Tennessee Court of Appeals Addresses Constitutionality of Statute Providing for Ex Parte Interviews of Non-Party Health Care Providers in Medical Malpractice Lawsuits

Discovery is an important part of a Tennessee personal injury lawsuit. During this phase of litigation, the parties exchange certain information, such as the names of factual witnesses and the opinions of potential experts. When conducted appropriately, discovery can lead to a settlement of a case. As the parties learn more about the strengths and weaknesses of their opponents’ cases, there tends to be a “meeting of the minds” as concerns at least some of the issues. However, not all discovery is conducted in a manner that aids the parties in the settlement process – especially if it happens behind closed doors and outside of the presence of the plaintiff and his or her counsel.

Facts of the Case

In a recent case addressing the constitutionality of a statute, the plaintiff was the daughter of a woman who allegedly died as a result of the defendant medical providers’ negligence. The daughter filed a healthcare liability wrongful death lawsuit, asserting that the defendants’ medical treatment of her mother fell below the applicable standard of care and that this breach of duty was the proximate cause of her mother’s death. As the lawsuit progressed, the defendants filed a motion for a qualified protective order pursuant to Tennessee Code Annotated § 29-26-121(f), requesting that they be permitted to conduct interviews of certain healthcare providers who had provided medical treatment to the plaintiff’s mother but had not been named as defendants in the case. These interviews were to take place outside the presence of the attorneys who represented the plaintiff in her lawsuit.

The plaintiff objected to the defendants’ motion for the qualified protective order on the basis that  § 29-26-121(f) was unconstitutional. The trial court granted the defendants’ motions for the ex parte interviews, commenting that the legislature had overstepped its bounds in saying that “the court shall do something,” but opining that it was not a trial court judge’s place to declare a statute unconstitutional. The Tennessee Court of Appeals denied the plaintiff’s application for an interlocutory appeal, but the Tennessee Supreme Court granted her permission to seek review of the trial court’s ruling.

The Tennessee Supreme Court’s Ruling

In its analysis of the underlying issue, the court noted that the creation of a privilege, including the physician/patient privilege, was at least partially substantive in nature and was within the province of the legislature. The court went on to note that, if it was within the province of the legislature to create a privilege, then it was only logical that the legislature also had the authority to say that a particular privilege did not exist in a particular context. While the judiciary should yield to the legislature with regard to the overriding purpose of a statute such as the one at issue if possible, the court’s determined that its inquiry did not end there.

In the supreme court’s view, the problematic language of the statute was that it effectively stripped trial courts of their discretion in deciding whether to grant an ex parte order in a given case. It being well-settled Tennessee case law that decisions regarding pre-trial discovery rested in the sound discretion of the trial court, the state supreme court ruled that the legislature had overstepped its constitutional boundaries and violated the separation of powers clause in the state constitution in depriving the trial court of its discretion in discovery matters with the enactment of § 29-26-121(f).

Relying on the general severability statute, the court elided the statute to make it permissive rather than mandatory, thereby allowing defendants in healthcare liability actions to petition a trial court for a qualified protective order for ex parte interviews with non-party treating healthcare providers, but it left the disposition for such petitions to the trial court’s discretion. The court concluded by remanding the matter to the trial court for a determination as to whether the defendants’ petition should be granted in the instant case.

Speak to a Wrongful Death Attorney

If you have lost a spouse, parent, or child and believe that another’s negligence was the cause, you should talk to an attorney who handles wrongful death cases to see if you have a viable claim against the responsible party. Wrongful death lawsuits require a great deal of evidence, and strict time limits apply. Thus, it is very important that prompt legal action be taken. For an appointment to talk to an established east Tennessee wrongful death attorney about your case, call Attorney Mark Hartsoe at the Hartsoe Law Firm at 865-524-5657. We represent clients in Knoxville, Maryville, Oak Ridge, Clinton, Sevierville, Gatlinburg, and other cities throughout Tennessee.

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