RHONDA WILLEFORD, ET AL. v. TIMOTHY P. KLEPPER, M.D., ET AL.
No. M2016-01491-SC-R11-CV
IN THE SUPREME COURT OF TENNESSEE AT NASHVILLE
February 28, 2020
February 6, 2019 Session; Appeal from the Circuit Court for Overton County; No. 2015-CV-7 Jonathan L. Young, Judge
We granted review in this case to determine whether
Philip N. Elbert and Jeffrey A. Zager, Nashville, Tennessee, for the Plaintiff/Appellant, Rhonda Willeford.
Dixie W. Cooper, Nashville, Tennessee, for the Defendants/Appellees, Timothy P. Klepper, M.D., and Overton Surgical Services.
Christopher A. Vrettos, Nashville, Tennessee, for the Defendant/Appellee, Livingston Regional Hospital, LLC, d/b/a Livingston Regional Hospital.
Peter B. Winterburn and Alexander H. Park, Memphis, Tennessee, for the amicus curiae, Tennessee Defense Lawyers Association.
W. Bryan Smith, Memphis, Tennessee; John Vail, Washington, D.C.; Brian G. Brooks, Greenbrier, Arkansas, for the amicus curiae, Tennessee Trial Lawyers Association.
OPINION
FACTUAL AND PROCEDURAL BACKGROUND1
The plaintiff, Rhonda Willeford, is the surviving daughter of the decedent in this case, Jewel Margaret Colson. On October 16, 2013, Ms. Colson was admitted to Defendant Livingston Regional Hospital‘s emergency room. Following a CT scan and examination, Ms. Colson was diagnosed with a bowel obstruction, among other things, and transferred to the Intensive Care Unit. The attending physician, Michael Cox, MD, ordered a surgical consult with Defendant Timothy Klepper, MD, a general surgeon, for treatment related to Ms. Colson‘s gastrointestinal problems. Over the next several days, Ms. Colson was treated and evaluated by Dr. Klepper and several other physicians. Despite treatment, Ms. Colson‘s health continued to decline, and she died on October 21, 2013.
In 2015, Ms. Willeford filed this healthcare liability wrongful death lawsuit on behalf of Ms. Colson (hereinafter “the decedent“). The lawsuit named as defendants Dr. Timothy P. Klepper, Overton Surgical Services assumed name of Algood Medical Clinic d/b/a AMG-Livingston, LLC, and Livingston Regional Hospital, LLC d/b/a Livingston Regional Hospital (collectively “the Defendants“). Ms. Willeford alleged that the Defendants’ negligent treatment of the decedent fell below the applicable standard of care and resulted in the decedent‘s death.2
In response, Ms. Willeford argued that the trial court should deny the Defendants’ motion because
The trial court granted the Defendants’ motion to conduct ex parte interviews with the decedent‘s non-party treating healthcare providers. The trial judge commented from the bench that he did not like
Ms. Willeford subsequently sought permission for an interlocutory appeal of the trial court‘s qualified protective order pursuant to
interlocutory appeal, but the Court of Appeals denied Ms. Willeford‘s application for permission to appeal. Ms. Willeford then sought permission to appeal to this Court, which we granted.
BACKGROUND ON EX PARTE INTERVIEWS
Before addressing Ms. Willeford‘s arguments, we find it helpful to provide a history of the developments in this area of the law.
In 1996, the United States Congress passed the Health Insurance Portability and Accountability Act (“HIPAA“),
The Department of Health and Human Services was given broad authority by Congress to then “promulgate rules and regulations protecting the privacy of patient health information.” Id. (citation omitted). These regulations “place strict limitations on the ability of certain health care providers to release a patient‘s medical records or discuss the patient‘s medical history without the express consent of the patient.” Id. (citation omitted).
Because “HIPAA‘s definition of health information includes oral information . . . , the statute covers oral interviews.” Caldwell v. Baptist Mem‘l Hosp., No. W2015-01076-COA-R10-CV, 2016 WL 3226431, at *5 (Tenn. Ct. App. June 3, 2016) (citing
Tennessee also has enacted legislation pertaining to the privacy of patients’ medical records and information, including the Medical Records Act,
Before HIPAA, state approaches to ex parte interviews with plaintiffs’ treating healthcare providers were not uniform. Compare Samms v. Dist. Court, Fourth Judicial Dist. of State of Colo., 908 P.2d 520, 526 (Colo. 1995) (holding that Colorado discovery rules permit defense counsel to conduct informal interviews with plaintiffs’ physicians), and Green v. Bloodsworth, 501 A.2d 1257, 1258-59 (Del. Super. Ct. 1985) (permitting informal discovery, including defense counsel‘s conferring directly with plaintiffs’ physicians), with Roosevelt Hotel Ltd. P‘ship v. Sweeney, 394 N.W.2d 353, 357 (Iowa 1986) (stating that the court “agree[d] with those jurisdictions that have refused to order the execution of waivers and ex parte interviews” and that its “discovery rules do not provide for such a procedure“), and Crist v. Moffatt, 389 S.E.2d 41, 47 (N.C. 1990) (holding that “defense counsel may not interview plaintiff‘s nonparty treating physicians privately without plaintiff‘s express consent“).
Since the enactment of HIPAA, the lack of uniformity as to ex parte interviews has continued. Several states allow defense counsel to conduct ex parte interviews with plaintiffs’ treating healthcare providers. See, e.g., Moreland v. Austin, 670 S.E.2d 68, 72 (Ga. 2008) (allowing informal interviews between defense counsel and plaintiff‘s treating physicians, as long as defense counsel “first obtain[s] a valid authorization[] or court order or otherwise comply with the provisions of
Even more states, however, prohibit ex parte interviews with plaintiffs’ treating healthcare providers. See, e.g., Hasan v. Garvar, 108 So. 3d 570, 578 (Fla. 2012) (holding Florida‘s patient confidentiality statute “prohibits ex parte meetings between nonparty treating physicians and others outside the confidential relationship whether or not they intend to discuss privileged or non-privileged matters without measures to absolutely protect the patient and the privilege“); Wood v. Am. Nat‘l Prop. & Cas. Ins. Co., 1 So. 3d 764, 768 (La. Ct. App. 2008) (recognizing that defendants may obtain patients’ medical information only through testimony at trial or use of “proper discovery methods,” which do not include ex parte communications); State ex rel. Proctor v. Messina, 320 S.W.3d 145, 157 (Mo. 2010) (interpreting HIPAA as not allowing ex parte communications “because the trial court has no general oversight of the meeting or any control over it“); Leavitt v. Siems, 330 P.3d 1, 8 (Nev. 2014) (“[W]e conclude that there is no need to allow ex parte communication with the opposing party‘s experts absent express consent.“); Sorensen v. Barbuto, 177 P.3d 614, 619 (Utah 2008) (prohibiting ex parte communications because “not doing so undermines patient expectations of physician-patient confidentiality” and “appropriately limiting the scope of a treating physician‘s disclosures requires judicial monitoring that cannot occur in the context of ex parte communications“); Youngs v. Peacehealth, 316 P.3d 1035, 1041-43 (Wash. 2014) (holding that its prior bar on ex parte communications, announced in Loudon v. Mhyre, 756 P.2d 138 (Wash. 1988), survived amendments to the state‘s physician-patient privilege statute). See also Harrold-Jones v. Drury, 422 P.3d 568, 577 (Alaska 2018) (holding that “formal discovery methods are more apt to comply with law and promote justice in the
Tennessee‘s Rules of Civil Procedure neither provide for nor prohibit ex parte interviews in discovery. In civil practice, however, voluntary ex parte interviews generally are “available for use with non-expert witnesses prior to formal depositions.” David L. Woodard, Shielding the Plaintiff and Physician: The Prohibition of Ex Parte Contacts with a Plaintiff‘s Treating Physician, 13 Campbell L. Rev. 233, 239 (1991).
Before the enactment of HIPAA and state legislation concerning the confidentiality of patient medical information, it was common practice in Tennessee for defense counsel to conduct ex parte interviews with plaintiffs’ treating physicians. See, e.g., Alessio v. Crook, 633 S.W.2d 770, 780 (Tenn. Ct. App. 1982) (referring to plaintiff‘s treating physician as “available to all parties” for interview), superseded by statute, 1996 Tenn. Pub. Acts ch. 862, as recognized in Givens v. Mullikin ex rel. Estate of McElwaney, 75 S.W.3d 383, 409 n.13 (Tenn. 2002); see also Alsip v. Johnson City Med. Ctr., No. E2004-00831-COA-R9-CV, 2005 WL 1536192, at *10 (Tenn. Ct. App. June 30, 2005) (“[D]efendants may be right when they contend that informal discussions
[between defense counsel and plaintiffs’ healthcare providers] were once the order of the day[.]“), aff‘d, 197 S.W.3d 722 (Tenn. 2006).
But practice in Tennessee changed with this Court‘s decision in Givens, 75 S.W.3d 383. In Givens, the plaintiff originally had filed suit in a separate case against an alleged tortfeasor for injuries sustained in a traffic accident. Id. at 391. The plaintiff later filed a lawsuit for vicarious liability against an alleged tortfeasor and his insurance carrier for their defense attorney‘s alleged abuse of the discovery process, alleging that the attorney had initiated private communications with the plaintiff‘s treating physician, which breached the physician‘s contract of confidentiality. Id. at 405.
The Givens Court observed Tennessee‘s enactment of several statutes requiring “physician[s] and others to keep a patient‘s medical records and identifying information confidential.”5 Id. at 407 (citing Medical Records Act,
The Givens opinion created confusion among attorneys in Tennessee. See, e.g., Jerry O. Potter, Can We Talk?, Tenn. B.J., Nov. 2002, at 15, 20 (“The effect of [Givens] is to create a crisis for attorneys who engage in the defense of health-related malpractice suits. Without question, this decision will make the defense of malpractice suits difficult at best and impossible in many situations.“); Bobby Russ,
Thus, the Court granted permission to appeal in Alsip v. Johnson City Medical Center in order “to clarify the meaning of our holding in Givens.” 197 S.W.3d 722, 723 (Tenn. 2006). In Alsip, the Court considered whether the trial court erred by allowing defense counsel to engage in ex parte interviews with the decedent‘s non-party treating physicians. Id. at 725.
The Alsip Court noted that Givens “recognized an implied covenant of confidentiality in medical-care contracts between treating physicians and their patients.” Id. (emphasis removed). The Court noted, however, that “[l]ike all contract terms,
however, the implied covenant of confidentiality becomes unenforceable when it offends public policy.” Id. at 726 (citing Planters Gin Co. v. Fed. Compress & Warehouse Co., 78 S.W.3d 885, 890 (Tenn. 2002)).
The Alsip Court explained that, since the formal methods of discovery pursuant to
Thus, the Court concluded, “Neither the law nor public policy requires the plaintiff to bear the risk of disclosure of irrelevant confidential medical information in informal, private interviews with opposing counsel and non-party doctors.” Id. at 730. Accordingly, “ex parte communications between the plaintiff‘s non-party physicians and defense attorneys are not allowed in the State of Tennessee.” Id. at 724.
In 2012, the General Assembly abrogated the holdings in Givens and Alsip by adding subsection (f) to
(1) Upon the filing of any “healthcare liability action,” as defined in
§ 29-26-101(a)(1) , the named defendant or defendants may petition the court for a qualified protective order allowing the defendant or defendants 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,” as defined by§ 29-26-101(a)(2) . Such petition shall be granted under the following conditions:(A) The petition must identify the treating healthcare provider or providers for whom the defendant or defendants seek a qualified protective order to conduct an interview;
(B) The claimant may file an objection seeking to limit or prohibit the defendant or defendants or the defendant‘s or defendants’ counsel from conducting the interviews, which may be
granted only upon good cause shown that a treating
healthcare provider does not possess relevant information as defined by the Tennessee Rules of Civil Procedure; and
(C) The qualified protective order shall expressly limit the dissemination of any protected health information to the litigation pending before the court.
(2) Any disclosure of protected health information by a healthcare provider in response to a court order under this section shall be deemed a permissible disclosure under Tennessee law, any Tennessee statute or rule of common law notwithstanding.
(3) Nothing in this part shall be construed as restricting in any way the right of a defendant or defendant‘s counsel from conducting interviews outside the presence of claimant or claimant‘s counsel with the defendant‘s own present or former employees, partners, or owners concerning a healthcare liability action.
Thus, the statute requires trial courts to permit defense counsel in healthcare liability actions to conduct ex parte interviews with non-party treating healthcare providers when defense counsel meets the conditions provided in the statute.
The Senate sponsor of the bill adding subsection (f) to
What‘s happened is that there has become a very uneven playing field between plaintiffs and defendants where plaintiffs have the right of unfettered access to health care providers in order to investigate their claims whereas defense lawyers don‘t have the same access to speak with health care providers absent permission from the patient or the claimant.
Hearing on S.B. 2789 Before the S. Judiciary Comm., 107th Gen. Assemb. (Tenn. Mar. 13, 2012) (statement of attorney witness Howard Hayden, at 52:23).
Witnesses also pointed out that, under the rules of civil procedure, there was no way to take a discovery-only deposition of a treating healthcare provider. See id. (statement of attorney witness Howard Hayden, at 1:02:15, emphasizing the need for defense counsel to have informal discussions with non-party treating physicians so that counsel can know in advance what the treating physicians would say in a deposition because physicians’ depositions are admissible at trial for all purposes under the rules).6
In 2013, the General Assembly added a provision to
In January 2015, the Tennessee Court of Appeals interpreted
Within months, the legislature amended the statute to abrogate the Court of Appeals’ holding by specifically providing that it was permissible for defense counsel to ask about “opinions as to the standard of care of any defendant, compliance with or breach of the standard, and causation of the alleged injury.” See 2015 Tenn. Pub. Acts ch. 268 (adding
ANALYSIS
Against this backdrop, we now consider the issue before this Court. Ms. Willeford argues that
case to take part in ex parte interviews with the decedent‘s non-party treating healthcare providers.
Standard of Review
Because issues of constitutionality and statutory construction are questions of law, we review them de novo with no presumption of correctness accorded to the legal conclusions of the courts below. See Waters v. Farr, 291 S.W.3d 873, 882 (Tenn. 2009); State v. Walls, 62 S.W.3d 119, 121 (Tenn. 2001).
Constitutionality of Section 29-26-121(f)
As this Court provided in State v. Lowe,
Article II, section 1, of the Tennessee Constitution provides that “The powers of the Government shall be divided into three distinct departments: the Legislative, Executive, and Judicial.”Section 2 of the same Article provides: “Limitation of powers. No person or persons belonging to one of these departments [set forth] shall exercise any of the powers properly belonging to either of the others, except in the cases herein directed or permitted.” With respect to the judicial department, the Tennessee Constitution specifies that “the judicial power of this State shall be vested in one Supreme Court and in such Circuit, Chancery and other inferior Courts as the Legislature shall from time to time, ordain and establish; in the Judges thereof, and in Justices of the Peace.”Tenn. Const. art. VI, § 1 . The Tennessee Supreme Court is a “direct creature of the Constitution” and “constitutes the supreme judicial tribunal of the [S]tate.” Barger v. Brock, 535 S.W.2d 337, 340 (Tenn. 1976). The Tennessee Supreme Court “and its jurisdiction cannot be interfered with by the other branches ofthe government. Its adjudications are final and conclusive upon all questions determined by it, save those reserved to the federal courts, which may be reviewed by the Supreme Court of the United States.” Clements v. Roberts, 144 Tenn. 152, 231 S.W. 902, 902 (1921) (emphasis added) (citing Miller v. Conlee, 37 Tenn. 432, 433 (1858); Dodds v. Duncan, 80 Tenn. 731, 734 (1884); State, to Use of Fletcher v. Gannaway, 84 Tenn. 124, 126 (1885)).
552 S.W.3d 842, 856 (Tenn. 2018).
“In evaluating the constitutionality of a statute, we begin with the presumption that an act of the General Assembly is constitutional.” Gallaher v. Elam, 104 S.W.3d 455, 459 (Tenn. 2003) (citing State v. Robinson, 29 S.W.3d 476, 479-480 (Tenn. 2000); Riggs v. Burson, 941 S.W.2d 44, 51 (Tenn. 1997)). “[I]n reviewing [a] statute for a possible
constitutional infirmity, we are required to indulge every presumption and resolve every doubt in favor of the constitutionality of the statute.” In re Burson, 909 S.W.2d 768, 775 (Tenn. 1995) (citing State v. Lyons, 802 S.W.2d 590, 592 (Tenn. 1990)).
“The Court must uphold the constitutionality of a statute wherever possible[.]” State v. McCoy, 459 S.W.3d 1, 8 (Tenn. 2014). “[T]he Court must be controlled by the fact that our Legislature may enact any law which our Constitution does not prohibit, and the Courts of this State cannot strike down one of its statutes unless it clearly appears that such statute does contravene some provision of the Constitution.” Holly v. City of Elizabethton, 241 S.W.2d 1001, 1004-05 (Tenn. 1951) (citing Joyner v. Priest, 117 S.W.2d 9, 11 (Tenn. 1938)).
This Court, however, has not spelled out clearly an analysis for considering a separation-of-powers issue in a case such as this when a statute effectively abrogates case law. In such a case, this Court must determine which entity has the ultimate authority over a particular legal issue.
We note that the Kentucky Supreme Court distinguishes between substantive law, which is under the authority of its legislature, and rules of practice and procedure, which are under the authority of its judiciary. Cabinet for Health & Family Servs. v. Chauvin, 316 S.W.3d 279, 285 (Ky. 2010) (citations omitted) (“[T]he legislature has the exclusive authority to enact substantive law, whereas this Court has the exclusive authority to enact ‘rules of practice and procedure for the Court of Justice.‘“).8 This distinction appears consistent with existing Tennessee law.
“By the terms of our constitution, ‘[o]nly the Supreme Court has the
other branch of government” because it “is inherent
Thus, the Court must determine whether the provisions in the statute at issue in this case are procedural or substantive in nature. The Kentucky Supreme Court has
In separating evidence law into substance and procedure, the best scholars
draw a distinction between rules that predominantly foster accuracy in fact-finding and rules that predominantly foster other objectives. They classify the latter as substantive and place privileges in that category.
Chauvin, 316 S.W.3d at 285 (quoting Robert G. Lawson, Modifying the Kentucky Rules of Evidence—A Separation of Powers Issue, 88 Ky. L.J. 525, 580 (2000)).
We also find guidance from the Florida Supreme Court‘s opinion in Massey v. David:
Of course, statutes at times may not appear to fall exclusively into either a procedural or substantive classification. We have held that where a statute contains some procedural aspects, but those provisions are so intimately intertwined with the substantive rights created by the statute, that statute will not impermissibly intrude on the practice and procedure of the courts in a constitutional sense, causing a constitutional challenge to fail. If a statute is clearly substantive and operates in an area of legitimate legislative concern, this Court will not hold that it constitutes an unconstitutional encroachment on the judicial branch. However, where a statute does not basically convey substantive rights, the procedural aspects of the statute cannot be deemed “incidental,” and that statute is unconstitutional. Moreover, where this Court has promulgated rules that relate to practice and procedure, and a statute provides a contrary practice or procedure, the statute is unconstitutional to the extent of the conflict.
Finally, where a statute has some substantive aspects, but the procedural requirements of the statute conflict with or interfere with the procedural mechanisms of the court system, those requirements are unconstitutional.
979 So. 2d 931, 937 (Fla. 2008) (internal citations and quotation marks omitted). See also In re SRBA Case No. 39576, 912 P.2d 614, 623 (Idaho 1995) (noting the court‘s previously adopted procedural versus substantive distinction, stating that substantive law “creates, defines, and regulates primary rights,” whereas “practice and procedure pertain to the essentially mechanical operations of the courts by which substantive law, rights, and remedies are effectuated“).
Moreover, this Court has provided clarity for understanding the procedural confines of the judiciary‘s authority:
Among these inherent judicial powers are the powers to hear facts, to decide the issues of fact made by the pleadings, and to decide the questions of law involved. As an essential corollary to these principles, any determination of what evidence is relevant, either logically or legally, to a fact at issue in litigation is a power that is entrusted solely to the care and exercise of the judiciary. Indeed, a “court‘s constitutional function to independently decide controversies is impaired if it must depend on, or is limited by, another branch of government in determining and evaluating the facts of the controversies it must adjudicate.” Consequently, any legislative enactment that purports to remove the discretion of a trial judge in making determinations of logical or legal relevancy impairs the independent operation of the judicial branch of government, and no such measure can be permitted to stand.
Mallard, 40 S.W.3d at 483 (internal citations omitted).
Looking to the statute at issue, we first note that the overarching purpose of the Tennessee Health Care Liability Act, codified at
Indeed, the judiciary has upheld the constitutionality of various provisions of this statute that prescribe procedure. See, e.g., Harrison, 569 S.W.2d at 827-828 (holding that “[s]tatutes providing for the limitation of actions are, apart from equitable principles, ‘exclusively the creatures of the legislative branch[,]’ ” and “it is not the role of this Court to pass upon the wisdom or lack thereof of the legislation under review” (citation omitted)); Newton v. Cox, 878 S.W.2d 105, 111 (Tenn. 1994) (“This Court has previously recognized that areas exist in which both the legislative and judicial branch have interests, and that in such areas both branches may exercise appropriate authority.“); Jackson v. HCA Health Servs. of Tenn., Inc., 383 S.W.3d 497, 506-07 (Tenn. Ct. App. 2012) (holding that
Second, we hold that the overriding purpose of the particular provision at issue,
(1) refuse to be a witness; (2) refuse to disclose any matter; (3) refuse to produce any object or writing; or (4) prevent another from being a witness or disclosing any matter or producing any object or writing.“). If the legislature has the authority to create a privilege, it is only logical that the legislature also has the authority to determine that a privilege, in a particular context, does not exist.
This Court‘s analysis in Alsip is consistent with this conclusion:
Although no testimonial privilege protecting doctor-patient communications has ever been recognized by this Court or declared by Tennessee statute, in Givens v. Mullikin, 75 S.W.3d 383 (Tenn. 2002), we recognized an implied covenant of confidentiality in medical-care contracts between treating physicians and their patients. This covenant forbids doctors from “releas[ing] without the patient‘s permission . . . any confidential information gained through the [physician-patient] relationship.” Givens, 75 S.W.3d at 407. We explained in Givens that the covenant of confidentiality arises not only from the implied understanding of the agreement between patient and doctor, but also from a policy concern that such private and potentially embarrassing information should be protected from public view. Id. (citing in support
Tennessee Code Annotated sections 63-2-101(b)(1) (1997),68-11-1502 (2001), and68-11-1503 (2001), which are indicative of the General Assembly‘s desire to keep confidential a patient‘s medical records and identifying information). Indeed, “[t]he relationship of patient to physician is a particularly intimate one [because] [t]o the physician we bare our bodies . . . in confidence that what is seen and heard will remain unknown to others.” Cua v. Morrison, 626 N.E.2d 581, 586 (Ind. Ct. App. 1993). For this reason “the public has a widespread belief that information given to a physician in confidence will not be disclosed to third parties absent legal compulsion, . . . and [thus] the public has a right to have this expectation realized.” Duquette v. Superior Court in and for County of Maricopa, 161 Ariz. 269, 778 P.2d 634, 640 (Ct. App. 1989).
197 S.W.3d at 725-26 (alterations in original). The Court then stated, however, that “the implied covenant of confidentiality becomes unenforceable when it offends public policy.” Id. at 726.
Because “the determination of public policy is primarily a function of the legislature,” Alcazar v. Hayes, 982 S.W.2d 845, 851 (Tenn. 1998), the public policy, as reflected in state law adopted by the legislature, can vitiate the covenant of confidentiality. Alsip, 197 S.W.3d at 726. “Thus, the covenant of confidentiality is not absolute and can be voided when its enforcement would compromise the needs of society.” Id.
Stated another way, this court in Alsip determined that the public policy interest of protecting confidentiality dictated this Court‘s need to prohibit ex parte communication. See id. at 730 (“Because ex parte communications unnecessarily endanger the integrity of the covenant of confidentiality between patient and physician by risking disclosure of the decedent‘s medical information not relevant to the lawsuit, and because the formal methods of discovery provided for in
However, by enacting the statute at issue, which expressly allows ex parte communication in this context, the legislature changed the overriding public policy
Because it was within the legislature‘s purview to modify the import of this public policy, we should yield to the change, even if the matter does touch upon an area within the province of the judiciary. See Biscan, 160 S.W.3d at 474 (“Although it is the province of this Court to prescribe rules for practice and procedure in the state‘s courts, where a decision of the legislature chiefly driven by public policy concerns infringes on that power we will generally defer to the judgment of the legislature.“); Bush v. State, 428 S.W.3d 1, 16 (Tenn. 2014) (“However, even though this Court is “supreme in fact as well as in name” when it comes to Tennessee‘s courts, our commitment to cooperation among the three branches of government has prompted us to acquiesce in and to apply statutes affecting the operation of the courts when they do not interfere with the courts’ adjudicative functions or otherwise impermissibly encroach on the Judicial Branch.” (citation and footnote omitted)). Moreover, “it is not the role of this Court to pass upon the wisdom or lack thereof of the legislation under review. In the absence of constitutional infirmity such matters are ones of policy solely for the legislature.” Harrison, 569 S.W.2d at 828 (citation omitted); see also State v. Howard, 504 S.W.3d 260, 270 (Tenn. 2016) (“[T]he General Assembly unquestionably has the constitutional and legislative authority to change the common law of this state[.]” (citation omitted)).
Thus, we hold that the overriding purpose of the statute at issue is within the authority of the legislature, or at least something to which the judiciary should yield if reasonably possible.
However, this conclusion does not end our inquiry. We also must address the specific language in
Under
“It is well settled that decisions with regard to pre-trial discovery matters rest within the sound discretion of the trial court.” Benton v. Snyder, 825 S.W.2d 409, 416 (Tenn. 1992). This authority includes the trial court‘s discretion to make discovery decisions based on the facts in a particular case. See, e.g., Doe 1 ex rel. Doe 1 v. Roman Catholic Diocese of Nashville, 154 S.W.3d 22, 42 (Tenn. 2005) (“Decisions concerning pretrial discovery are matters of a trial court‘s discretion.” (citing Benton, 825 S.W.2d at 416; Boyd v. Comdata Network, Inc., 88 S.W.3d 203, 211 (Tenn. Ct. App. 2002)))); see also Office of the Dist. Attorney of Phila. v. Bagwell, 155 A.3d 1119, 1138 (Pa. Commw. Ct. 2017) (“The discretion exercised by the court in granting or denying a discovery request goes straight to the heart of the judicial function and the prudential and ultimately constitutional constraints placed on judicial power.“).
By removing any and all discretion from the trial courts in the decision to grant protective orders, the legislature, in its enactment of
Severability
Having concluded that the overriding purpose of the statute is within the purview of the legislature but that a portion of the statute unconstitutionally infringes on the issues within the sole prerogative of the judiciary, we next look to determine whether the unconstitutional portion of the statute may be elided to preserve the remainder of the statute. “Under the doctrine of elision, a court may, under appropriate circumstances and in keeping with the expressed intent of a legislative body, elide an unconstitutional portion of a statute and find the remaining provisions to be constitutional and effective.” Lowe‘s Cos., Inc. v. Cardwell, 813 S.W.2d 428, 430 (Tenn. 1991). Thus, once the court can appropriately elide the “objectionable features” of the statute, the remainder is “valid
and enforceable.” Gibson Cnty. Special Sch. Dist. v. Palmer, 691 S.W.2d 544, 551 (Tenn. 1985).
We note that, as codified,
Recognizing the legislature‘s generally legitimate role to legislate in this area of the law, we conclude that elision is appropriate in this case. The overriding purpose of the statutory scheme can survive in this instance. Thus, we elide
When trial courts permit ex parte interviews with non-party treating healthcare providers, they must enter protective orders that comply with HIPAA. We note that
Similarly, to ensure compliance with HIPAA, we leave
limitations or changes on procedural rules related to the admissibility of any such evidence at trial.11 Thus, the remainder of
As elided,
(1) Upon the filing of any “healthcare liability action,” as defined in
§ 29-26-101 , the named defendant or defendants may petition the court for a qualified protective order allowing the defendant or defendants 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,” as defined by§ 29-26-101 .(A) The petition must identify the treating healthcare provider or providers for whom the defendant or defendants seek a qualified protective order to conduct an interview;
(B) The claimant may file an objection seeking to limit or prohibit the defendant or defendants or the defendant‘s or defendants’ counsel from conducting the interviews;
(C)(i) The qualified protective order shall expressly limit the dissemination of any protected health information to the litigation pending before the court and require the defendant or defendants who conducted the interview to return to the healthcare provider or destroy any protected health information obtained in the course of any such interview, including all copies, at the end of the litigation;
(ii) The qualified protective order shall expressly provide that participation in any such interview by a treating healthcare provider is voluntary.
(2) Any healthcare provider‘s disclosure of relevant information in response to a court order under this section, including, but not limited to, protected health information, opinions as to the standard of care of any defendant, compliance with or breach of the standard, and causation of the alleged injury, shall be deemed a permissible disclosure under Tennessee law.
(3) Nothing in this part shall be construed as restricting in any way the right of a defendant or defendant‘s counsel from conducting interviews outside the presence of claimant or claimant‘s counsel with the defendant‘s own present or former employees, partners, or owners concerning a healthcare liability action.
In summary, the elided statute allows defendants in healthcare liability actions to petition trial courts for qualified protective orders for ex parte interviews with non-party treating healthcare providers, but it leaves the manner of disposition of such petitions to the sound discretion of trial courts. See In re NHC-Nashville Fire Litigation, 293 S.W.3d 547, 560 (Tenn. Ct. App. 2008) (“Generally, the granting, denying, or modifying of a protective order relating to discovery procedures under Rule 26.03 rests within the sound discretion of the trial court.” (citations omitted)). Upon review, the Court is confident that the legislature “would have enacted”
CONCLUSION
We vacate the trial court‘s May 11, 2016 qualified protective order and remand the case to the trial court for reconsideration based upon the guidance provided in this
opinion. Costs of this appeal are assessed to the Defendant/Appellees, Timothy P. Klepper and Overton Surgical Services, and their sureties, for which execution may issue, if necessary.
JEFFREY S. BIVINS, CHIEF JUSTICE
Notes
Upon the filing of any “healthcare liability action,” as defined in
It is hereby declared that the sections, clauses, sentences and parts of the Tennessee Code are severable, are not matters of mutual essential inducement, and any of them shall be exscinded if the code would otherwise be unconstitutional or ineffective. If any one (1) or more sections, clauses, sentences or parts shall for any reason be questioned in any court, and shall be adjudged unconstitutional or invalid, such judgment shall not affect, impair or invalidate the remaining provisions thereof, but shall be confined in its operation to the specific provision or provisions so held unconstitutional or invalid, and the inapplicability or invalidity of any section, clause, sentence or part in any one (1) or more instances shall not be taken to affect or prejudice in any way its applicability or validity in any other instance.
(1) the name(s) of the health care provider(s) who may be interviewed; (2) the medical condition(s) at issue in the litigation regarding which the health care provider(s) may be interviewed; (3) the fact that the interview is at the request of the defendant, not the patient-plaintiff, and is for the purpose of assisting defense counsel in the litigation; and (4) the fact that the health care provider‘s participation in the interview is voluntary. In addition, when issuing or modifying such orders, trial courts should consider whether the circumstances—including any evidence indicating that ex parte interviews have or are expected to stray beyond their proper bounds—warrant requiring defense counsel to provide the patient-plaintiff with prior notice of, and the opportunity to appear at, scheduled interviews or, alternatively, requiring the transcription of the interview by a court reporter at the patient-plaintiff‘s request.
Id. (internal citations omitted).