Trial Court Cannot Impose Additional Limitations on Ex Parte Interviews in Healthcare Liability Cases.

Tenn. Code Ann. § 29-26-121(f) allows defendants in a Tennessee medical malpractice (now called healthcare liability) case to petition the court for a “qualified protective order allowing the defendant…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[.]’” The section goes on to specifically list four conditions placed on these interviews: (1) that the petition identify healthcare providers the defendant seeks to interview; (2) that plaintiff may object and seek to limit or prohibit the interview, which “may be granted upon good cause shown that a treating healthcare provider does not possess relevant information[;]” (3) that the protective order should limit the use/dissemination of the information and provide for its return or destruction after the litigation; and (4) that the protective order expressly states that a healthcare provider’s participation in such interview is voluntary.[1] In two almost identical recent cases, the Court of Appeals took up the issue of whether a trial court may place additional conditions or restraints on these interviews.

In both Dean-Hayslett v. Methodist Healthcare, No. W2014-00625-COA-R10-CV (Tenn. Ct. App. Jan. 20, 2015) and S.W. v. Baptist Memorial Hosp., No. W2014-00621-COA-R10-CV (Tenn. Ct. App. Feb. 27, 2015), plaintiffs filed health care liability claims against defendants for alleged professional negligence. At issue in these appeals were the ex parte interviews defendants wanted to conduct with plaintiffs’ treating physicians without plaintiffs or their counsel present. Both sets of defendants moved for qualified protective orders to conduct these interviews, pursuant to § 29-26-121(f), which plaintiffs opposed. The trial courts granted the qualified protective order for the interviews but ultimately placed eight conditions on the interviews in both cases:

(1) That participation by healthcare providers in the interviews was voluntary;

(2) That defendants “should not attempt to elicit or discuss Protected Health Information which is not relevant to the issues in this lawsuit;

(3) That protected health information obtained in the interviews only be used in conjunction with the lawsuit;

(4) That protected health information obtained be destroyed at the end of the litigation;

(5) That defendants could not begin the interviews until a certain date;

(6) That a court reporter had to be present and “record all questions and answers during the interview;”

(7) That the “answers during the interview must be given under oath;”

(8) And that the transcript be filed under seal with plaintiff able to gain access to the record to determine whether there was a HIPAA violation upon showing good cause.

Defendants filed for Rule 10 extraordinary appeals to contest some of these restrictions, and the Court of Appeals granted limited review. Specifically, the Court took up the issue of whether limitations 6-8 (regarding the court reporter, oath, and filing of the transcript) and limitation 2 (regarding limiting the scope of the interviews to protected health information relevant to the issues of the lawsuit) were permissible under the statute.

In addressing this issue in Dean-Hayslett, the Court reviewed the history of ex parte interviews, noting that the legislature adopted the statutory provision specifically allowing these interviews after they were prohibited by case law. Under the statute, however, ex parte interviews are not unlimited. By its terms, the statute limits the interviews to healthcare information that is relevant to the litigation and it sets parameters for the use and return or destruction of the material.  The defendants in the instant case argued that, pursuant to the statute, the trial court could not impose any additional restrictions on the qualified protective order. The plaintiff, on the other hand, asserted that this protective order was like a pretrial discovery order and the court therefore had the authority to place limitations on the interviews. Disagreeing with plaintiff, the Court determined that the interviews in question did not fall under “discovery.”

With this historical and analytical framework established, the Court of Appeals in Dean-Hayslett first addressed the limitations requiring a court reporter, oath, and the filing of the transcript. The Court found that these limitations were not allowable as they would “transform the investigatory interviews authorized by the section into quasi-depositions in contravention of the substantive purpose of the [statute].” Because the section was adopted specifically to allow less formal interviews, the Court held that the trial court did not have the authority to include these provisions in the qualified protective order.

Regarding the limitation that defendants elicit protected health information only if it was relevant to the litigation, the Dean-Hayslett Court upheld the trial court’s ability to impose this restriction. Although defendants argued that they should be able to inquire into standard of care, causation and other matters, the Court disagreed. The Court found that the statute was “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.’” The Court stated that these informal interviews did not extend to opinions regarding causation and standard of care, and it held that this specific limitation could be imposed by the trial court because it did no more than “reflect the parameters of the statute[.]”

In the S.W. case, the Court of Appeals adopted its reasoning from Dean-Hayslett and quoted lengthily therefrom, coming to the same result. The Court held that the requirements regarding the court reporter, oath and filing of the transcript “transform[ed] the ex parte interviews authorized by the section into quasi-depositions in contravention of the legislative purpose of the statute,” thus striking down those limitations. The Court upheld the restriction related to relevant protected health information “[b]ecause this provision in the trial court’s order does no more than reiterate the parameters set-forth in the statute[.]”

Because these are the first Court of Appeals cases to address whether the trial court can limited a qualified protective order granted under § 29-26-121(f), they are important to note. Pursuant to these cases, it appears that a plaintiff can only seek limitations on these ex parte interviews based on a healthcare provider not having relevant information. Restrictions that go beyond the statutory limitations will not be allowed. On the other hand, though, defendants will be somewhat limited in the scope of these interviews. Defendants cannot use these interviews to inquire into healthcare topics beyond health information relevant to the litigation.

Interestingly, Judge Stafford wrote a separate concurring opinion in Dean-Hayslett, which he relied upon and adopted in a concurrence on S.W., expressing concern with the implications of Tenn. Code Ann. 29-26-121(f):

From my reading, Tennessee Code Annotated Section 29-26-121(f)(1)(B) only allows a court to    limit or prohibit an ex parte interview with a treating physician based upon a finding that the physician can offer no evidence relevant to the litigation. It provides no discretion to the trial court to place limits on ex parte interviews where there is high risk that irrelevant and prejudicial information could be inadvertently or intentionally disseminated, nor upon any other showing that such limitation or prohibition may be warranted based upon the facts of that particular case. By limiting the court’s power to place additional restrictions on the grant of qualified protective orders, as may be necessary depending on the circumstances of each individual case, I am disquieted by the fact that Tennessee Code Annotated Section 29-26-121(f)(1) deprives the court of one of its greatest strengths—the ability to evaluate cases on an individual basis, rather than by pandemic approval or prohibition.

Under these circumstances, while I discern no legal basis to dissent from the majority’s holding, given the current state of the law, I write separately to express my belief that this decision may constitute a step backward in patient privacy jurisprudence.

As the courts continue to interpret the HCLA and the legislature continues to mold and amend the statute, it will be interesting to see if this concern is heeded.


[1] Note that the fourth condition, found in § 29-26-121(f)(1)(C), was added to the Code in 2013. Because the Dean-Hayslett case was filed in 2012, it was decided under a previous version of the statute which did not include the voluntariness condition, but this did not affect the outcome of this case.

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