Should Defense Counsel Be Permitted to Have Ex Parte Communications With a Patient’s Health Care Providers?

Health care liability attorneys for defendants want the right to have private meetings with the doctors of patients who sue health care providers.  Not just with the doctors who were sued, but also the other doctors who treated the patient over the years.

The Tennessee Supreme Court ruled years ago that the patient’s privacy rights did not permit this type of activity.  Then, the Tennessee legislature got involved and passed legislation  (T.C.A. Section 29-26-121(f)) that lawyers for medical malpractice defendants maintain opened the door to ex parte communications with the the medical malpractice plaintiff doctors and other health care providers.   The issue are further complicated by the federal law known as "HIPPA," and whether this federal law which recognizes a consumer’s right to privacy regarding health care information preempts the Tennessee state statute.

T.C.A. Section 29-26-121(f)  creates a host of problems  and the courts are struggling with how to interpret it.  Attached is a collection of documents on this issue, all generated out of one case presided over by Judge Thomas Brothers of the Circuit Court for Davidson County, Tennessee.  The lawyers for the patient are Matt Hardin, ably assisted on this issue by Amy Farrar.   The defendant in the case is The Vanderbilt University, represented by Steve Anderson.  The case is on its way to the Court of Appeals.

 www.dayontorts.com/uploads/file/Order of Def Motion for Qualified Protective Order.pdf

www.dayontorts.com/uploads/file/2013-12-23 FILED interloc appeal.pdf

www.dayontorts.com/uploads/file/Order- Amended (HIPAA).pdf

www.dayontorts.com/uploads/file/Order on Joint Motion to Alter or Amend.pdf

www.dayontorts.com/uploads/file/Orders on Def_ Motions for Interloc Appeal.pdf

www.dayontorts.com/uploads/file/Order Granting Motion for permission to file interloc appeal.pdf

 If you have a case where the issue of ex parte communication with a plaintiff’s treating doctors has been litigated please send me the applicable documents and I will post them here for the benefit of other lawyers struggling with this issue.  I would like to share trial court orders and trial and appellate briefs.  My email address is jday@johndaylegal.com.

Thanks to Matt Hardin for sharing this information with all of us.

UPDATE: On March 28, 2014 the Tennessee Court of Appeals refused to hear the request for an interlocutory appeal in this case, holding that it could not conclude that an interlocutory appeal is necessary to prevent irreparable injury, develop a uniform body of law or prevent needless, expensive and protracted litigation.  Unless review is sought and accepted by the Tennessee Supreme Court , no ex parte communication will be permitted in this case.