Cheryl Hall v. James H. Crenshaw, M.D., The Jackson Clinic Professional Association
449 S.W.3d 463
Tenn. Ct. App.2014Background
- The Tennessee Court of Appeals addresses an interlocutory appeal about ex parte communications between defense counsel for a defendant medical entity (Jackson Clinic) and non-party physicians employed by that entity who treated the decedent.
- The decedent, Mark Emmett Hall, Jr., was treated by Jackson Clinic and Vanderbilt-affiliated physicians; his wife Cheryl Hall filed a healthcare liability action in May 2011 seeking damages for wrongful death.
- Drs. Cherry and Mariencheck, Jackson Clinic shareholders and employees who treated Hall, were not named as defendants; Jackson Clinic sought permission to meet ex parte with them to discuss treatment before depositions.
- The trial court denied the motion, relying on Alsip v. Johnson City Medical Center, which held that ex parte communications with non-party treating physicians are improper.
- The Tennessee Supreme Court’s rationale in Alsip/Givens balancing confidentiality against defense needs was used by the trial court; the Court of Appeals ultimately held that Jackson Clinic has an independent right to communicate with its own employees, and Alsip does not bar such ex parte communications here.
- The court reversed the trial court’s order and remanded for proceedings consistent with this opinion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the implied confidentiality covenant bars ex parte communications with the Clinic’s own physicians who treated Hall. | Hall contends confidentiality prohibits ex parte talks with non-party treating physicians. | Jackson Clinic argues employees’ knowledge is imputed to the Clinic; communications with them are allowed to prepare for depositions. | No; clinic employees may be ex parte conversations; Alsip does not apply. |
| Whether the clinic’s status as employer/owners of the treating physicians changes the confidentiality analysis. | Hall asserts no change; treating physicians are still non-party witnesses. | Employee-employer relationship creates independent communications rights for the Clinic. | Clinic may confer ex parte with its own employees. |
| Whether the clinic’s desire to communicate ex parte to prepare for depositions overrides patient confidentiality. | Plaintiff insists on formal discovery channels only. | Defendant’s need to defend itself allows private communications with its employees. | Rejected as to bar; employees may be consulted ex parte. |
Key Cases Cited
- Givens v. Mullikin ex rel. Estate of McElwaney, 75 S.W.3d 383 (Tenn. 2002) (implied covenant of confidentiality in physician-patient relationship; informal disclosures breach without consent unless subpoenaed)
- Alsip v. Johnson City Medical Center, 197 S.W.3d 722 (Tenn. 2006) (public policy and discovery balance; physician-patient confidentiality voided for discovery; defense may obtain information via formal discovery)
- Petrillo v. Syntex Laboratories, Inc., 499 N.E.2d 952 (Ill. App. Ct. 1986) (Petrillo restriction: Petrillo bar on ex parte communications with treating physicians when not basis for liability)
- Phoenix Children’s Hospital, Inc. v. Grant, 265 P.3d 417 (Ariz. Ct. App. Div. 1) (employer-employee relationship allows ex parte communications; not barred by plaintiff’s confidentiality)
- Estate of Stephens ex rel. Clark v. Galen Health Care, Inc., 911 So.2d 277 (Fla. Dist. Ct. App. 2005) (hospital can discuss with its employees; not a disclosure under doctor-patient privilege)
- Wade v. Vabnick-Wener, 922 F. Supp. 2d 679 (W.D. Tenn. 2010) (federal reliance on Estate of Stephens; corporate employer can discuss with its employees)