Rhonda Willeford v. Timothy P. Klepper, M. D.

02/28/2020

IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

February 6, 2019 Session

RHONDA WILLEFORD, ET AL. v. TIMOTHY P. KLEPPER, M.D., ET AL.

Appeal from the Circuit Court for Overton County

No. 2015-CV-7 Jonathan L. Young, Judge

___________________________________

No. M2016-01491-SC-R11-CV

___________________________________

We granted review in this case to determine whether Tennessee Code Annotated section

29-26-121(f) violates the separation of powers clause in the Tennessee Constitution. The

statutory provision allows defense counsel to conduct ex parte interviews with patients’

non-party treating healthcare providers in the course of discovery in a healthcare liability

lawsuit. We hold that section 29-26-121(f) is unconstitutional as enacted, to the limited

extent that it divests trial courts of their inherent discretion over discovery. We also

conclude that the statute can be elided to make it permissive and not mandatory upon trial

courts. As such, we hold that the elided statute is constitutional. We vacate the trial

court’s qualified protective order entered in this case and remand the case to the trial

court for reconsideration based on the guidance set forth in this opinion.

Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Circuit Court Vacated;

Remanded to the Circuit Court for Overton County

JEFFREY S. BIVINS, C.J., delivered the opinion of the Court, in which CORNELIA A. CLARK,

SHARON G. LEE, and ROGER A. PAGE, JJ., joined. HOLLY KIRBY, J., filed a separate

opinion concurring in part and dissenting in part.

Philip N. Elbert and Jeffrey A. Zager, Nashville, Tennessee, for the Plaintiff/Appellant,

Rhonda Willeford.

Dixie W. Cooper, Nashville, Tennessee, for the Defendants/Appellees, Timothy P.

Klepper, M.D., and Overton Surgical Services.

Christopher A. Vrettos, Nashville, Tennessee, for the Defendant/Appellee, Livingston

Regional Hospital, LLC, d/b/a Livingston Regional Hospital.

Herbert H. Slatery III, Attorney General and Reporter; Andrée S. Blumstein, Solicitor

General; and Stephanie A. Bergmeyer, Assistant Attorney General, for the Defendant-

Intervenor/Appellee, State of Tennessee.

Peter B. Winterburn and Alexander H. Park, Memphis, Tennessee, for the amicus curiae,

Tennessee Defense Lawyers Association.

W. Bryan Smith, Memphis, Tennessee; John Vail, Washington, D.C.; Brian G. Brooks,

Greenbrier, Arkansas, for the amicus curiae, Tennessee Trial Lawyers Association.

OPINION

FACTUAL AND PROCEDURAL BACKGROUND1

The plaintiff, Rhonda Willeford, is the surviving daughter of the decedent in this

case, Jewel Margaret Colson. On October 16, 2013, Ms. Colson was admitted to

Defendant Livingston Regional Hospital’s emergency room. Following a CT scan and

examination, Ms. Colson was diagnosed with a bowel obstruction, among other things,

and transferred to the Intensive Care Unit. The attending physician, Michael Cox, MD,

ordered a surgical consult with Defendant Timothy Klepper, MD, a general surgeon, for

treatment related to Ms. Colson’s gastrointestinal problems. Over the next several days,

Ms. Colson was treated and evaluated by Dr. Klepper and several other physicians.

Despite treatment, Ms. Colson’s health continued to decline, and she died on October 21,

2013.

In 2015, Ms. Willeford filed this healthcare liability wrongful death lawsuit on

behalf of Ms. Colson (hereinafter “the decedent”). The lawsuit named as defendants Dr.

Timothy P. Klepper, Overton Surgical Services assumed name of Algood Medical Clinic

d/b/a AMG-Livingston, LLC, and Livingston Regional Hospital, LLC d/b/a Livingston

Regional Hospital (collectively “the Defendants”). Ms. Willeford alleged that the

Defendants’ negligent treatment of the decedent fell below the applicable standard of care

and resulted in the decedent’s death.2

1

Because this is an interlocutory appeal pursuant to Rule 9 of the Tennessee Rules of Appellate

Procedure, the facts are taken from the parties’ pleadings. We presume the facts to be true for purposes of

this appeal.

2

The complaint asserted that Tennessee Code Annotated section 29-39-102, which limits

recovery of noneconomic damages to $750,000, is unconstitutional and therefore void. This issue is not

presented in this appeal. The trial court allowed the State of Tennessee to intervene as a defendant for

purposes of defending the constitutionality of Tennessee Code Annotated section 29-39-102.

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In the course of discovery, the Defendants filed a motion for a qualified protective

order pursuant to Tennessee Code Annotated section 29-26-121(f).3 The motion

specifically requested that the Defendants be permitted to conduct interviews with the

decedent’s non-party treating healthcare providers, outside the presence of Plaintiff’s

counsel. See Tenn. Code Ann. § 29-26-121(f) (2012 & Supp. 2018).

In response, Ms. Willeford argued that the trial court should deny the Defendants’

motion because Tennessee Code Annotated section 29-26-121(f) is unconstitutional. Ms.

Willeford contended that, by mandating that trial courts must issue qualified protective

orders allowing defendants to conduct ex parte interviews with claimants’ treating

healthcare providers, the statute deprives the trial court of its inherent authority over court

proceedings. Thus, she argued that the statute violates the separation of powers clause in

the Tennessee Constitution. The State of Tennessee intervened in support of the

constitutionality of Tennessee Code Annotated section 29-26-121(f), arguing that the

Tennessee legislature properly exercised its power in enacting the statute.

The trial court granted the Defendants’ motion to conduct ex parte interviews with

the decedent’s non-party treating healthcare providers. The trial judge commented from

the bench that he did not like Tennessee Code Annotated section 29-26-121(f), stating

that “anytime that the legislature says the Court shall do something, I think that’s an

overstepping of their bounds.” The trial court believed, however, that it was not a trial

judge’s place to declare a statute unconstitutional. Thus, the court entered a written

qualified protective order allowing the interviews.

Ms. Willeford subsequently sought permission for an interlocutory appeal of the

trial court’s qualified protective order pursuant to Rule 9 of the Tennessee Rules of

Appellate Procedure, in order to raise the issue of whether Tennessee Code Annotated

section 29-26-121(f) violates the separation of powers doctrine embodied in article II,

sections 1 and 2, of the Tennessee Constitution.4 The trial court granted the motion for

3

Tennessee Code Annotated section 29-26-121(f)(1) provides:

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 . . . .

4

Article II, sections 1 and 2, of the Tennessee Constitution states:

Section 1. The powers of the government shall be divided into three distinct departments:

legislative, executive, and judicial.

-3-

interlocutory appeal, but the Court of Appeals denied Ms. Willeford’s application for

permission to appeal. Ms. Willeford then sought permission to appeal to this Court,

which we granted.

BACKGROUND ON EX PARTE INTERVIEWS

Before addressing Ms. Willeford’s arguments, we find it helpful to provide a

history of the developments in this area of the law.

This Court has recognized that, at common law, there was no privilege for

physician-patient communications. Quarles v. Sutherland, 389 S.W.2d 249, 250–51

(Tenn. 1965). The Quarles Court further observed that, because “our Legislature has not

seen fit to act on the matter” by enacting a statute to the contrary, the Court “must apply

the common law rule.” Id. at 251.

In 1996, the United States Congress passed the Health Insurance Portability and

Accountability Act (“HIPAA”), Pub. L. No. 104-191, tit. II, § 262(a), 110 Stat. 1936

(1996). See 42 U.S.C. § 1320d et seq. “Congress enacted HIPAA, in part, to protect the

security and privacy of [health information].” Wade v. Vabnick-Wener, 922 F. Supp. 2d

679, 687 (W.D. Tenn. 2010) (alteration in original) (quoting Law v. Zuckerman, 307 F.

Supp. 2d 705, 710 (D. Md. 2004)).

The Department of Health and Human Services was given broad authority by

Congress to then “promulgate rules and regulations protecting the privacy of patient

health information.” Id. (citation omitted). These regulations “place strict limitations on

the ability of certain health care providers to release a patient’s medical records or discuss

the patient’s medical history without the express consent of the patient.” Id. (citation

omitted).

Because “HIPAA’s definition of health information includes oral information . . . ,

the statute covers oral interviews.” Caldwell v. Baptist Mem’l Hosp., No. W2015-01076-

COA-R10-CV, 2016 WL 3226431, at *5 (Tenn. Ct. App. June 3, 2016) (citing 45 C.F.R.

§ 160.103), perm. app. denied (Tenn. Oct. 21, 2016). Defined exceptions to HIPAA’s

prohibitions against disclosure include the disclosure of protected health information for

judicial and administrative proceedings. 45 C.F.R. § 164.512(e) (2016). None of

HIPAA’s provisions, however, address ex parte interviews with healthcare providers.

See Myles J. Poster, HIPAA Confusion: How the Privacy Rule Authorizes “Informal”

Discovery, 44 U. Balt. L. Rev. 491, 504–06 (2015).

Section 2. No person or persons belonging to one of these departments shall exercise any

of the powers properly belonging to either of the others, except in the cases herein

directed or permitted.

Tenn. Const. art II, §§ 1-2.

-4-

Tennessee also has enacted legislation pertaining to the privacy of patients’

medical records and information, including the Medical Records Act, Tennessee Code

Annotated § 63-2-101(b)(1)(A) (2017) (“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.”), and the Patient’s Privacy Protection

Act, Tennessee Code Annotated § 68-11-1502 (2013) (“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.”);

id. § 68-11-1503 (limiting disclosure of patient’s medical and personal information).

Before HIPAA, state approaches to ex parte interviews with plaintiffs’ treating

healthcare providers were not uniform. Compare Samms v. Dist. Court, Fourth Judicial

Dist. of State of Colo., 908 P.2d 520, 526 (Colo. 1995) (holding that Colorado discovery

rules permit defense counsel to conduct informal interviews with plaintiffs’ physicians),

and Green v. Bloodsworth, 501 A.2d 1257, 1258–59 (Del. Super. Ct. 1985) (permitting

informal discovery, including defense counsel’s conferring directly with plaintiffs’

physicians), with Roosevelt Hotel Ltd. P’ship v. Sweeney, 394 N.W.2d 353, 357 (Iowa

1986) (stating that the court “agree[d] with those jurisdictions that have refused to order

the execution of waivers and ex parte interviews” and that its “discovery rules do not

provide for such a procedure”), and Crist v. Moffatt, 389 S.E.2d 41, 47 (N.C. 1990)

(holding that “defense counsel may not interview plaintiff’s nonparty treating physicians

privately without plaintiff’s express consent”).

Since the enactment of HIPAA, the lack of uniformity as to ex parte interviews

has continued. Several states allow defense counsel to conduct ex parte interviews with

plaintiffs’ treating healthcare providers. See, e.g., Moreland v. Austin, 670 S.E.2d 68, 72

(Ga. 2008) (allowing informal interviews between defense counsel and plaintiff’s treating

physicians, as long as defense counsel “first obtain[s] a valid authorization[] or court

order or otherwise comply with the provisions of 45 CFR § 164.512(e)”); Caldwell v.

Chauvin, 464 S.W.3d 139, 159–60 (Ky. 2015) (holding that neither Kentucky law nor

HIPAA prohibits ex parte interviews); Holman v. Rasak, 785 N.W.2d 98, 106 (Mich.

2010) (“Ex parte interviews are permitted under Michigan law, and nothing in HIPAA

specifically precludes them. Because it is possible for defense counsel to insure [sic] that

any disclosure of protected health information by the covered entity complies with 45

C[.]F[.]R[.] § 164.512(e) by making ‘reasonable efforts’ to obtain a qualified protective

order, HIPAA does not preempt Michigan law concerning ex parte interviews.”); Smith

v. Am. Home Prods. Corp. Wyeth-Ayerst Pharm., 855 A.2d 608, 623 (N.J. Super. Ct.

Law Div. 2003) (recognizing that ex parte interviews are permitted under state law);

Arons v. Jutkowitz, 880 N.E.2d 831, 842 (N.Y. 2007) (holding that state law allowing ex

parte interviews did not conflict with HIPAA); Holmes v. Nightingale, 158 P.3d 1039,

1041 (Okla. 2007) (HIPAA and Oklahoma law permit ex parte communications with

plaintiffs’ healthcare providers).

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Even more states, however, prohibit ex parte interviews with plaintiffs’ treating

healthcare providers. See, e.g., Hasan v. Garvar, 108 So. 3d 570, 578 (Fla. 2012)

(holding Florida’s patient confidentiality statute “prohibits ex parte meetings between

nonparty treating physicians and others outside the confidential relationship whether or

not they intend to discuss privileged or non-privileged matters without measures to

absolutely protect the patient and the privilege”); Wood v. Am. Nat’l Prop. & Cas. Ins.

Co., 1 So. 3d 764, 768 (La. Ct. App. 2008) (recognizing that defendants may obtain

patients’ medical information only through testimony at trial or use of “proper discovery

methods,” which do not include ex parte communications); State ex rel. Proctor v.

Messina, 320 S.W.3d 145, 157 (Mo. 2010) (interpreting HIPAA as not allowing ex parte

communications “because the trial court has no general oversight of the meeting or any

control over it”); Leavitt v. Siems, 330 P.3d 1, 8 (Nev. 2014) (“[W]e conclude that there

is no need to allow ex parte communication with the opposing party’s experts absent

express consent.”); Sorensen v. Barbuto, 177 P.3d 614, 619 (Utah 2008) (prohibiting ex

parte communications because “not doing so undermines patient expectations of

physician-patient confidentiality” and “appropriately limiting the scope of a treating

physician’s disclosures requires judicial monitoring that cannot occur in the context of ex

parte communications”); Youngs v. Peacehealth, 316 P.3d 1035, 1041–43 (Wash. 2014)

(holding that its prior bar on ex parte communications, announced in Loudon v. Mhyre,

756 P.2d 138 (Wash. 1988), survived amendments to the state’s physician-patient

privilege statute). See also Harrold-Jones v. Drury, 422 P.3d 568, 577 (Alaska 2018)

(holding that “formal discovery methods are more apt to comply with law and promote

justice in the vast majority of cases and that there will be few, if any, extraordinary

situations in which an ex parte contact authorization order is necessary under HIPAA’s

litigation exception”).

Tennessee’s Rules of Civil Procedure neither provide for nor prohibit ex parte

interviews in discovery. In civil practice, however, voluntary ex parte interviews

generally are “available for use with non-expert witnesses prior to formal depositions.”

David L. Woodard, Shielding the Plaintiff and Physician: The Prohibition of Ex Parte

Contacts with a Plaintiff’s Treating Physician, 13 Campbell L. Rev. 233, 239 (1991).

Before the enactment of HIPAA and state legislation concerning the

confidentiality of patient medical information, it was common practice in Tennessee for

defense counsel to conduct ex parte interviews with plaintiffs’ treating physicians. See,

e.g., Alessio v. Crook, 633 S.W.2d 770, 780 (Tenn. Ct. App. 1982) (referring to

plaintiff’s treating physician as “available to all parties” for interview), superseded by

statute, 1996 Tenn. Pub. Acts ch. 862, as recognized in Givens v. Mullikin ex rel. Estate

of McElwaney, 75 S.W.3d 383, 409 n.13 (Tenn. 2002); see also Alsip v. Johnson City

Med. Ctr., No. E2004-00831-COA-R9-CV, 2005 WL 1536192, at *10 (Tenn. Ct. App.

June 30, 2005) (“[D]efendants may be right when they contend that informal discussions

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[between defense counsel and plaintiffs’ healthcare providers] were once the order of the

day[.]”), aff’d, 197 S.W.3d 722 (Tenn. 2006).

But practice in Tennessee changed with this Court’s decision in Givens, 75

S.W.3d 383. In Givens, the plaintiff originally had filed suit in a separate case against an

alleged tortfeasor for injuries sustained in a traffic accident. Id. at 391. The plaintiff later

filed a lawsuit for vicarious liability against an alleged tortfeasor and his insurance carrier

for their defense attorney’s alleged abuse of the discovery process, alleging that the

attorney had initiated private communications with the plaintiff’s treating physician,

which breached the physician’s contract of confidentiality. Id. at 405.

The Givens Court observed Tennessee’s enactment of several statutes requiring

“physician[s] and others to keep a patient’s medical records and identifying information

confidential.”5 Id. at 407 (citing Medical Records Act, Tenn. Code Ann. § 63-2-

101(b)(1); Patient’s Privacy Protection Act, id. §§ 68-11-1502, -1503). Furthermore,

according to the Givens Court, the enactment of these statutes brought about an

expectation “that the physician will keep the patient’s information confidential” and

created “an implied covenant of confidentiality” arising from the contract for treatment.

Id. The Court held that the physician breaches this implied covenant of confidentiality

“by divulging medical information, without the patient’s consent, through informal

conversations with others.” Id. at 409.

The Givens opinion created confusion among attorneys in Tennessee. See, e.g.,

Jerry O. Potter, Can We Talk?, Tenn. B.J., Nov. 2002, at 15, 20 (“The effect of [Givens]

is to create a crisis for attorneys who engage in the defense of health-related malpractice

suits. Without question, this decision will make the defense of malpractice suits difficult

at best and impossible in many situations.”); Bobby Russ, Can We Talk? The Rest of the

Story or Why Defense Attorneys Should Not Talk to the Plaintiff’s Doctors, Tenn. B.J.,

Feb. 2003, at 29, 32 (“Prohibiting ex parte interviews is supported by an abundance of

legal authority and common sense policy arguments.”).

Thus, the Court granted permission to appeal in Alsip v. Johnson City Medical

Center in order “to clarify the meaning of our holding in Givens.” 197 S.W.3d 722, 723

(Tenn. 2006). In Alsip, the Court considered whether the trial court erred by allowing

defense counsel to engage in ex parte interviews with the decedent’s non-party treating

physicians. Id. at 725.

The Alsip Court noted that Givens “recognized an implied covenant of

confidentiality in medical-care contracts between treating physicians and their patients.”

Id. (emphasis removed). The Court noted, however, that “[l]ike all contract terms,

5

The Givens opinion was issued months before the HIPAA privacy rules and final security

regulations became effective in April 2003.

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however, the implied covenant of confidentiality becomes unenforceable when it offends

public policy.” Id. at 726 (citing Planters Gin Co. v. Fed. Compress & Warehouse Co.,

78 S.W.3d 885, 890 (Tenn. 2002)).

The Alsip Court explained that, since the formal methods of discovery pursuant to

Rule 26 are sufficient for defendants to access all of the relevant medical information, it

was “reasonable to conclude that those formal discovery methods exclusively define the

manner of disclosure in medical malpractice cases.” Id. at 728 (emphasis removed).

Furthermore, “‘the confidential nature of the physician-patient relationship remains even

though medical information is . . . subject to discovery’ because the plaintiff’s contractual

right to medical confidentiality remains in all his health information not relevant to the

malpractice lawsuit.” Id. at 727–28 (emphasis removed) (quoting Crist, 389 S.E.2d at 46;

Petrillo v. Syntex Labs., Inc., 499 N.E.2d 952, 959 (Ill. App. Ct. 1986)).

Thus, the Court concluded, “Neither the law nor public policy requires 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 730.

Accordingly, “ex parte communications between the plaintiff’s non-party physicians and

defense attorneys are not allowed in the State of Tennessee.” Id. at 724.

In 2012, the General Assembly abrogated the holdings in Givens and Alsip by

adding subsection (f) to Tennessee Code Annotated section 29-26-121. See Hearing on

S.B. 2789 Before the S. Judiciary Comm., 107th Gen. Assemb. (Tenn. Mar. 13, 2012)

(statement of attorney witness Howard Hayden at 52:30); see also Hall v. Crenshaw, 449

S.W.3d 463, 467 n.2 (Tenn. Ct. App. 2014) (noting that legal scholars refer to the statute

as “the Givens Fix”). Section 29-26-121(f) as enacted in July 2012 stated:

(1) Upon the filing of any “healthcare liability action,” as defined in § 29-

26-101(a)(1), 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(a)(2).

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

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healthcare provider does not possess relevant information as

defined by the Tennessee Rules of Civil Procedure; and

(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) (effective July 1, 2012) (emphasis added).

Thus, the statute requires trial courts to permit defense counsel in healthcare

liability actions to conduct ex parte interviews with non-party treating healthcare

providers when defense counsel meets the conditions provided in the statute. Tenn. Code

Ann. § 29-26-121(f)(1). The term “healthcare provider” includes physicians and other

healthcare employees such as nurses. See Tenn. Code Ann. § 29-26-101(a)(2)(A)-(D)

(2012 & Supp. 2019).

The Senate sponsor of the bill adding subsection (f) to section 29-26-121 stated

that the purpose was to provide in pretrial procedure “equality among the [parties to a

healthcare liability lawsuit] in terms of having access to informal discussions with

[healthcare providers].” See Hearing on S.B. 2789 Before the S. Judiciary Comm., 107th

Gen. Assemb. (Tenn. Apr. 11, 2012) (statement of Sen. Brian Kelsey at 5:56:40).

Furthermore, an attorney witness stated,

What’s happened is that there has become a very uneven playing field

between plaintiffs and defendants where plaintiffs have the right of

unfettered access to health care providers in order to investigate their claims

whereas defense lawyers don’t have the same access to speak with health

care providers absent permission from the patient or the claimant.

Hearing on S.B. 2789 Before the S. Judiciary Comm., 107th Gen. Assemb. (Tenn. Mar.

13, 2012) (statement of attorney witness Howard Hayden, at 52:23).

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Witnesses also pointed out that, under the rules of civil procedure, there was no

way to take a discovery-only deposition of a treating healthcare provider. See id.

(statement of attorney witness Howard Hayden, at 1:02:15, emphasizing the need for

defense counsel to have informal discussions with non-party treating physicians so that

counsel can know in advance what the treating physicians would say in a deposition

because physicians’ depositions are admissible at trial for all purposes under the rules).6

In 2013, the General Assembly added a provision to section 29-26-121(f), stating

that protective orders on ex parte interviews with treating healthcare providers “shall

expressly limit the dissemination of any protected health information to the litigation

pending before the court and require the defendant” to return or destroy the information

at the end of the proceedings. Tenn. Code Ann. § 29-26-121(f)(1)(C)(i) (Supp. 2019)

(effective July 1, 2013). This provision accords with HIPAA regulations. See 45 C.F.R.

§ 164.512(e)(1)(v).

In January 2015, the Tennessee Court of Appeals interpreted section 29-26-121(f),

holding that, in ex parte interviews with treating healthcare providers, the statute did not

give defendants the right to seek opinions on causation and standard of care. Dean-

Hayslett v. Methodist Healthcare, No. W2014-00625-COA-R10-CV, 2015 WL 277114,

at *13–14 (Tenn. Ct. App. Jan. 20, 2015), perm. app. denied and designated as not for

citation (Tenn. Aug. 17, 2015).7

Within months, the legislature amended the statute to abrogate the Court of

Appeals’ holding by specifically providing that it was permissible for defense counsel to

ask about “opinions as to the standard of care of any defendant, compliance with or

breach of the standard, and causation of the alleged injury.” See 2015 Tenn. Pub. Acts

ch. 268 (adding Tenn. Code Ann. § 29-26-121(f)(2)).

ANALYSIS

Against this backdrop, we now consider the issue before this Court. Ms. Willeford

argues that Tennessee Code Annotated section 29-26-121(f) violates the separation of

powers clause in the Tennessee Constitution. Accordingly, she asks this Court to reverse

the trial court’s grant of a qualified protective order which allowed the defendants in this

6

“The deposition of a witness, whether or not a party, may be used by any party for any purpose

if the court finds that the witness is ‘unavailable’ . . . .” Tenn. R. Civ. P. 32.01(3). “Depositions of

medical doctors may be read into evidence pursuant to Rule 32.01, T.R.C.P., because physicians are

exempt from subpoena to trial under T.C.A. § 24-9-101.” Faux v. Spears, No. 03A01-9312-CV-00433,

1994 WL 147830, at *1 (Tenn. Ct. App. Apr. 26, 1994).

7

Although this Court designated the Dean-Hayslett opinion as “Not For Citation,” we discuss it

to provide background to legislation pertinent to this appeal.

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case to take part in ex parte interviews with the decedent’s non-party treating healthcare

providers.

Standard of Review

Because issues of constitutionality and statutory construction are questions of law,

we review them de novo with no presumption of correctness accorded to the legal

conclusions of the courts below. See Waters v. Farr, 291 S.W.3d 873, 882 (Tenn. 2009);

State v. Walls, 62 S.W.3d 119, 121 (Tenn. 2001).

Constitutionality of Section 29-26-121(f)

As this Court provided in State v. Lowe,

Article II, section 1, of the Tennessee Constitution provides that

“The powers of the Government shall be divided into three distinct

departments: the Legislative, Executive, and Judicial.” Section 2 of the

same Article provides: “Limitation of powers. No person or persons

belonging to one of these departments [set forth] shall exercise any of the

powers properly belonging to either of the others, except in the cases herein

directed or permitted.” With respect to the judicial department, the

Tennessee Constitution specifies that “the judicial power of this State shall

be vested in one Supreme Court and in such Circuit, Chancery and other

inferior Courts as the Legislature shall from time to time, ordain and

establish; in the Judges thereof, and in Justices of the Peace.” Tenn. Const.

art. VI, § 1. The Tennessee Supreme Court is a “direct creature of the

Constitution” and “constitutes the supreme judicial tribunal of the [S]tate.”

Barger v. Brock, 535 S.W.2d 337, 340 (Tenn. 1976). The Tennessee

Supreme Court “and its jurisdiction cannot be interfered with by the other

branches of the government. Its adjudications are final and conclusive

upon all questions determined by it, save those reserved to the federal

courts, which may be reviewed by the Supreme Court of the United States.”

Clements v. Roberts, 144 Tenn. 152, 231 S.W. 902, 902 (1921) (emphasis

added) (citing Miller v. Conlee, 37 Tenn. 432, 433 (1858); Dodds v.

Duncan, 80 Tenn. 731, 734 (1884); State, to Use of Fletcher v. Gannaway,

84 Tenn. 124, 126 (1885)).

552 S.W.3d 842, 856 (Tenn. 2018).

“In evaluating the constitutionality of a statute, we begin with the presumption that

an act of the General Assembly is constitutional.” Gallaher v. Elam, 104 S.W.3d 455,

459 (Tenn. 2003) (citing State v. Robinson, 29 S.W.3d 476, 479-480 (Tenn. 2000); Riggs

v. Burson, 941 S.W.2d 44, 51 (Tenn. 1997)). “[I]n reviewing [a] statute for a possible

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constitutional infirmity, we are required to indulge every presumption and resolve every

doubt in favor of the constitutionality of the statute.” In re Burson, 909 S.W.2d 768, 775

(Tenn. 1995) (citing State v. Lyons, 802 S.W.2d 590, 592 (Tenn. 1990)).

“The Court must uphold the constitutionality of a statute wherever possible[.]”

State v. McCoy, 459 S.W.3d 1, 8 (Tenn. 2014). “[T]he Court must be controlled by the

fact that our Legislature may enact any law which our Constitution does not prohibit, and

the Courts of this State cannot strike down one of its statutes unless it clearly appears that

such statute does contravene some provision of the Constitution.” Holly v. City of

Elizabethton, 241 S.W.2d 1001, 1004-05 (Tenn. 1951) (citing Joyner v. Priest, 117

S.W.2d 9, 11 (Tenn. 1938)).

This Court, however, has not spelled out clearly an analysis for considering a

separation-of-powers issue in a case such as this when a statute effectively abrogates case

law. In such a case, this Court must determine which entity has the ultimate authority

over a particular legal issue.

We note that the Kentucky Supreme Court distinguishes between substantive law,

which is under the authority of its legislature, and rules of practice and procedure, which

are under the authority of its judiciary. Cabinet for Health & Family Servs. v. Chauvin,

316 S.W.3d 279, 285 (Ky. 2010) (citations omitted) (“[T]he legislature has the exclusive

authority to enact substantive law, whereas this Court has the exclusive authority to enact

‘rules of practice and procedure for the Court of Justice.”’).8 This distinction appears

consistent with existing Tennessee law. Tennessee Code Annotated section 16-3-402

provides that “[t]he supreme court has the power to prescribe by general rules the forms

of process, writs, pleadings and motions, and the practice and procedure in all of the

courts of this state in all civil and criminal suits, actions and proceedings.” Tenn. Code

Ann. § 16-3-402 (2009). However, “[t]he rules prescribed by the supreme court pursuant

to § 16-3-402 shall not abridge, enlarge or modify any substantive right, and shall be

consistent with the constitutions of the United States and Tennessee.” Tenn. Code Ann. §

16-3-403 (2009) (emphasis added).

“By the terms of our constitution, ‘[o]nly the Supreme Court has the inherent

power to promulgate rules governing the practice and procedure of the courts of this

state, and this inherent power ‘exists by virtue of the [Constitution’s] establishment of a

Court and not by largess of the legislature.’’” State v. McCoy, 459 S.W.3d 1, 9 (Tenn.

2014) (quoting State v. Mallard, 40 S.W.3d 473, 480–81 (Tenn. 2001)). The power over

the practice and procedure of the courts “cannot be constitutionally exercised by any

8

The Arkansas and Connecticut Supreme Courts have held similarly. See Broussard v. St.

Edward Mercy Health Sys., Inc., 386 S.W.3d 385, 389 (Ark. 2012) (“Procedural matters lie solely within

the province of this court.” (citations omitted)); State v. Clemente, 353 A.2d 723, 727–28 (Conn. 1974)

(“The substance-procedure test is merely one way of expressing what areas of the law fall within the

sphere of legislative or judicial power under article second of the Connecticut constitution.”).

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other branch of government” because it “is inherent in the judiciary and necessary to

engage in the complete performance of the judicial function.” Mallard, 40 S.W.3d at 481

(citations omitted) (internal quotation marks omitted). Thus, although this Court has not

expressly adopted this substantive versus procedural analysis, doing so would be

consistent with our constitutional and statutory law. Accordingly, we conclude that

adoption of the substantive versus procedural analysis is appropriate for the analysis of

issues of constitutionality under the separation of powers provisions of the Tennessee

Constitution.9

Thus, the Court must determine whether the provisions in the statute at issue in

this case are procedural or substantive in nature. The Kentucky Supreme Court has

provided some guidance in determining whether a given statute is substantive or

procedural:

In separating evidence law into substance and procedure, the best

scholars draw a distinction between rules that predominantly foster

accuracy in fact-finding and rules that predominantly foster other

objectives. They classify the latter as substantive and place privileges in

that category.

Chauvin, 316 S.W.3d at 285 (quoting Robert G. Lawson, Modifying the Kentucky Rules

of Evidence—A Separation of Powers Issue, 88 Ky. L.J. 525, 580 (2000)).

We also find guidance from the Florida Supreme Court’s opinion in Massey v.

David:

Of course, statutes at times may not appear to fall exclusively into

either a procedural or substantive classification. We have held that where a

statute contains some procedural aspects, but those provisions are so

intimately intertwined with the substantive rights created by the statute, that

statute will not impermissibly intrude on the practice and procedure of the

courts in a constitutional sense, causing a constitutional challenge to fail. If

a statute is clearly substantive and operates in an area of legitimate

legislative concern, this Court will not hold that it constitutes an

unconstitutional encroachment on the judicial branch. However, where a

statute does not basically convey substantive rights, the procedural aspects

of the statute cannot be deemed “incidental,” and that statute is

unconstitutional. Moreover, where this Court has promulgated rules that

relate to practice and procedure, and a statute provides a contrary practice

or procedure, the statute is unconstitutional to the extent of the conflict.

9

In adopting this test, we realize that the application of the test will be a fact-intensive, case-by-

case analysis.

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Finally, where a statute has some substantive aspects, but

the procedural requirements of the statute conflict with or interfere with the

procedural mechanisms of the court system, those requirements are

unconstitutional.

979 So. 2d 931, 937 (Fla. 2008) (internal citations and quotation marks omitted). See

also In re SRBA Case No. 39576, 912 P.2d 614, 623 (Idaho 1995) (noting the court’s

previously adopted procedural versus substantive distinction, stating that substantive law

“creates, defines, and regulates primary rights,” whereas “practice and procedure pertain

to the essentially mechanical operations of the courts by which substantive law, rights,

and remedies are effectuated”).

Moreover, this Court has provided clarity for understanding the procedural

confines of the judiciary’s authority:

Among these inherent judicial powers are the powers to hear facts,

to decide the issues of fact made by the pleadings, and to decide the

questions of law involved. As an essential corollary to these principles, any

determination of what evidence is relevant, either logically or legally, to a

fact at issue in litigation is a power that is entrusted solely to the care and

exercise of the judiciary. Indeed, a “court’s constitutional function to

independently decide controversies is impaired if it must depend on, or is

limited by, another branch of government in determining and evaluating the

facts of the controversies it must adjudicate.” Consequently, any legislative

enactment that purports to remove the discretion of a trial judge in making

determinations of logical or legal relevancy impairs the independent

operation of the judicial branch of government, and no such measure can be

permitted to stand.

Mallard, 40 S.W.3d at 483 (internal citations omitted).

Looking to the statute at issue, we first note that the overarching purpose of the

Tennessee Health Care Liability Act, codified at Tennessee Code Annotated section 29-

26-101 to -122, is not purely procedural. The governance of healthcare liability actions is

an area of mutual concern for the legislature and the judiciary. See Williams v. SMZ

Specialists, PC, No. W2012-00740-COA-R9-CV, 2013 WL 1701843, at *9 (Tenn. Ct.

App. Apr. 19, 2013) (“The overall statutory scheme, including the pre-lawsuit notice

requirement in Section 29-26-121, is driven by the Legislature’s substantive public policy

concerns, and therefore cannot be described as purely procedural.” (citing Biscan v.

Brown, 160 S.W.3d 462, 474 (Tenn. 2005)). Since its enactment, this Court has

acknowledged the valid policy considerations motivating the general assembly to

legislate in this area. See, e.g., Harrison v. Schrader, 569 S.W.2d 822, 826 (Tenn. 1978)

(“At the time the legislature passed the statute of limitations eventually codified as Sec.

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23-3415(a), T.C.A., this state and the nation were in the throes of what was popularly

described as a ‘medical malpractice insurance crisis.’ . . . The legislature could have seen

in this situation a threat not only to the medical profession and its insurers, but also to the

general welfare of the citizens of this state. As liability costs skyrocketed, so would the

cost of health care. Physicians would be encouraged to cease practice or contemplate

early retirement, and the number of available physicians would decrease. The practice of

‘defensive medicine,’ spawned by fear of costly legal actions, would lead to a lower

quality of health care in general. These considerations may or may not have been valid;

however, it is apparent that they were accepted by the legislature and formed the

predicate for its action.” (footnote omitted)).

Indeed, the judiciary has upheld the constitutionality of various provisions of this

statute that prescribe procedure. See, e.g., Harrison, 569 S.W.2d at 827–828 (holding

that “[s]tatutes providing for the limitation of actions are, apart from equitable principles,

‘exclusively the creatures of the legislative branch[,]’” and “it is not the role of this Court

to pass upon the wisdom or lack thereof of the legislation under review” (citation

omitted)); Newton v. Cox, 878 S.W.2d 105, 111 (Tenn. 1994) (“This Court has

previously recognized that areas exist in which both the legislative and judicial branch

have interests, and that in such areas both branches may exercise appropriate authority.”);

Jackson v. HCA Health Servs. of Tenn., Inc., 383 S.W.3d 497, 506–07 (Tenn. Ct. App.

2012) (holding that Tennessee Code Annotated section 29-26-122 (2009) did not violate

the separation of powers clause of the Tennessee Constitution because that the statute

was not in conflict with the Tennessee Rules of Civil Procedure). Although the examples

provided above were instances in which the courts determined that the statutory

provisions at issue were supplemental to court rules or case law, the case law above

indicates the judiciary’s longstanding recognition that this area of the law is one of

mutual concern and overlapping authority. See Cardwell v. Bechtol, 724 S.W.2d 739,

753–54 (Tenn. 1987) (“Nevertheless, [the statutory provision at issue] does impose more

rigorous procedural requirements on the plaintiff in a malpractice action, but, as this

Court has previously observed in this regard, ‘the conclusion is inevitable that the

Legislature has sanctioned existing case law governing both substantive and evidentiary

requirements, merely adding thereto . . . the additional expert witness requirements.’”

(quoting Baldwin v. Knight, 569 S.W.2d 450, 453 (Tenn. 1978)).

Second, we hold that the overriding purpose of the particular provision at issue,

section 121, which allows ex parte communication between defendants and plaintiffs’

healthcare providers, is not purely procedural either. The creation of a privilege is

substantive law which, at least in large part, is within the province of the legislature. See,

e.g., Tenn. Code Ann. §§ 62-1-116 (accountant-client privilege), 23-3-105 (attorney-

client privilege), 24-1-206 (clergy-penitent privilege), 24-1-211(f) (deaf person-

interpreter privilege), 24-1-207 (psychiatrist-patient privilege); see also Tenn. R. Evid.

501 (“Except as otherwise provided by constitution, statute, common law, or by these or

other rules promulgated by the Tennessee Supreme Court, no person has a privilege to:

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(1) refuse to be a witness; (2) refuse to disclose any matter; (3) refuse to produce any

object or writing; or (4) prevent another from being a witness or disclosing any matter or

producing any object or writing.”). If the legislature has the authority to create a

privilege, it is only logical that the legislature also has the authority to determine that a

privilege, in a particular context, does not exist.

This Court’s analysis in Alsip is consistent with this conclusion:

Although no testimonial privilege protecting doctor-patient

communications has ever been recognized by this Court or declared by

Tennessee statute, in Givens v. Mullikin, 75 S.W.3d 383 (Tenn. 2002), we

recognized an implied covenant of confidentiality in medical-care contracts

between treating physicians and their patients. This covenant forbids

doctors from “releas[ing] without the patient's permission . . . any

confidential information gained through the [physician-patient]

relationship.” Givens, 75 S.W.3d at 407. We explained in Givens that the

covenant of confidentiality arises not only from the implied understanding

of the agreement between patient and doctor, but also from a policy concern

that such private and potentially embarrassing information should be

protected from public view. Id. (citing in support Tennessee Code

Annotated sections 63-2-101(b)(1) (1997), 68-11-1502 (2001), and 68-11-

1503 (2001), which are indicative of the General Assembly’s desire to keep

confidential a patient’s medical records and identifying information).

Indeed, “[t]he relationship of patient to physician is a particularly intimate

one [because] [t]o the physician we bare our bodies . . . in confidence that

what is seen and heard will remain unknown to others.” Cua v. Morrison,

626 N.E.2d 581, 586 (Ind. Ct. App. 1993). For this reason “the public has a

widespread belief that information given to a physician in confidence will

not be disclosed to third parties absent legal compulsion, . . . and [thus] the

public has a right to have this expectation realized.” Duquette v. Superior

Court in and for County of Maricopa, 161 Ariz. 269, 778 P.2d 634, 640 (Ct.

App. 1989).

197 S.W.3d at 725–26 (alterations in original). The Court then stated, however, that “the

implied covenant of confidentiality becomes unenforceable when it offends public

policy.” Id. at 726.

Because “the determination of public policy is primarily a function of the

legislature,” Alcazar v. Hayes, 982 S.W.2d 845, 851 (Tenn. 1998), the public policy, as

reflected in state law adopted by the legislature, can vitiate the covenant of

confidentiality. Alsip, 197 S.W.3d at 726. “Thus, the covenant of confidentiality is not

absolute and can be voided when its enforcement would compromise the needs of

society.” Id.

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Stated another way, this court in Alsip determined that the public policy interest of

protecting confidentiality dictated this Court’s need to prohibit ex parte communication.

See id. at 730 (“Because ex parte communications unnecessarily endanger the integrity of

the covenant of confidentiality between patient and physician by risking disclosure of the

decedent’s medical information not relevant to the lawsuit, and because the formal

methods of discovery provided for in Rule 26.01 suffice to provide the defendants with

all the decedent’s relevant medical information, we hold that the trial court erred by

issuing the order in controversy here. Neither the law nor public policy requires the

plaintiff to bear the risk of disclosure of irrelevant confidential medical information in

informal, private interviews with opposing counsel and non-party doctors.” (citation

omitted)).

However, by enacting the statute at issue, which expressly allows ex parte

communication in this context, the legislature changed the overriding public policy

concern in this area. The more important policy interest in this particular context,

according to the legislature, was equality of access to information and a balance of the

interests of the parties in medical malpractice cases.

Because it was within the legislature’s purview to modify the import of this public

policy, we should yield to the change, even if the matter does touch upon an area within

the province of the judiciary. See Biscan, 160 S.W.3d at 474 (“Although it is the

province of this Court to prescribe rules for practice and procedure in the state’s courts,

where a decision of the legislature chiefly driven by public policy concerns infringes on

that power we will generally defer to the judgment of the legislature.”); Bush v. State,

428 S.W.3d 1, 16 (Tenn. 2014) (“However, even though this Court is “supreme in fact as

well as in name” when it comes to Tennessee’s courts, our commitment to cooperation

among the three branches of government has prompted us to acquiesce in and to apply

statutes affecting the operation of the courts when they do not interfere with the courts’

adjudicative functions or otherwise impermissibly encroach on the Judicial Branch.”

(citation and footnote omitted)). Moreover, “it is not the role of this Court to pass upon

the wisdom or lack thereof of the legislation under review. In the absence of

constitutional infirmity such matters are ones of policy solely for the legislature.”

Harrison, 569 S.W.2d at 828 (citation omitted); see also State v. Howard, 504 S.W.3d

260, 270 (Tenn. 2016) (“[T]he General Assembly unquestionably has the constitutional

and legislative authority to change the common law of this state[.]” (citation omitted)).

Thus, we hold that the overriding purpose of the statute at issue is within the

authority of the legislature, or at least something to which the judiciary should yield if

reasonably possible.

However, this conclusion does not end our inquiry. We also must address the

specific language in section (f)(1) that effectively strips trial courts of their discretion.

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Under section 29-26-121(f), if defendants identify in their petitions the non-party

treating healthcare providers they wish to interview and the providers possess any

information that is relevant to the lawsuit, “[s]uch petition shall be granted.” Tenn. Code

Ann. § 29-26-121(f)(1) (Supp. 2019) (emphasis added). See also Caldwell, 2016 WL

3226431, at *8-9 (when statutory conditions are satisfied, trial courts are not free to

ignore the “mandates” of section 29-26-121(f) and instead order “discovery-only”

depositions). Trial courts may impose limitations only when plaintiffs object and then

only under strict conditions. See Tenn. Code Ann. § 29-26-121(f)(1)(B). In so doing,

section 29-26-121(f) removes trial courts’ control and discretion over a key aspect of

discovery.

“It is well settled that decisions with regard to pre-trial discovery matters rest

within the sound discretion of the trial court.” Benton v. Snyder, 825 S.W.2d 409, 416

(Tenn. 1992). This authority includes the trial court’s discretion to make discovery

decisions based on the facts in a particular case. See, e.g., Doe 1 ex rel. Doe 1 v. Roman

Catholic Diocese of Nashville, 154 S.W.3d 22, 42 (Tenn. 2005) (“Decisions concerning

pretrial discovery are matters of a trial court’s discretion.” (citing Benton, 825 S.W.2d at

416; Boyd v. Comdata Network, Inc., 88 S.W.3d 203, 211 (Tenn. Ct. App. 2002))); see

also Office of the Dist. Attorney of Phila. v. Bagwell, 155 A.3d 1119, 1138 (Pa. Commw.

Ct. 2017) (“The discretion exercised by the court in granting or denying a discovery

request goes straight to the heart of the judicial function and the prudential and ultimately

constitutional constraints placed on judicial power.”).

By removing any and all discretion from the trial courts in the decision to grant

protective orders, the legislature, in its enactment of Tennessee Code Annotated section

29-26-121(f), impermissibly intruded on the authority of the judiciary over procedural

matters. Thus, we must conclude that “the General Assembly overstepped its

constitutional boundaries” in violation of the separation of powers clause in the

Tennessee Constitution. See Lowe, 552 S.W.3d at 857.

Severability

Having concluded that the overriding purpose of the statute is within the purview

of the legislature but that a portion of the statute unconstitutionally infringes on the issues

within the sole prerogative of the judiciary, we next look to determine whether the

unconstitutional portion of the statute may be elided to preserve the remainder of the

statute. “Under the doctrine of elision, a court may, under appropriate circumstances and

in keeping with the expressed intent of a legislative body, elide an unconstitutional

portion of a statute and find the remaining provisions to be constitutional and effective.”

Lowe’s Cos., Inc. v. Cardwell, 813 S.W.2d 428, 430 (Tenn. 1991). Thus, once the court

can appropriately elide the “objectionable features” of the statute, the remainder is “valid

- 18 -

and enforceable.” Gibson Cnty. Special Sch. Dist. v. Palmer, 691 S.W.2d 544, 551

(Tenn. 1985).

We note that, as codified, section 29-26-121 does not have a severability clause.

However, “the General Assembly has approved the practice of elision through the

enactment of a general severability statute.” State v. Crank, 468 S.W.3d 15, 28 (Tenn.

2015) (citing Tenn. Code Ann. § 1-3-110).10 “[T]he legislature’s endorsement of elision

does not automatically make it applicable to every situation; however, when a conclusion

can be reached that the legislature would have enacted the act in question with the

unconstitutional portion omitted, then elision of the unconstitutional portion is

appropriate.” In re Swanson, 2 S.W.3d 180, 189 (Tenn. 1999) (citing State v. Tester, 879

S.W.2d 823, 830 (Tenn. 1994); State v. Murray, 480 S.W.2d 355, 356–57 (Tenn. 1972)).

Recognizing the legislature’s generally legitimate role to legislate in this area of

the law, we conclude that elision is appropriate in this case. The overriding purpose of

the statutory scheme can survive in this instance. Thus, we elide section 29-26-121(f) to

make it permissive only, in order to retain the core discretionary functions of trial courts

in discovery, while providing a framework for protective orders over ex parte interviews

with non-party treating healthcare providers. We elide from subsection (f)(1) the phrase,

“Such petition shall be granted under the following conditions.” Under the elided version

of the statute, a trial court can exercise its appropriate discretion over procedural

discovery matters and also retain the power to determine what is admissible at trial.

When trial courts permit ex parte interviews with non-party treating healthcare

providers, they must enter protective orders that comply with HIPAA. We note that

subsection (f)(1)(C) addresses HIPAA requirements for protective orders under this

section. Thus, we leave this provision undisturbed.

Similarly, to ensure compliance with HIPAA, we leave subsection (f)(2) intact.

We construe the specific language of this statutory provision as in no way placing any

10

This statute provides:

It is hereby declared that the sections, clauses, sentences and parts of the

Tennessee Code are severable, are not matters of mutual essential inducement, and any of

them shall be exscinded if the code would otherwise be unconstitutional or ineffective. If

any one (1) or more sections, clauses, sentences or parts shall for any reason be

questioned in any court, and shall be adjudged unconstitutional or invalid, such judgment

shall not affect, impair or invalidate the remaining provisions thereof, but shall be

confined in its operation to the specific provision or provisions so held unconstitutional

or invalid, and the inapplicability or invalidity of any section, clause, sentence or part in

any one (1) or more instances shall not be taken to affect or prejudice in any way its

applicability or validity in any other instance.

Tenn. Code Ann. § 1-3-110 (2014).

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limitations or changes on procedural rules related to the admissibility of any such

evidence at trial.11 Thus, the remainder of section 29-26-121(f) will remain valid and

enforceable. See Gibson Cnty. Special Sch. Dist., 691 S.W.2d at 551.

As elided, section 29-26-121(f) will read as follows:

(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.

(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;

(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.

(2) Any healthcare provider’s disclosure of relevant information in

response to a court order under this section, including, but not limited to,

protected health information, opinions as to the standard of care of any

defendant, compliance with or breach of the standard, and causation of the

alleged injury, shall be deemed a permissible disclosure under Tennessee

law.

11

We do not address subsection (f)(3) because the parties have raised no issue about that

subsection in this appeal.

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(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). The burden is on the defendants to demonstrate that the

patients’ non-discoverable health information will remain confidential if permission is

granted to engage in ex parte interviews.12

In summary, the elided statute allows defendants in healthcare liability actions to

petition trial courts for qualified protective orders for ex parte interviews with non-party

treating healthcare providers, but it leaves the manner of disposition of such petitions to

the sound discretion of trial courts. See In re NHC–Nashville Fire Litigation, 293 S.W.3d

547, 560 (Tenn. Ct. App. 2008) (“Generally, the granting, denying, or modifying of a

protective order relating to discovery procedures under Rule 26.03 rests within the sound

discretion of the trial court.” (citations omitted)). Upon review, the Court is confident

that the legislature “would have enacted” section 29-26-121(f) “with the objectionable

features omitted,” leaving the remainder of the statute fully “valid and enforceable.”

Gibson Cnty. Special Sch. Dist., 691 S.W.2d at 551. The statute as elided is “consistent

with the expressed legislative intent.” Crank, 468 S.W.3d at 29 (citing Tester, 879

S.W.2d at 830). Accordingly, we hold the elided statute constitutional.

CONCLUSION

We vacate the trial court’s May 11, 2016 qualified protective order and remand the

case to the trial court for reconsideration based upon the guidance provided in this

12

Guidance for trial courts in entering these protective orders may be found in a Georgia

Supreme Court decision encouraging “trial courts in authorizing such interviews, to fashion orders

carefully and with specificity as to scope.” Baker v. Wellstar Health Sys., Inc., 703 S.E.2d 601, 605 (Ga.

2010). Specifically, the court provided that the trial court should provide the following in its orders:

(1) the name(s) of the health care provider(s) who may be interviewed; (2) the medical

condition(s) at issue in the litigation regarding which the health care provider(s) may be

interviewed; (3) the fact that the interview is at the request of the defendant, not the

patient-plaintiff, and is for the purpose of assisting defense counsel in the litigation; and

(4) the fact that the health care provider's participation in the interview is voluntary. In

addition, when issuing or modifying such orders, trial courts should consider whether the

circumstances—including any evidence indicating that ex parte interviews have or are

expected to stray beyond their proper bounds—warrant requiring defense counsel to

provide the patient-plaintiff with prior notice of, and the opportunity to appear at,

scheduled interviews or, alternatively, requiring the transcription of the interview by a

court reporter at the patient-plaintiff’s request.

Id. (internal citations omitted).

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opinion. Costs of this appeal are assessed to the Defendant/Appellees, Timothy P.

Klepper and Overton Surgical Services, and their sureties, for which execution may issue,

if necessary.

__________________________________

JEFFREY S. BIVINS, CHIEF JUSTICE

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