. Stevens v. Hickman Cmty. Health Care Servs., Inc., 418 S.W.3d 547, 554 (Tenn. 2013).

Subsection 121(a)(1) expressly requires the plaintiff to provide defendants with written

notice of a potential healthcare liability claim at least 60 days before filing a complaint.

Subsection 121(a)(2) “facilitate[s] early resolution” of potential claims by requiring plaintiffs

to provide identifying information, contact information, contact information for plaintiff’s

legal counsel, and a HIPAA-compliant authorization allowing the defendant healthcare

provider to obtain medical records from other providers included in the notice. Id. The

subsection thus fulfills an “investigatory function[,]” providing defendants the ability to

9

In Hall v. Crenshaw, a healthcare liability action filed prior to the effective date of the section, we

held that defense counsel for a medical entity was not prohibited from conferring ex parte with non-party

treating physicians employed by the defendant entity. The Hall court noted the “‘basic principle of agency

. . . that a corporation can act only through authorized acts of its corporate directors, officers, and other

employees and agents. Thus, the acts of the corporation’s agents are attributed to the corporation itself.’”

Hall, 2014 WL 3555987, at *8 (quoting Trau-Med of Am., Inc. v. Allstate Ins. Co., 71 S.W.3d 691, 703

(Tenn. 2002)). It reasoned that any knowledge that the non-party treating physician may have had about the

patient’s treatment accordingly was “already imputed” to the defendant medical entity. Id. The Hall court

held that neither Givens nor Alsip barred counsel for the medical entity from ex parte communication with

the entity’s own physician employees. Id. at *9.

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evaluate the merits of the plaintiff’s claim by facilitating early identification of potential co-

defendants and access to the plaintiff’s medical records. Id. Subsection 121(b) requires a

plaintiff to indicate in his pleadings whether he has complied with subsection 121(a), and to

attach the documentation required by subsection 121(a)(2). It also explicitly grants the trial

court the discretion to excuse compliance with the section “only for extraordinary cause

shown.” Tenn. Code Ann. § 29-29-121(b); Childs v. UT Med. Grp., Inc., 398 S.W.3d 163

(Tenn. Ct. App. 2012). Subsection 121(c) extends the applicable statutes of limitations and

repose when notice is given in compliance with the section. Tenn. Code Ann. § 29-26-

121(c). Subsection 121(e) provides that if a claim “is filed in good faith reliance” on

subsection 121(c) but is subsequently determined not to constitute a healthcare liability

action, the plaintiff may nevertheless rely on the extension of the statute of limitations and

statute of repose afforded by subsection 121(c). Tenn. Code Ann. § 29-26-121(e).

Subsection 121(d) entitles all the parties in a healthcare liability action to obtain complete

copies of the plaintiff’s medical records from other healthcare providers who received notice

and the HIPAA-compliant authorization mandated by subsection 121(a). Tenn. Code Ann.

§ 29-26-121(d). We note that our supreme court has construed “complete medical records”

to mean “medical records that are relevant to the particular claim at issue” and not the

“plaintiff’s entire medical history.” Stevens, 418 S.W.3d at 558. Effective July 1, 2012, if

a healthcare liability claim is filed, subsection 121(f)(1) permits the named defendants to

petition the trial court for a qualified protective order allowing the defendants and their legal

counsel to conduct interviews, outside of the presence of plaintiff and plaintiff’s counsel,

with the plaintiff’s treating healthcare providers. The subsection further provides that the

trial court “shall” grant the petition provided the petition identifies the treating healthcare

providers whom the defendant seeks to interview. Tenn. Code Ann. § 29-26-121(f)(1)(A).

Under subsection 121(f)(2), the disclosure of protected healthcare information in response

to an order entered under the section is deemed permissible notwithstanding any other

Tennessee state statute or common law. Tenn. Code Ann. § 29-26-121(f)(2). Finally,

subsection 121(f)(3) provides that the part does not restrict the right of a defendant or his

counsel “from conducting interviews outside the presence of claimant or claimant’s counsel

with the defendant’s own present or former employees, partners, or owners concerning a

healthcare liability action.” We have noted that subsection 121(f)(3) appears to assume that

defendants and their legal counsel have the right to conduct unrestricted ex parte interviews

with the defendant’s “present or former employees, partners, or owners concerning a

healthcare liability action.” Hall, 2014 WL 3555987, at *4, n.2.

The section is not without express limitations, however, and does not effectuate a

blanket waiver of confidentiality in healthcare information by the plaintiff. Defendants must

identify the healthcare providers to be interviewed, and the protection afforded by subsection

121(f)(2) is limited to disclosures made in conformance with the trial court’s order. Thus,

defendants may not seek to obtain protected healthcare information from healthcare providers

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who are not expressly identified on the protective order, and disclosure of protected health

information by providers other than those identified on the protective order is not

permissible. See Tennessee Code Annotated § 63-1-117 (2010), § 63-2-101 (2010), § 68-11-

312, § 68-11-1501, § 68-11-1502 (2013), § 68-11-1503 (2013), § 68-11-1504 (2010).

By its express terms subsection 121(f)(1) limits the scope of ex parte interviews

conducted pursuant to a qualified protective order to healthcare information that is 1)

otherwise protected and 2) relevant to the litigation currently pending before the trial court.

The plaintiff may file a motion to limit or prohibit the ex parte interviews, which the trial

court may grant “upon good cause shown that a treating healthcare provider does not possess

relevant information as defined by the Tennessee Rules of Civil Procedure[.]” Tennessee

Code Annotated § 29-26-121(f)(1)(B). Subsection 121(f)(1)(C) provides that a qualified

protective order entered under the section “shall expressly limit the dissemination of any

protected health information to the litigation pending before the court.” The subsection

currently also requires defendants conducting interviews pursuant to the section to destroy

any protected healthcare information obtained in the course of such interviews or to return

it to the healthcare provider from whom it was obtained. Tenn. Code Ann. § 29-26-

121(f)(1)(C)(i) (Supp. 2014). It also now requires the qualified protective order to expressly

state that a treating healthcare providers’s participation in any interview under the section is

voluntary. Tenn. Code Ann. § 29-26-121(f)(1)(C)(ii) (Supp. 2014). With this background

in mind, we turn to whether the trial court had the authority under the section to add the

additional restrictions imposed on the qualified protective order entered in this case.

The Trial Court’s Additional Restrictions

In their brief, Defendants assert that the plain language of section 29-26-121(f)(1)

prohibits trial courts from imposing any restriction or condition on a qualified protective

order entered pursuant to the section other than those expressly provided by the section.

They contend that “the statute clearly and unambiguously sets forth the conditions with

which defendants must comply when interviewing non-party healthcare providers” and that

the trial court in this case “departed from longstanding principles of statutory construction

and exceeded its authority” by imposing conditions on the qualified protective order that are

inconsistent with the statute. Defendants contend that the statute does not require that the

interviews be conducted under oath, that a court reporter be present, or that interview

transcripts be filed with the court, and that the trial court “simply does not have the authority

to unilaterally and fundamentally alter the nature of the interviews contemplated by and

clearly provided for in the plain language of the statute.” Defendants assert that the trial

court’s amended order would result in interviews fundamentally different than those

permitted by the section, and that it places them “in the same position as they were prior to

the passage of the statute” in contravention of the General Assembly’s intent to facilitate the

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early resolution of healthcare liability actions.

Defendants additionally contend that, by restricting the substantive subject matter of

the ex parte interviews to discussion of relevant protected health information, the trial court

prohibited discussions regarding standard of care issues, trial preparation, or “other topics

which may be related to the relevant [p]rotected [h]ealth [i]nformation.” Referencing the

hearings of this matter in the trial court, Defendants emphasize the trial court’s ruling that

the statute does not permit questioning regarding opinions relating to causation, the standard

of care or standard of practice, or anything other than protected health information that is

relevant to the lawsuit.

Mrs. Hayslett, on the other hand, asserts that the qualified protective order authorized

by the section constitutes a pretrial discovery order. She asserts that, as a pretrial discovery

matter, the order is “fully consigned to the oversight and discretion of trial judges.” Mrs.

Hayslett submits that the statutory language supports the addition of the conditions

incorporated by the trial court where section 29-26-121(f)(1)(B) provides that a “claimant

may file an objection seeking to limit or prohibit” defendants from conducting the ex parte

interviews. She asserts that, because the statute expressly limits ex parte interviews to those

healthcare providers who have relevant healthcare information, permitting a claimant to

move to further “limit” the interviews can only be interpreted as authorizing the trial court

to add limitations or conditions to the qualified protective order. She asserts that the

legislative history supports this interpretation. Mrs. Hayslett additionally asserts that

Defendants’ “contradictory arguments belie their opposition to a trial court’s discretion to

place conditions on a qualified protective order.” She asserts that, on one hand, Defendants

argue in their brief that the statute does not “require” a court reporter, that an interview be

under oath, or that a transcript be filed with the court, but assert on the other hand that it does

not “prohibit” them from seeking opinions regarding the standard of care and causation

issues. Mrs. Hayslett asserts that “simple logic will not allow Defendants to have it both

ways.” Her argument, as we understand it, is that Defendants’ assertion that the statute must

be narrowly construed to constrict the trial court’s authority with respect to limiting the ex

parte interviews only as expressly permitted by the statute, but broadly construed to permit

Defendants to conduct ex parte interviews on matters not specifically disallowed, is

internally contradictory.

Nature of the Section 29-26-121(f)(1) Interview

We begin our consideration of the parties’ arguments by noting that the parties

devoted considerable attention in their briefs and at oral argument to the question of whether

the qualified protective order permitted by section 29-26-121(f)(1) constitutes a “discovery”

order. Although they enable pretrial investigation of facts, the ex parte interviews permitted

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by the section clearly do not fall within the parameters of “discovery” as defined by Rule 26

of the Tennessee Rules of Civil Procedure. Rule 26.01 provides:

Parties may obtain discovery by one or more of the following methods:

depositions upon oral examination or written questions; written interrogatories;

production of documents or things or permission to enter upon land or other

property for inspection and other purposes; physical and mental examinations;

and, requests for admission.

Rule 26.01 does not include ex parte interviews conducted outside the presence of

opposing parties or counsel. Alsip, 197 S.W.3d at 727-28 (ex parte communications are not

among the discovery methods authorized by Rule 26); Givens, 75 S.W.3d at 408-09 (implied

covenant of confidentiality prevents a physician from informally speaking to defendant’s

legal counsel about plaintiff’s medical information, but does not permit a physician to

withhold information “in the face of a subpoena or other request cloaked with the authority

of the court”). Indeed, the Alsip court predicated its decision, in large part, on its

determination that a defendant is able to discover all of a plaintiff’s relevant medical

information through the discovery procedures prescribed in Rule 26.01. Alsip, 197 S.W.3d

at 727. The Alsip court observed that all relevant medical information undisputedly is

discoverable, and noted that “the question is simply how the defendant may discover it.” Id.

(emphasis in the original). The court noted that the Tennessee Rules of Civil Procedure “do

not prescribe ex parte communications.” Id. at 728. Observing that the physician-patient

relationship remains confidential notwithstanding that relevant information is subject to

discovery pursuant to Rule 26, the Alsip court also noted that the right to confidentiality in

all “health information not relevant to the malpractice lawsuit” remains notwithstanding the

action. Id. at 727-28 (emphasis in the original). The court recognized that ex parte

communications permit potential “abuse” by providing defense counsel the opportunity to

inquire into facts or opinions about a plaintiff’s medical information or history that may not

be relevant or discoverable, and determined that “because the formal methods of discovery

suffice to disclose all medical information relevant to the case, the needs of the trial court

system, and hence the dictates of public policy, are fulfilled without ex parte

communications.” Id. at 728. Ex parte communications clearly do not fall within the

purview of “discovery” as its is defined by the Tennessee Rules of Civil Procedure.

Section 29-26-121(f)(1), however, authorizes a pretrial investigatory procedure that

nevertheless requires a court order, and Tennessee common law has long recognized the

broad inherent authority of trial courts to control proceedings in their courts. Hodges v.

Attorney Gen., 43 S.W.3d 918, 921 (Tenn. Ct. App. 2000). As noted above, the section

expressly grants the trial court the discretion to grant a motion to limit or prohibit ex parte

interviews upon good cause shown that the treating healthcare provider does not possess

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relevant information as defined by the Tennessee Rules of Civil Procedure. Tenn. Code Ann.

§ 29-26-121(f)(1)(B). The section does not provide unlimited access to a plaintiff’s

healthcare providers, nor does it put defendants on “equal footing” with respect to the ability

to question a plaintiff’s healthcare providers. By its express terms, the statute is applicable

to protected healthcare information that is relevant to the lawsuit, at least with respect to

interviews conducted with healthcare providers who are not a defendant’s own agents. The

section also expressly limits the dissemination of protected healthcare information from all

healthcare providers to the litigation currently pending before the trial court and, as amended

in 2013, requires defendants to destroy or return any protected information gained in the

course of any interview. Tenn. Code Ann. § 29-26-121(f)(1)(C)(i). It also currently

mandates that a qualified protective order entered under the section expressly provides that

participation by a healthcare provider is voluntary. Tenn. Code Ann. § 29-26-

121(f)(1)(C)(ii).

To the extent to which the section permits the trial court to exercise its discretion over

the scope of ex parte interviews conducted under it, we review the trial court’s discretionary

decisions under an abuse of discretion standard. See Stevens, 418 S.W.3d at 553 (holding:

the trial court’s decision to excuse compliance with § 29-26-121(a) is reviewed for an abuse

of discretion); Deuel v. Surgical Clinic, PLLC, No. M2009-01551-COA-R3-CV, 2010 WL

3237297, at *6 (Tenn. Ct. App. Aug. 16, 2010) (citations omitted) (a trial court’s order

granting or denying a discovery protective order is reviewed for an abuse of discretion).

However, regardless of whether the ex parte interviews contemplated by the section may be

considered “discovery” or “procedural,” a trial court abuses its discretion when, inter alia,

it applies an incorrect legal standard. Stevens, 418 S.W.3d at 553. The initial question in this

case is not whether the trial court abused its discretion, but the extent and scope of the trial

court’s authority under the statute. Thus we turn to whether the statute affords the trial court

the authority to impose the conditions on the qualified protective order entered in this case.

Court Reporter, Oath, and Filing of Transcript

We turn first to whether section 29-26-121(f)(1) affords the trial court the authority

to require that a court reporter be present at ex parte interviews conducted pursuant to the

section, that all interviews be recorded, that they be conducted under oath, and that

transcripts of the interviews be filed under seal to enable Mrs. Hayslett to review them, after

good cause shown, for violation of privacy rights under HIPAA. We must agree with

Defendants that these conditions transform the investigatory interviews authorized by the

section into quasi-depositions in contravention of the substantive purpose of the section as

discussed herein.

Tennessee Rule of Civil Procedure 26.01 provides for discovery by several methods,

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including depositions upon oral examination. A deposition is “[a] witnesses’s out-of-court

testimony that is reduced to writing[.]” Black’s Law Dictionary, 534 (10 th ed.). Testimony

is defined as “[e]vidence that a competent witness under oath or affirmation gives at trial or

in an affidavit or deposition.” Id. at 1704. Oath is defined as “[a] solemn declaration . . . that

one’s statement is true[,]” and “[t]he person making the oath implicitly invites punishment

if the statement is untrue[.]” Id. at 1239.

As discussed above, the ex parte interviews permitted by the statute do not constitute

formal discovery under current Rule 26 of the Tennessee Rules of Civil Procedure.

Additionally, section 26-29-121(f)(1) modified the supreme court’s holdings in Givens and

Alsip by overruling the court’s total prohibition against a defendant’s ex parte

communication with a plaintiff’s treating healthcare providers. The section restored a

defendant’s ability to conduct ex parte interviews outside of the formal discovery process but

within statutory parameters that do not extend to matters beyond protected health

information. Notwithstanding Mrs. Hayslett’s assertion in her brief that, contrary to

Defendant’s assertion, the section prescribes “interviews” and not “informal interviews,” the

section clearly does not contemplate the formalities of a deposition.

We are not insensitive to the concern expressed by Mrs. Hayslett and the trial court

that a defendant or counsel may abuse the ex parte interviews permitted by the section to

inquire into facts or opinions that are not relevant or that may not lead to the discovery of

admissible evidence. As this court noted at oral argument, the high ethical standards of the

Bar notwithstanding, our adversarial system does not rely on the “trust me” principle.

However, we observe that the potential for abuse was addressed by the Alsip court, Alsip, 197

S.W.3d at 728; the section provides no mechanism for review by the plaintiff; and the section

expressly authorizes defendants and their attorneys the “right” to interview relevant

healthcare providers “outside the presence of claimant or claimant’s counsel” in order to

obtain relevant protected health information. As also noted by the court in Alsip, a plaintiff’s

relevant healthcare information is discoverable and treating healthcare providers certainly

may be deposed as provided by Rule 26. We presume the General Assembly was aware of

the state of the law and the concerns expressed by the court in Givens and Alsip when it

enacted section 29-26-121(f). See Lee Med., 312 S.W.3d at 527.

We additionally observe that section 29-26-121(f)(1) is limited to health information

that is protected and relevant to the litigation pending before the trial court. The current

version of the statute, moreover, expressly requires qualified protective orders to state that

a healthcare provider’s participation in an ex parte interview is voluntary. The statute also

provides that any disclosure of protected health information made in response to an order

entered under the section shall be deemed permissible under Tennessee law, notwithstanding

any other Tennessee statute or common law. Tenn. Code Ann. § 29-26-121(f)(2). Nothing

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in the statute as it existed in 2012 prohibited a healthcare provider from refusing to

participate in an ex parte interview, from refusing to respond to particular questions, from

requiring or disallowing presence of counsel, or from otherwise refusing to discuss his

patient’s healthcare information other than in a formal deposition.

Because the trial court’s order requires: 1) healthcare providers respond under oath

in interviews permitted under subsection 121(f)(1); 2) the interviews be held in the presence

of a court reporter; and 3) the interviews be recorded and filed under seal for potential review

by Mrs. Hayslett and her counsel, thereby transforming the ex parte interviews authorized

by the section into quasi-depositions in contravention of the legislative purpose of the statute,

we hold that Tennessee Code Annotated § 29-26-121(f) does not provide a court with the

authority to include those provisions in the qualified protective order.

Restricting the Order to “relevant protected health information”

We next turn to whether the trial court erred by including in the qualified protective

order that:

Relevant Protected Health Information may be elicited directly or indirectly

from a healthcare provider during the ex parte interview. Defendants should

not attempt to elicit or discuss Protected Health Information which is not

relevant to the issues in this lawsuit. This does not restrict the Defendants or

their attorneys from discussing non-substantive matters unrelated to the

patient’s Protected Health Information.

As noted above, the qualified protective order authorized by section 29-26-121(f)(1) is

expressly limited to relevant “protected health information.” An order entered pursuant to

the section gives defendants and their counsel the right to obtain such information through

ex parte interviews with the plaintiff’s treating healthcare providers. Tenn. Code Ann. § 29-

26-121(f)(1). Defendants in this case do not contend that a qualified protective order

entered under the section permits dissemination of protected healthcare information that is

irrelevant to the litigation. Rather, Defendants’ argument, as we understand it, is that the

section permits defendants and their counsel to elicit opinions regarding whether a

defendant’s acts or omissions caused the plaintiff’s injury, the standard of care, and other

matters during the ex parte interviews authorized by the section.10 We disagree.

10

The trial court’s order in this case does not specifically set-forth the “non-substantive matters” that

it disallows. Although a trial court speaks through its written orders and not through oral statements,

Alexander v. JB Partners, 280 S.W.3d 772, 777 (Tenn. Ct. App. 2011), the trial court is best situated to

interpret its own orders. Jackman v. Jackman, 373 S.W.3d 535 (Tenn. Ct. App. 2011). It is clear from the

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In Alsip, the supreme court unambiguously disallowed all ex parte communication

between defense counsel and a plaintiff’s treating physicians as a matter of public policy.

Alsip, 197 S.W.3d at 722. By its terms, section 29-26-121(f)(1) is limited to ex parte

interviews regarding relevant protected health information that is under the control of

plaintiff’s treating healthcare providers and otherwise confidential. The section modified the

supreme court’s holdings in Givens and Alsip that public policy and the implied contract of

confidentiality prohibited healthcare providers from discussing a patient’s healthcare

information with third parties other than as otherwise required by law and the formal

discovery process. It is designed to enable defendants to ascertain identifying information

and relevant healthcare information more expeditiously than otherwise allowed by the formal

discovery process in order “to evaluate the substantive merits of a plaintiff’s claim[.]”

Stevens, 418 S.W.3d at 555. Contrary to Defendants’ arguments in their brief and at the

February 2014 hearings before the trial court, there is nothing in the statute to indicate that

the General Assembly intended the section to serve as a mechanism to prepare potential

witnesses for questioning either in formal discovery or at trial. The opportunity granted by

the subsection is a limited one; it is limited to interviewing a plaintiff’s treating healthcare

providers to obtain information - specifically, the plaintiff’s relevant protected health

information that is in the direct knowledge and control of the plaintiff’s treating healthcare

providers. See id. at 558. It does not extend to opinions regarding whether a defendant

healthcare provider’s acts or failure to act, as the case may be, caused the injury complained

of by plaintiff in the lawsuit, or to the standard of care or standard of practice employed by

the defendants. This construction of the scope of the ex parte interviews permitted by section

29-26-121(f)(1) is further supported by subsection 121(f)(3), which contains no limitation

or restriction with respect to a defendant’s ex parte communication with the defendant’s own

partners, employees or, assuming an institutional defendant, owners. Because this particular

provision in the trial court’s qualified protective order does no more than reflect the

parameters of the statute, we discern no error and affirm this provision.

Holding

In light of the foregoing, we reverse in part affirm in part, and remand this matter to

transcript of the February 2014 hearing that the trial court interpreted its order as prohibiting ex parte

questioning by Defendants with respect to causation, the standard of care, the standard of practice or any

matter requiring an opinion about a Defendant’s acts or omissions. The trial court stated that the conditions

contained in the order “specifically exclude even from the protected health information area questions about

the doctor’s opinion on standard of care required for this kind of treatment and standard of practice, that sort

of thing. . . . I don’t think the statute extends to the expert opinions.” We additionally observe that a

considerable portion of the hearing before the trial court was devoted to the nature and extent of questioning

permitted by the qualified protective order, and that defense counsel sought detailed clarification in order

to abide by the trial court’s order and avoid any possible contempt.

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the trial court for further proceedings consistent with this Opinion. Costs on appeal are taxed

one-half to the Plaintiff/Appellee, Alethea Dean-Hayslett and one-half to

Defendants/Appellants, Methodist Healthcare Memphis Hospitals, a Tennessee Corporation,

d/b/a Methodist Hospital North and Mohamad Moughrabieh, M.D. As noted above, this is

an extraordinary appeal pursuant to Rule 10 of the Tennessee Rules of Appellate Procedure

and is limited to the issues for which the appeal was granted. We accordingly decline to

address Defendants’ assertion that the statute denies the trial court the authority in any

circumstance to impose any condition or limitation on a qualified protective order other than

as expressly provided by section 29-26-121(f)(1) as beyond the scope of the issue certified

for extraordinary appeal and, therefore, advisory. To the extent that the concurring opinion

suggests that we reached a determination on that issue, we disagree.

_________________________________

ARNOLD B. GOLDIN, JUDGE

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