597 S.W.3d 454
Tenn.2020Background:
- Decedent (Jewel Colson) was treated at Livingston Regional Hospital; her daughter Rhonda Willeford sued for wrongful death alleging negligent care by Dr. Klepper and associated providers.
- Defendants moved under Tenn. Code Ann. § 29-26-121(f) for a qualified protective order authorizing ex parte interviews of the decedent’s non‑party treating healthcare providers; the trial court granted the motion despite expressing concern about the statute.
- Willeford argued § 29-26-121(f) is unconstitutional because its mandatory language divests trial courts of their inherent discovery discretion, violating the Tennessee Constitution’s separation of powers.
- The statute (added in 2012 and amended subsequently) effectively overruled prior Tennessee case law (Givens and Alsip) that had prohibited ex parte interviews, and it required courts to grant petitions meeting statutory conditions, while including HIPAA‑compliant protective‑order limitations.
- The State and defendants defended the statute as a legitimate legislative exercise to adjust public policy and provide parity in access to treating‑provider information for defendants in health‑care liability cases.
- The Tennessee Supreme Court granted review to decide whether § 29-26-121(f) impermissibly encroaches on judicial power and, if so, whether the statute can be preserved by elision.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 29-26-121(f) violates the separation of powers by divesting trial courts of discovery discretion | Willeford: statute’s mandatory phrase (“Such petition shall be granted…”) removes trial‑court discretion over discovery and thus impinges on judicial power | Defendants/State: legislature may change public policy and create statutory exceptions to confidentiality; statute validly regulates substantive rights and discovery access | Court: statute unconstitutional as enacted to the extent it mandates courts to grant petitions and strips judicial discretion; violates separation of powers |
| Whether the statute is substantive (legislative) or procedural (judicial) in nature | Willeford: provision intrudes on procedural judicial functions (trial management, relevancy, discovery) | Defendants: statute addresses substantive public‑policy balance (access/equality) and HIPAA compliance, within legislative authority | Court: statute has substantive aspects (privilege/public policy) so legislature may act, but procedural command removing judicial discretion is impermissible |
| Whether the statute can be salvaged by severability/elision | Willeford: sought relief from mandatory grant language as unconstitutional | Defendants/State: urged upholding the statute as reflecting legislative intent to allow ex parte interviews subject to conditions | Court: applied elision doctrine—struck the mandatory clause and construed §29-26-121(f) as permissive; left HIPAA/protective‑order provisions intact; vacated the trial court’s protective order and remanded |
Key Cases Cited
- Givens v. Mullikin, 75 S.W.3d 383 (Tenn. 2002) (recognized an implied covenant of confidentiality in physician–patient treatment contracts)
- Alsip v. Johnson City Med. Ctr., 197 S.W.3d 722 (Tenn. 2006) (held ex parte communications with nonparty treating physicians were not allowed under Tennessee law)
- Mallard v. State, 40 S.W.3d 473 (Tenn. 2001) (described the judiciary’s inherent power over practice and procedure and the danger of legislative limits on relevancy/discretion)
- Lowe v. State, 552 S.W.3d 842 (Tenn. 2018) (explained separation of powers text and that the legislature cannot interfere with core judicial functions)
- Biscan v. Brown, 160 S.W.3d 462 (Tenn. 2005) (recognized that courts generally defer to legislative policy choices in areas of overlapping concern)
- Gibson Cnty. Special Sch. Dist. v. Palmer, 691 S.W.2d 544 (Tenn. 1985) (endorsed elision as a method to excise unconstitutional statutory provisions while preserving the remainder)