In Caldwell v. Baptist Memorial Hosp., No. W2015-01076-COA-R10-CV (Tenn. Ct. App. June 3, 2016), the Court of Appeals held that the Tennessee Health Care Liability Act’s allowance for ex parte interviews between defendant and plaintiff’s health care providers was not preempted by HIPAA and was permissible under the federal law.
In this case, plaintiff filed an HCLA claim against multiple defendants, and one defendant “filed a petition for a qualified protective order (QPO) pursuant to Tenn. Code Ann. § 29-26-121(f) to allow ‘the defendant and his attorneys the right to obtain protected health information during interviews, outside the presence of claimant or claimant’s counsel, with the patient’s treating healthcare providers.’” While plaintiff acknowledged that defendant had complied with the statutory requirements under Tennessee law, she asserted that HIPAA preempted this Tennessee law and that the interviews should thus not be allowed. The trial court denied the defendant’s request for QPOs, and the defendant appealed.
On the state level, Tenn. Code Ann. § 29-26-121(f) “allows for the disclosure of protected health care information in ex parte interviews conducted during judicial proceedings,” provided certain conditions are met. The statute requires that the petition identify the healthcare provider to be interviewed; that the plaintiff can object based on the provider not possessing relevant information; that the QPO “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 interviews to return…or destroy any protected health information obtained…at the end of the litigation;” and that the QPO must state that participation in the interview is voluntary.