Ex Parte Communications With Treating Physicians – TN Statute Ruled Unconstitutional

Judge Thomas Brothers of Nashville has declared Tenn. Code Ann. Section 29-26 -121(f)(1) and (2) unconstitutional.    Memorandum Order – Judge Brothers

The code section allows defense lawyers in Tennessee health care liability actions virtually unfettered  ex parte communications with the plaintiff’s non-party health care providers.   The code section was adopted by the Tennessee General Assembly in an attempt to override two  Tennessee Supreme Court  decisions.

The first of those cases was Givens v. Mullikin, 75 S.W.3d 383 (Tenn. 20o2), which held that a covenant of confidentiality between patients and their treating physicians arises because of an implied understanding between patient and doctor and from a public policy concern that private medical information should be protected.

The second of those cases  was  Alsip v. Johnson City Medical Center, 197 S.W.3d 722 (Tenn. 2006), which prohibited ex parte conversations between defense counsel in a health care liability action and a plaintiff’s non-party treating physicians.  The Alsip opinion permits discovery of information from a plaintiff’s non-party treating physicians under the rules of civil procedure.

The health care defense bar and health care liability insurers did not like Alsip and went to the Legislature for help.  Tenn. Code Ann. Section 29-26 -121(f)(1) requires courts to enter a qualified protective order giving a defense lawyer in a health care liability action the right to conduct an ex parte of a plaintiff’s treating physician  unless the plaintiff can prove that the provider does not possess relevant information. – which the court called “a substantial, if not insurmountable, burden.”

Judge Brothers’ 28 page opinion provides that the code section referenced above creates a procedure that conflicts with the Alsip opinion and Rule 26 of the Tennessee Rules of Civil Procedure and thus infringes on the powers granted to the judicial branch of government in violation of the separation of powers doctrine.  It also provides guidance on what provisions are an appropriate and necessary parts of a qualified protective order allowing interviews.  The Court also granted an interlocutory appeal of its ruling.

This is an important update decision for all health care liability lawyers in Tennessee.