*1 Thompson Counsel for Mr. Billy

Peterbilt suggested may that OVERSTREET we con their appeal spite sider of its mootness because issue capable involved is repetition. acknowledged We have that TRW COMMERCIAL STEERING may consider moot issues are of al. DIVISION et great public importance or capa that are Supreme Tennessee, Court of recurring yet

ble of appellate evade re at Nashville. Rodgers, view. State v. held, We have never howev Feb. 2008 Session. er, that permitted we are to address moot solely they issues capable because are June view, In

repetition. our such an exception would swallow the rule. Accordingly, we adopt

decline to exception new to the

mootness doctrine and conclude no

existing exception applicable to Mr.

Thompson’s appeal. Mr. Thompson’s ap

peal therefore dismissed.

III. Conclusion

We conclude that lawsuit becomes

“pending” complaint when the filed. We that Vought’s

hold lawsuit against Mr. County

West Davidson was first “pending”

lawsuit because it was the first

to be filed. Accordingly, we remand Mr. County

West’s lawsuit to the Smith court addition,

for dismissal. we hold that

Mr. Thompson’s appeal has been rendered

moot final judgment of the David- County

son Chancery Accordingly, Court. Thompson’s appeal

Mr. is dismissed. appeals

Costs of these are taxed to the West,

appellee, Wayne Duell and to the

appellant, Terry Thompson, and their

sureties, which execution if issue

necessary.

Richard Lane Moore and Daniel H. IV, Rader, Cookeville, Tennessee, for the appellant, Steering TRW Commercial Divi- sion. $1,594per month he receives an additional Joseph Guy Butler E. Holli-

William disability benefits. man, Lafayette, Tennessee, appel- Security in Social for the lee, Billy Overstreet. years after his May two On retirement, complained Overstreet OPINION loss and practitioner hearing nurse J., WADE, R. delivered the GARY Dr. Scott Fortune ringing in his ears. court, in opinion of the which WILLIAM days later audiogram five conducted C.J., BARKER, M. M. JANICE had 40%a and concluded that Overstreet CLARK, HOLDER, and CORNELIA A. notified TRW loss. Overstreet hearing *4 KOCH, JR., J., JJ., joined. C. WILLIAM hearing claimed that his his condition and concurring. After employment. to his loss was related compensation, for In this claim workers’ being treating as the selected a motion defendant/employer the filed provided panel physicians from a of three parte an ex seeking permission to have examined TRW, Haynes by Dr. David the re- treating physician interview with Overstreet, a that he had determined plain- of the garding the medical condition hearing for permanent impairment 18.1% sought also tiff/employee. employer The impairment a for tinnitus loss and 5% the to submit requiring order ears). in He recommended (ringing the independent to an medical evaluation. his reviewing After work hearing aids. motion, and we trial court denied each The that Over- history, Haynes Dr. concluded granted employer’s for ex- application the caused, in part, hearing street’s loss was traordinary 10 of appeal pursuant to Rule by TRW. Neverthe- employment his of Appellate the Tennessee Rules Proce- less, compensa- the workers’ TRW denied Upon the con- dure. review of record and claim, complaint a tion and Overstreet filed law, applicable the hold sideration of County. Chancery Court of Smith (1) employer may not communi- Haynes, Dr. After examination employee’s treating cate ex with the him noti- provided with written Overstreet obtaining first a waiver physician without anything discuss about [to] fication “NOT of the covenant attorneys who attorney me with employee; employer’s from the and my for represent work and/or undergo for the worker to a medi- request carri- its workers’ insurance granted cal evaluation should be unless letter, by person, by (company) er request trial court determines that Later, TRW phone otherwise.” and/or unreasonable. to inter- attempts its was unsuccessful or Dr. Fortune Haynes view either Dr. History Facts Procedural procedures for discov- outside formal (“Overstreet”) Billy worked Overstreet Woodruff, Haynes’s Dr. office ery. Lucille Steering for Division TRW Commercial way manager, TRW informed (“TRW”) thirty-four years his re- until for Haynes Overstreet’s that Dr. could discuss During term May on his tirement Dr. in a deposition. condition would be Overstreet, high a school employment, supervisor, Tambra office Fortune’s front reading graduate with limited skills Ward, that Dr. Fortune notified TRW arithmetic, a a motor painter, was tow his medical to discuss would unable be dock, and an operator shipping present. Overstreet diagnosis without in- retirement assembly line worker. His asking a the trial $1,078 Be- then filed motion month. TRW per from TRW is come independent medical legs, court to order deep vein thrombosis his cause of evaluation its Dr. physician, Bronn whether the entitled Rayne. alternative, In the sought TRW physi- medical evaluation conducted permission question Haynes Dr. out cian choice. presence of Overstreet and his counsel. Standard of Review requests trial court denied both interlocutory refused an appeal. presented Because issues application TRW made for an law, extraordi- our questions review involve our nary appeal under Rule 10 of the Tennes- standard of review is novo de with no Appellate see Rules of Procedure: presumption of correctness. Perrin v. An extraordinary appeal sought Gaylord Entm’t on application in the discretion of (Tenn.2003); Russell, Ganzevoort appellate interlocutory court alone of The stan orders court lower from which an dard of review issues of fact is de novo Court, appeal Supreme lies to the Court record accompanied by pre of Appeals or Ap- Court Criminal sumption of correctness of the trial court’s *5 (1) peals: if the lower court has so far findings, preponderance unless the of the departed accepted from the and usual evidence is otherwise. Tenn.Code Ann. judicial course of as proceedings to re- 6—225(e)(2)(2005). § 50— quire review, immediate or if neces- Our resolution the dispute of also sary complete for determination of the depends upon statutory interpretation. action appeal provided on as otherwise “ precepts apply. Well defined most ‘[T]he in appellate these rules. The court principle statutory basic construction is necessary issue whatever order is to im- give legisla ascertain and effect to the plement review under this rule. unduly restricting tive intent without or 10(a). Tenn. P. RApp. asserts TRW that expanding coverage a statute’s beyond its injury Overstreet’s was not caused his ” scope.’ intended Houghton v. Aramark workplace he environment because did not (Tenn. Res., Inc., Educ. 90 S.W.3d 678 begin impairment to suffer from hearing 2002) State, (quoting Owens 908 S.W.2d years until two after his retirement. TRW (Tenn.1995)). legis In construing argues independent that testimony medical enactments, lative presume every we necessary will be any to advance of its in a meaning word has and purpose statute causation, theories of alternative such as given and should be full effect if obvi advancing age, Overstreet’s operation his Assembly ous intention of the General a riding ear protec- lawnmower without C.K.G., doing. not violated so In re tion, or noisy his occasional visits to casi- (Tenn.2005). S.W.3d ‘When the nos Tunica Vegas. and Las TRW sub- statutory language unambigu is clear and question mits that because the of causation ous, apply plain must its hinge expert proof, meaning will we its medical independent an use, medical evaluation is without accepted es- normal and a forced prepare adequately sential order to for limit interpretation expand that would or litigation. application.” statute’s Eastman Johnson, Co. Chem. 151 S.W.3d

In an effort to guidance establish instance, In that obli our important questions, these granted gation is to extraordinary language enforce the written appeal. The specific issues presented statutory are whether an without reference to the employer is broader intent, permitted parte history legislation, to conduct ex interview employee’s treating physician; with an other sources. Abels ex Hunt v. Genie rel. (Tenn. City Cen Inc., Alsip In Medical Johnson S.W.Sd Indus. ter, (Tenn.2006),this Court 2006). con implied covenant of

explained Ex I. Parte Communications communica fidentiality prohibits Treating Physician and the defense counsel tions between the In the physicians. non-party plaintiffs privilege is no There testimonial society’s analysis, this “balance[d] Court in Ten communications doctor-patient for for medical confidentiali desire legitimate Sutherland, 215 Tenn. Quarles v. nessee. for disclosure ... need full ty against [the] 251-52 information,” health plaintiffs’ relevant McElwaney, ex rel. Mullikin Givens prohibition com concluding that the however, (Tenn.2002), 383, 407-08 physicians outside of munications with acknowledged the existence this Court as would not serve patients presence covenant of be formal disadvantage [dis in view of “the arising and a out physician tween covery] prescribed Tennes procedures contract of treatment original 26.01 [such Rule of Civil Procedure see specifically precluded payment, one examination upon oral deposition as] with a firm em informal discussions law interrogatories, written questions, written patient’s ployed “[A] defend the claim: Id. at 727. admissions.”1 requests his her cove breaches confidentiality by divulging nant Alsip would Ostensibly, holding our consent, information, without patient’s communicat- prevent seem to TRW *6 through informal with oth conversations dis- Haynes normal ing with Dr. outside “pa Id. that ers.” at 409. We observed insists, however, covery procedures. TRW clearly physicians expect tients and now Alsip in two case differs from that this keep patient’s the physician will First, con- because the ways: fundamental confidential, expecta information and this be- medical services was made tract for patient at tion arises the time Haynes, Overstreet TRW and Dr. tween implied seeks treatment.” Id. at 407. The contract, no and had party not a to the was “releasing] covenant forbids doctors implied of con- to an covenant entitlement patient’s permission” “any con without the Givens, 407 75 at fidentiality. See S.W.3d gained through the fidential information of confi- implied that an covenant (stating Id. [physician-patient] relationship.” original con- dentiality arises “from Second, parties understanding payment”). “While tract of treatment implied to covenant of confi Act giving rise Tennessee’s Workers’ dentiality disclose to permits employers access authorizes specifically subpoena or mak- pursuant employees information court the medical information Act, order, would understanding does not include under which ing claims divulge confidentiality. in See permission this information “void” covenant (2)(B) 50-6-204(a)(l), formally patient’s without consent.” Tenn.Code (2005 Supp.2007). & Id. at 408-09. patient’s express unique procedure, absent the are not

1. The Tennessee courts civil general prohibition parte ex commu her their contact with consent counsel’s attorneys and nications between defendants’ Moffatt, treating physician.” v. 326 N.C. Crist emerging plaintiffs’ physicians. "The consen 41, 326, (1990) (citing Petrillo S.E.2d 45 389 position to the that defense coun sus adheres Inc., 581, Lab., 102 Syntex Ill.App.3d 148 to the formal methods discov sel is limited 172, (1986)). N.E.2d 952 Ill.Dec. 499 jurisdiction’s ery rules enumerated 632 Givens, parties, characterized the the intent of the but are instead of confidentiality implied obligations

covenant derived from as established under fact arising from the law. Id. at 154. One author mutual intent of describes this legal as a fiction that can arise in physician. 75 at S.W.3d 407 absence of an Jackson, actual contract or contract (quoting Angus v. City 968 implied in 42 804, Implied fact. C.J.S. S.W.2d (Tenn.Ct.App.1997)). 808 A (2007). Constructive Contracts 8 These contract in fact is one that arises quasi-eontractual grounded obligations are from legal “a inference from the facts and justice” in “reason and not depend do Paschall’s, circumstances of the case.” privity contract assent Dozier, 45, Inc. v. 219 Tenn. 407 S.W.2d party Angus, bound. at S.W.2d 150, (1966) (quoting Weatherly v. Am. Weatherly Agr. (citing American Chem. Co., Agric. Chem. 16 Tenn.App. Co., Tenn.App. 65 S.W.2d 592 (1933)). S.W.2d The doctrine is (1933)). While, contracts in law designed to effectuate the actual intent of applied are most often in situations involv the parties at the time contract was see, ing unjust enrichment, e.g., Freeman Givens, 407; See entered. at S.W.3d Industries, LLC v. Eastman Chemical Angus, 968 808. These con (Tenn.2005); 524-25 Whi tracts must be based on evidence sufficient Community Baptist tehaven Church offer, acceptance, show and intent (Tenn. Holloway, 973 S.W.2d 596-97 affect legal relations. 17 C.J.S. Contracts 1998), they also “a founded in § 6b statutory, official, customary duty.” indicated, As Overstreet chose Dr. County Corp., Giles First U.S. Haynes from list physicians of three Tenn. provided by all By appearances, TRW. Keener, (quoting William A. The Law of TRW had Haynes contracted with Dr. (1883)). Quasi-Contracts, 16 Traditional physicians other to examine and treat its ly, these contracts have been used as injured employees comply with the grounds awards, money damage how *7 terms of the Compen- Tennessee Workers’ ever, we compelling see no to pre reason § sation Act. See Tenn.Code Ann. 50-6- quasi-contractual clude the use of obli 204(a)(1) (stating that employer or “[t]he gations as a means conveying of other the employer’s agent shall furnish free of benefits, justice if requires. so With these charge to the employee such medical and mind, principles in we consider whether a treatment”). surgical The limited record implied contract in be applied law should us, however, before does not demonstrate physician-patient relationship in a any intent Overstreet create an im- compensation workers’ claim. plied confidentiality covenant of between The Tennessee Workers’ Haynes. Overstreet and Dr. The mutual Act in addresses detail the value of the intent necessary form a covenant of may information a doctor disclose to the confidentiality implied in fact is not evident employer. The of portion relevant Ten- from the record. nessee Code Annotated section 50-6- 204(a)(1) A confidentiality covenant of provides be as follows: tween and Dr. Haynes Overstreet also (a)(1) shall, physician upon request, [A] in implied law. There are two furnish to employer or to the em- types distinct implied of contracts: con ployer’s ... complete insurer a implied tracts in fact implied and contracts ... report injury, as to its the claimed Paschall’s, in law. at effect the employee, the medical in implied Contracts law not depend prescribed, do treatment an estimate of the insists, context, they required pensation if as TRW hospitalization, duration Moreover, the explicit.2 been any, and an itemized statement would have Assembly has enacted several charges for medical services date.... General public policy a favor- convey statutes informa- confidentiality of medical ing the (2)(B) in writing requested If 63-2-101(b)(l) §§ Ann. Tenn.Code tion. physician or insurer 68-11-1502, (2004 Supp.); & hospital shall also furnish subse- Privacy Protection In the Patients’ medical records quent prognosis reports, Act, legislature recognized that “[e]v- our charges at intervals of and statements receiving care ery patient entering (60) days. No such sixty not less than by the board facility a health care licensed developed in con- relevant information licensing for health care facilities has nection with treatment or examination right privacy of and care expectation by the sought for which facility.” such Tenn.Code Ann. received at privi- shall be a considered (2006). Further, § 68-11-1502 the Gener- employee’s leged communication. Assembly also has enacted statutes al required consent shall not be of medical records. limit the disclosure records, furnishing reports such (2004 63-2-101(b)(l) & Ann. Tenn.Code furnishing or hospital no view, statutes Supp.2007). our these incur report record shall a representative policy promoting are liability as result a thereof. in confidentiality medi- the maintenance (2)(B). 50-6-204(a)(l), Tenn.Code As- cal treatment. Because General un- Although much disclosure is in sembly privacy has enacted Act, permit none of the terms der provided comprehensive health care and communications in- statutory scheme for disclosure of treating physicians. the employee’s Compensa- formation under Workers’ absence, conspicuous From this we must Act, implied a cove- tion we hold that an the Generally Assembly infer that did not confidentiality law exists under nant intend such A familiar communications. these circumstances. statutory interpretation express- canon of expressio es: unius est exclusio alterius ruling recognized While our Givens (“to express thing one to exclude oth- fact, nothing covenant we find ers”). TRW, Andrews, See Inc. v. previous suggest cases to cove our 19, 28-29, U.S. S.Ct. 151 L.Ed.2d cannot be nant *8 (2001); 1, Strode, 339 232 State S.W.3d Indeed, “the that law. we observed 10 not confidentiality arises covenant understanding of the from the Assembly Had the General intended doctor, and but agreement patient all between physician-pa- eliminate assurances of confidentiality pri concern policy com- also from that tient the workers’ physician hospital shall also furnish sub- 2. TRW’s brief cites one sentence from the and paragraph in Tennessee Code sequent prognosis reports, middle of the records medical 50-6-204(2)(B): Annotated section "No such charges not and at intervals of statements developed in connection relevant information sixty days.” Ann. than Tenn.Code less with or examination for which treatment 50-6-204(a)(l), (2)(B). light pre- In sought is the shall sentence, in- the words "such relevant vious privileged be considered a communication.” reports, "prognosis medical formation” refers however, sentence, This out of context with- charges,” not and statements of records previous requested in out the "If sentence: all relevant information. writing insurer the the 634 potentially

vate and embarrassing informa who does not know the nature the confi- tion should protected public be from view.” elicited, dential disclosure about to be Alsip, risky. 197 at policy Asking physician, S.W.3d 726. The con the untrained in law, siderations the greater that we addressed in to assume Givens this burden is Alsip gamble are no less work and is unfair to physician.” relevant the the Employees ers’ compensation discouraged should not context. We maintain from “[a]ny seeking workers compensation time doctor for fear of undertakes the exposing their full history, regard- treatment of a medical patient, and the consensual relevancy, employer. less of relationship of their physician is es tablished ... the doctor warrants that protecting Aside employees’ from confidential information gained through history, against medical parte rules ex will relationship not be with released communications insulate both physicians Givens, patient’s permission.” out the employers’ attorneys liability at 407 (quoting Hammonds v. Aet allegations Givens, wrong-doing. See 25, na Cas. & Sur. 7 Ohio Misc. 243 S.W.3d at 408-11 (recognizing a cause of (1965)). F.Supp. This confiden action for both a breach tiality care-giving exists “[t]o because covenant of and inducement physician bare our bodies ... to breach a relationship); confidential see confidence that what seen and heard will also Loudon v. Mhyre, Wash.2d remain unknown others.” Alsip, 197 756 P.2d (recognizing that Morrison, (quoting Cua physician “a has an interest in avoiding 626 N.E.2d (Ind.Ct.App.1993)). wrongful during inadvertent disclosures ex interviews.”). parte Further, to bar infor Unique if parte concerns arise employee’s mal discussions medical permitted in communications are this con- place great condition should not too a bur rendering injuries text. When services for employer, considering den arising employment, out of employers through same information is available dis actually pay physicians. See TenmCode covery. ruling Our is consistent 50-6-204(a)(l). sense, In a Supreme North Carolina Court: “The pro physician owes a service to the against hibition unauthorized ex con in exchange compensation. for his To regulates only tacts how defense counsel some this call question would into whether may obtain information from a plaintiffs indepen- is free to exercise treating i.e., physician, it defense affects dent judgment. medical That concern methods, counsel’s not the substance of could be allowing exacerbated the em- Moffatt, what is discoverable.” Crist v. ployer to interview the physician outside 326 N.C. (quoting S.E.2d addition, employee’s presence. In in- Manion v. N.P.W. N.E. Medical Center of formal employee’s conversations about the (M.D.Pa. Inc., Pa. 676 F.Supp. present medical treatment risk inad- 1987)). vertent disclosure sensitive irrelevant reasons, information. Roosevelt Hotel For all of these we hold *9 Partnership Limited v. Sweeney, 394 implied confidentiality covenant of arises (Iowa 1986), N.W.2d the Iowa employee between an any physician and noted, Supreme “Placing Court the burden by employer pursuant the to supplied the determining of an relevancy attorney, Compensation Tennessee Act.3 Workers’ suggests against we "privilege The concurrence could reach a non-disclosure.” While through legal the respectfully acknowledge point same result the we mechanisms of this view, First, "physician’s duty of a of and non-disclosure” we decline to take this route. his contrac patient maintains does because the implied law and The covenant confidentiality of in right tual to the con- mutual intent of depend not on the to that does relating his health formation of To that covenants tracting parties. hold Alsip, the claim. pertain not the confidentiality always arise irom must Moffatt, Crist (quoting at 727-28 S.W.3d time of parties mutual intent of the the (1990)); 41, 44 326 N.C. 389 S.E.2d view, would payment, contract our Lab., Inc., Syntex accord Petrillo elevate form over substance. 581,102 N.E.2d Ill.Dec. Ill.App.3d if an argues next that even TRW (1986). ratio By of the same 952, 959 use exists, implied covenant of making workers’ com nale, a of the the terms Workers’ entitled to the im claim is still pensation portions of certain requiring Act disclosure confidentiality, even plied of covenant information employee’s may request and re though trumps confidentiality. disagree. We records, We reports, medical prognosis ceive “ previously ‘the confi confirmed charges from the and statements of treat re physician-patient patient’s dential nature ing without the consent. 50-6-204(a)(l), See Tenn.Code § in though medical Ann. lationship remains even ” (2005 (2)(B) By accepting subject discovery’ Supp.2007). & formation is Cases, argued ap Materials and Problems parties case Health Law: both from the 2004) (5th ("The proach Privacy of an covenant of confidential HIPAA ed. Second, ity. hard-pressed we would be right give people Regulation not does privilege a in the Tennessee Code. find such complaint a person A must file written sue. dealing part the Tennessee Code with The Secretary Ser of Health and Human with regard evi privileged communications Rights. Civil It then vices via the Office for testi dence and witnesses does not include a Secretary's investi discretion to within the physician-patient privilege. Tenn monial Fourth, gate complaint.”). there (2007). §§ Code Ann. 24-1-201 -211 duty physician's where a arise circumstances specific “privilege” term is a and well-defined physi would clash with a of non-disclosure legal community term of art in the and has persons duty to third cian’s warn identifiable recognized many jurisdictions. been other emanating a against foreseeable risks See, Lowell, e.g., Aufrichtig v. 85 N.Y.2d Daniel, patient’s illness. See Bradshaw 401, 404 626 N.Y.S.2d (1995). 650 N.E.2d contrast, S.W.2d legislature Had our intended to enact previously we have noted privilege, Assembly, being a the General confidentiality would create a not covenant lexicon, legal likely versed in the would have Givens, barrier in these situations. Indeed, precise “privilege.” used the term Fifth, practical we little at 409. find specifically the Tennessee Code Annotated in imposed tangible duty areas, difference between cludes this term of art in other such as (approach implied contractual covenant psychologist-patient privilege. Tenn.Code imposed by a (2007). majority) duty "privi 63-11-213 Instead of lege,” relationship arising fiduciary cited the concurrence out of contract the statutes Thus, concurrence). patients “expectation note that have an (approach under Third, privacy.” portion decisis, we do not find of stare the doctrine Portability and Accountabil Health Insurance sufficiently compelling to deviate from reason ("HIPAA”) dealing ity priva Act of 1996 approach previously "The have used. convey remedy cy regulation not does power this Court to overrule former deci rather, parties, are re private but violations very sparingly exercised sions 'is ” Secretary and Human solved of Health compelling.’ In re Es when the reason 160.306, §§ 160.312 Services. 45 CFR McFarland, 299, 306 tate of a civil A violation of HIPAAresults in Sears, (Tenn.2005) (quoting Edingbourgh Nothing HIPAA fine. 45 CFR 160.402. 206 Tenn. & Roebuck *10 "fiduciary duty suggests there is a federal (1960)). “privilege against non-disclosure” or federal Furrow, al., Barry et R. non-disclosure.” See medical provided by benefits employer, the or accept examination to the medical or an employee necessarily consents to dis specialized medical services which the close certain medical information that to furnish under confidential, would otherwise be but Ten provisions law, injured the of this such nessee Code Annotated section 50-6-204 employee’s right to shall sets the limits of the disclosure. Air C.fi suspended be and no compensation shall (“[T]he svp, 197 scope the due and payable injured while plaintiffs’ by consent must be determined refusal, employee continues such express the terms the Tennessee Rules added). (emphasis argues TRW that this Procedure, of Civil prescribe which do not statutory right to have the worker exam- communications.”). Access to by employer’s physician ined the in subsec- beyond medical statutory information the (d)(1) separate tion distinct from the requires Simply mandate consent. be employer’s obligation to furnish medical cause that opens statute some in medical (a)(1). treatment under subsection TRW to employers formation does not void the also cites Tennessee Rule of Civil Proce- regard covenant of with to dure 35.01: other information. physical When the mental or condition hold, therefore, We that other than (including the of a group) party, blood or through discovery the procedures, TRW is person of a or custody under the “a limited to complete report medical ... legal party, control controver- injury, upon as the claimed its effect sy, the court in pend- which the action is employee, pre- the medical treatment ing may party submit to a order the scribed, an estimate of the duration of by physical or mental examination required hospitalization, any, if and an suitably licensed or certified examiner or charges itemized statement for medical produce for person examination date,” services to as “subsequent well as custody legal his her control. The prognosis reports, medical records and order be made on motion of charges_” statements TenmCode good cause shown and notice to the 6—204(a)(1),(2)(B); see also 50— person parties to be examined and all 23.01; Alsip, Tenn. R. Civ. P. specify time, place, shall man- at 727. correctly The trial court denied ex ner, conditions, scope exami- parte communications between TRW and persons by nation person Haynes. Dr. whom it is to be made. Independent

II. Medical Evaluation view, plain reading In our Tennessee Annotated 50-6- Code section argues TRW next the trial court compel gives by erred declining order Overstreet to employee undergo an independent an independent submit to medical exami- evaluation, long points request so as nation. It to Tennessee An- Code 50-6-204(d), previously interpret notated section is “reasonable.” We pro- which vides in ed this part: language relevant same Trent v. Ameri can 185 Tenn. Service injured employee The must submit (1947):

to examination physi- requested cian at all reasonable times if provision purpose where- employer.... to do so injured comply must employee injured If the any refuses to “with reasonable for an ex- request comply request reasonable amination” “at all times” is reasonable *11 the others, right employer has purpose, among the obviously for by a doctor or a employer employee to the fair examined furnishing ascertaining if and when the for the choosing means of of his entirely from employee has recovered his having reason of own very obvious employer is injury the which the not he whether or physician determine ascertaining compensation or of paying injured as he employee is thinks the the ailments which the from whether evidence provides then the claims. This period suffers at some subse- employee employee the con on behalf of pro and injury injury the is due to that quent to for the trier facts employer other cause not connected or some determination. weigh and reach his employment. with his or her Grant, Co. v. (citing at 47 Atlas Powder Id. § 6875 (quoting Tenn.Code Ann. Id. at 303 (1956)). 200 Tenn. 293 S.W.2d (1934)). purpose, to further this In order Compensa Tennessee’s Workers’ While discre- trial courts have been afforded the since changed significantly Act has tion tionary authority determine whether Trent, language in Stubblefield request for examination is rea- 50-6- Code Annotated section Tennessee are, however, guiding sonable. There right to have employer the giving the principles: at all reasonable employee examined reasonably appears it [W]hen times, In our as essentially the same. is due to employee affliction of the sessment, of Tennes the current version in arising cause not out of and some Act provides see’s Workers’ request employment, course of then a to have the right with the employer necessary examination as for such will of its examined a doctor employee whether the illness is due to determine is request It when the choosing. unreasonable, cause not if it sat- employer that the cannot ex unreasonable isfactorily appears without contradiction stated, right. judge the trial As ercise an conducting of such examina- determining with discretion is vested tion not with appreciable attended the exa whether the circumstances warrant suffering pain danger or or to life or Flooring v. Mar mination.4 Tibbals Co. health. cum, Tenn. 404 S.W.2d Trent, 304-05. (1966). an interpreted We instance, the trial court In this employee examine Stubblefield should not be enti simply found “[TRW] Paving 215 Tenn. Hot Mix medical evaluation independent tled an Stubblefield, Rayne Dr. Bronn and denies argued that the trial court erred court not address the same.” The trial did by ordering him travel Coffee request. Nothing reasonableness of the (separated in County County to Davidson independent medi suggests the record County) upon a distance Rutherford “appreciable would cause cal evaluation to conduct motion suffering danger to life pain examination. Id. at independent medical as was the case as health” Overstreet 46^47. We ruled follows: request and the re- 50-6- must be reasonable In Tennessee Code Annotated section reasonable, request requires that the as a quested subsection must be examination whole, time[]” be made at "reasonable and subsec- surrounding light of circum- tion states that it must be “reasonable stances. timing request.” indicates that the This *12 638 Trent,

Trent. time, manner, conditions, 206 S.W.2d 304. Fur- place, ther, Overstreet sug- has offered no real scope of the examination person and the gestions why as to TRW should be denied persons it whom is to be made.” Id. statutory their right. Once the moving party a establishes men- tal physical “in condition controversy”

By contesting liability, an employ cause,” and “good gives er rule the trial does not forfeit the entitlement to com pel employee to submit to an court exami discretion to order a medical exami- nation conducted nation.5 employer’s choosing. Id. When causation First, because the cause Overstreet’s in dispute, standards of fairness lend hearing primary dispute loss is the in this notion employ themselves case, physical condition Overstreet er should have expert the benefit an is “in controversy.” regard With to the opportunity who has had the to examine the employee’s alleged injury. second when question, See Thom a trial court finds Co., as Aetna & Cas. 812 S.W.2d that an has made a reasonable Life 278, (Tenn.1991) (“Medical 283 causation request for examination under Tennessee permanency injury must be es 50-6-204(d), Code Annotated section by expert tablished most cases qualifies “good also as cause” under Rule testimony.”). This is especially true prerequisites 35.01. Once the two of Rule when, Act, any under the terms of our established, 35.01 been the trial court reasonable doubt as the cause of an has the discretion to order medical evalu- injury will be construed favor of the (“[T]he ation. Tenn. R. P. Civ. 35.01 court See, employee. e.g., White v.Werthan In pending which the action order dus., 158, 824 (Tenn.1992); 159 party physical submit to a or mental Williams Corp., Dev. Preferred examination.”) added). (emphasis Unlike Tenn. Rule 35.01 motions made cases outside reasons, For these we hold that trial context, the workers’ compensation howev- by denying court erred request' TRWs er, Tennessee Code Annotated section 50- conduct a medical evaluation. 6-204(d) provides employer a qualified We next consider whether TRW made a employee have the to a submit proper request under Tennessee Rule of Stubblefield, reasonable examination. terms, By Civil Procedure 35.01. its own Thus, 47. compen- S.W.2d at in a workers’ Rule requires moving 35.01 party to case, sation a trial court does not have establish two things: “the mental or discretion to deny Rule 35.01 motion physical condition ... of a party finding after that the employer’s request is controversy” “good cause” for the reasonable. See TenmCode Ann. 50-6- examination exists. Tenn. R. Civ. P. 35.01. 204(d) party (stating that an moving provide must also “must notice ” to the party being and “specify examined submit request to the for ex- 1970) (“Even Because Tennessee Rule was 'good modeled when cause’ and 'in Rule Civil met, Federal Procedure controversy’ requirements are it is still in interpretation federal courts' of this rule the sound discretion of the trial court whether light sheds some on the Fed Tennessee rule. examination.”); to order the see O’Sulli also recognized eral courts have that even when Rivera, (D.N.M. van v. 229 F.R.D. met, requirements of Rule 35 are the trial 2004); Shirsat v. Mutual Pharm. deciding court still has discretion in whether (E.D.Pa.1996); F.R.D. Stuart Bur Hardy to order a medical See examination. ford, (N.D.Okla.1967). 42 F.R.D. Riser, (N.D.Miss. F.Supp. times”) (em- undergo medical injured employee animation “at all reasonable *13 added). employer’s the by physician a phasis evaluation may challenge choosing. employee The support argument of his In of the light request the as unreasonable mo properly the trial court denied TRW’s deter- If the trial court circumstances. evaluation, independent for an Over- tion reasonable, the em- request the is mines heavily Long on Tri street most relies to a evaluation must submit medical ployee (Tenn. Indus., Ltd., 996 Con employ- the of the by conducted 1999),6 filed a motion employer the where of the Any part er’s choice. failure on had suffered require employee, who to an order comply with such employee to surgery, for which he had herniated discs a of the workers’ may result in dismissal examination aby undergo an additional to claim. See Tenn.Code compensation Id. at 178. The trial court neurosurgeon. (stat- (2005 50-6-204(d)(8) Supp.2007) & motion, granted post but held that the ing injured employee refuses that “[i]f examination should be conducted operative for any request reasonable comply to with “already by the internist who had [been] accept to examination initially by Long selected from the list specialized medical services which em- provided by to her instead of the Tri-Con” to furnish under the ployer is Id. 179. employer’s physician of choice. at law, injured this em- provisions of employee appealed, arguing When to shall be ployee’s right expertise the internist did not have in neu request is suspended”). employer’s If the affirmed, rology orthopedics, we con unreasonable, deny should the trial court cluding employer to failed demon specifically state its request, must but is Long strate an abuse of discretion.7 Id. in the record. The standard reasons case, distinguishable on the facts. In that finding court’s appeal on of the trial review we listed other reasons for our refusal Tibbals, of direction. abuse Further, not grant Long relief. Id. did at 500. interlocutory appeal. involve an In event, interpreted to Long should not be Conclusion proposition stand for the that a reasonable trial court is affirmed The order of the request by employer for a medical eval denial part. reversed part and uation is satisfied request for communica- TRWs employee’s evaluation conducted affirmed. The Haynes with Dr. tions treating physician. Fundamental fairness request to order a medical denial of TRW’s ex employers, grounds dictates that when reversed, and the cause evaluation is ist, independently opportunity for determi- the trial court remanded to investigate the merits of claim. for an request their nation of whether evaluation is reasonable. summary, independent we hold that an to TRW statutory compel appeal are taxed has a Costs Corp., a favorable result.” Id. cites Martin Lear receives 6. Overstreet also agree, Mar- generally Because that factor 632. While (f) not tin deals with subsection subsec- judge trial when should considered (d) tion of Tennessee Code Annotated section request assessing whether an 50-6-204, holding our in Martin does not is reasonable. examination points dicta control this case. Overstreet Martin, legisla- where we that "the stated Long not address the did Our decision employers, greater ture did not want confidentiality between covenant resources, many injured employees send physician. physical physicians for examinations until Division, Steering Commercial origin,1 which of ancient the courts have been issue, execution if necessary. neither regard consistent nor clear with legal

the source of or the basis for this duty. KOCH, JR., J., WILLIAM C.

concurring. In the absence statutes imposing a duty of physician, non-disclosure I concur with the Court’s conclusion *14 held in Court source of that, in the of litigation regarding context duty this could be “an implied contract a claim under the Workers’ parties between the that the results of the Act, and the law- examination remain would confidential.” yer are not entitled to ex parte com- Quarles Sutherland, 651, 657, 215 Tenn. munications physician treating with the (1965). The Court employee. However, my I base con- availability also limited the implied of this on legal clusion principles that differ from duty patients had paid physi- who the “contract implied theory in law” relied Quarles Suther- cian for their services. by upon the Court. land, 657-58, 215 Tenn. at 389 S.W.2d at dispute There is little today the law Despite the fact that the Tennessee imposes duty a a physician on not to dis- Assembly Congress General and have now patient’s close confidential health infor- defining physician’s enacted statutes mation unless the expressly duty or im- of non-disclosure of confidential pliedly consents or unless law requires information,2 health this Court has contin- permits disclosure. duty While this ued to adhere the implied contract3 ment, 1.In physi- Lord Mansfield Privileged held Physi- Communications to patient’s cians, cian could be (1921). to reveal a 30 Yale LJ. 289 bigamy confidences in a trial. He stated that surgeon voluntarily "[i]f was to reveal ... Portability 2. See Health Insurance and Ac- secrets, sure, guilty to be he would aof 104-191, countability Act of Pub.L. No. indiscretion; great breach of honor and but (codified 110 Stat.1936 as amended in scat- justice, to have that information in a court of 18, 26, U.S.C.) tered sections of 29 & 42 do, by which law of the land he is bound to “HIPAA”]; Rule, Privacy [hereinafter HIPAA imputed will never be to him as indiscre- (2007); §§ 45 C.F.R. Tenn.Code Kingston, tion whatever.” Rex Duchess (b)(1) (Supp.2007) ("Except Ann. 63—2—101 (H.L.1776). 20 How. St. Tr. 572-73 law, provided by patient's as otherwise such later, Decades Scotland’s Court Session public medical records not shall constitute dispelled the notion that the unauthorized dis- records, nothing part contained patient’s closure of a merely confidences was impair any privilege shall be deemed to a "breach of honor.” The case involved a confidentiality patients, conferred law physician's disclosure to a minister of the heirs.”); personal representatives their premarital apparent conception of a child (2006) ("Every Tenn.Code Ann. 68-11-1502 expelled plaintiff that caused the to be patient entering receiving care at a health the church. Lord Fullerton held "that a med- facility care for licensed board licens- man, delicacy ical consulted in a matter ing expectation care health facilities has the gratuitously unnecessarily can make [the privacy of and received care subject public information] the communi- facility.”); see also Ann. Tenn.Code cation, incurring any imputation without be- § 68-11-1503 honor, yond what is called a breach of any liability without to a claim redress in a law, 3. The Court proposition court of continues to use the terms “im- is a to which the give plied "implied hardly Court will contract” and their covenant" inter- countenance.” C.D., 177, 179-80, changeably A.B. v. despite significant legal 14 D. 7 Scots Rev. differ- (H.L.Ser.) (Ct.Sess.1851). Rep. See Com- ence between the two. justification by fidentiality. It found this physician’s as theory the basis for duty. the contract holding that implied in law.4 The “law” was recognized the exis- this Court implied contract of confidentiali- which the implied tence of an contract of confiden- ty recognized appears this case rests tiality arising original from “the contract Givens v. 2—101(b)(1), payment.” of treatment §§ 68- be Tenn.Code 63— McElwaney, rel. Mullikin ex 11-1502, -1503. (Tenn.2002). 383, 407 reaffirm- Court “implied contract” and The use of the it holding years four later when ed this have been “implied covenant” theories held that the covenant of confiden- the commen- questioned the courts and tiality prevented communications frequently The concerns most tators.5 the plaintiffs between defense counsel and evidentiary prob- include: voiced City Med. physician. Alsip Johnson contracts, lems associated with Ctr., 725-30 *15 difficulty applying of the theories to case, both the Givens As construed companies, maintenance insurance health Alsip and the decisions involved contracts banks, epidemiolo- organizations, blood fact, implied in that were that contracts bodies, other gists, accreditation and sec- that were inferable from the facts of each (3) disclosures, the limitation ondary case. for contract of the remedies available limited duty Because Court had claims.6 to physicians of non-disclosure who were

being paid by their Court patients, implied using theory of Instead of could not base its decision this case physician’s duty contract as the basis of Alsip the Givens either decision. patient’s confidential not to disclose a There no evidence that Mr. Overstreet patient ex- health information unless Haynes Dr. him pay contracted with or unless the pressly impliedly or consents he anything for the medical treatment re- disclosure, I would requires permits law or contrary, all that agree ceived. To duty physi- on the nature of the base the Mr. paid nothing Overstreet for the treat- itself. cian-patient relationship Haynes. ment he received from Dr. Ac- relationship fiduciary A or confidential cordingly, Court to fash- was implied express or can exist without legal justification finding ion another relationship7 when of an contract of contract. The arises implied existence con- Bank, 706, 696 P.2d 4. A contract in law a contract "im- First Interstate 298 Or. law, 527, posed by operation (noting of and not because of the doctrinal 528-29 that any inferences that be drawn about the can limits on contract law make the con- Garner, Bryan A. A facts of a case.” See inconvenient). theory tract (2d Usage Dictionary Legal 423 Modem 1995). Gilles, Ed. See, e.g., Betrayed: M. 6. Susan Promises Remedy aas Inva Breach of Confidence See, e.g., Hosp., v. Biddle Warren Gen. 86 1, Privacy, 43 Buff. 25-32 sions L.Rev. 518, 395, Ohio St.3d 715 N.E.2d 523 Comment, Parmet, (1995); Wendy E. 16 "fítfting] (comparing the theories round 265, (1981); Alan C.R.-C.L.L.Rev. 287 Harv. square observing peg into a hole” and Note, Vickery, B. An Breach of Confidence: purpose, they are “ill-suited for the and their 1426, Tort, Emerging 82 Colum. L.Rev. Elder, contrived”); application A. Pri- David (1982). 1444-47 (2002) (characterizing § vacy Torts 5:2 best”); at Jes- "awkward fiction[s] theories as fiduciary relationships are confidential 7. All Berg, Legal and Ethical sica Grave Secrets: relation- relationships, but not all confidential Confidentiality, Analysis Postmortem fiduciary relationships. fiduciary are A ships 81, (2001) (observing that the Conn. L.Rev. relationship, legal relationship connotes a "shaky provided a for confi- theories basis” relationship fi- Humphers includes not dentiality v. confidential protections); see also Leathers, person reposes special 292, 298, one trust confi Turner v. 191 Tenn. person8 dence another 269, (1950); other 232 S.W.2d see also Ison person fiduciary to as McFall, 326, 360, v. Tenn.App. —the —undertakes responsibility sume for the affairs 243, party.9 person other whom the fiduciary One of the physi duties that a imposed trust and confidence is is under a cian he assumes when or she undertakes duty give act for and to advice for the patient duty treat a is the to refrain person benefit the other on matters disclosing patient’s confidential within the scope relationship. health information unless the ex Marianelli, McRedmond Estate pressly impliedly consents unless the 730, 738 (Tenn.Ct.App.2000); Re requires law permits disclosure. See (Second) statement Torts cmt. a Method, Baylaender 610, Ill.App.3d (1979). Fiduciary highest duties are the 797, 171 Ill.Dec. 594 N.E.2d 1324-25 duty imposed by standard of law. First (1992); Devine, Alberts v. 395 Mass. Tenn. Bank Nat’l Ass’n v. C.T. Resorts (1985); 479 N.E.2d 118-20 State ex Co., *5; 1995 WL 21 Tennessee rel. Cunningham, Dean v. Practice: Contract Law and Practice (Mo.2006); Barbuto, 566-68 Sorensen 6.14, at 504. (Utah 2008); 177 P.3d 617-18 Morris Patients physi bear their bodies to their Consolidation Coal 191 W.Va. *16 cians with expectation that what the (1994). 648, 446 S.E.2d 651-54 The scope physician hears and sees will remain un fiduciary duty this depends upon the to known others. v. Alsip City Johnson particular any, if agreement, between the Ctr., Med. 197 at 726 (quoting S.W.3d Cua patient and the physician and Morrison, (Ind.Ct. 581, v. 626 N.E.2d 586 applicable state and federal statutes and otherwise, App.1993)). patients If it were regulations. freely would be reluctant to their disclose The Court appropriately recognized has symptoms and to physi conditions their Assembly that the Tennessee General has proper cians order to receive treatment. suggest public poli- enacted statutes that Williams, Hague 328, v. 37 N.J. 181 A.2d cy favoring the pa- non-disclosure of 345, Accordingly, long 349 we have tient’s confidential health information. recognized physicians fiduciary that have a However, the also Assembly General has with relationship patients. their Mur- Clinic, Udom, requiring enacted statutes a physician Med. P.A. v. 166 freesboro 674, (Tenn.2005); 683 treating under the Shadrick Workers’ Coker, 726, (Tenn.1998); 736 employer Act to furnish the duciary relationships every Vinyls, Corp., but also re- other 9. Westlake Inc. v. Goodrich lationship rightly 902, in which confidence is re- F.Supp.2d (W.D.Ky.2007); 917-18 Feldman, posed and Quinn exercised. 21 Steven W. 805, 419, Phipps, 93 Fla. 113 So. TennesseePractice: Contract Law and Practice (1927); Craggett Agency, v. Adell Ins. 6.13, (2006) ("Tennessee § at 504 Practice: App.3d Ohio 635 N.E.2d 1331-32 ’’). Contract Law and Practice relationship (noting that a confidential unilateral, parties cannot be rather both must Klabal, (8th Hope 457 F.3d special understand that a trust or confidence Cir.2006); Steiner, Lank v. 213 A.2d reposed); Victory has been Steele v. Sav. (Del.Ch.1965); First Tenn. Bank Nat’l Ass’n Bank, 295 S.C. S.E.2d 03A01-9503-CH-00102, C.T. Resorts No. (S.C.Ct.App.1988). WL (Tenn.Ct.App. Aug.30, at *5 1995) (No R.App. application Tenn. P. 11 filed). no stat- or statute. Because complete, reports regard permitted with written with attorney injury, injury the effect or to the its permits ute employee, prescribed, the treatment with the parte ex communications length hospitalization, and the item- communications physician, such employee’s § Ann. charges. ized TenmCode 50-6- physician’s fiduciary prohibited are 204(a)(1) (Supp.2007). Similarly, hospitals duty of non-disclosure. provide employers are with employ- I find that Accordingly, would copies of of an em- complete their records seeking under the Workers’ ees benefits treatment. Ann. ployee’s Tenn.Code privilege Compensation Act retain their 50-6-204(a)(2)(A). addition, In both of their against personal the non-disclosure hospitals provide em- physicians and must except information extent health subsequent prognosis reports, ployers privilege has been altered records, statements Neither state nor federal or state law.11 50-6- charges. TenmCode or 204(a)(2)(B). requires permits employers law federal agents parte or their to have ex discus- and information reports that are employees’ treating physi- sions with their statutorily required permitted fur- Therefore, fiduciary physician’s cians. nished are clear and well- duty disclosing patient’s refrain from exceptions a physician’s defined fiducia- prevents confidential health information duty fact, ry non-disclosure. engaging Assembly expressly Tennessee General discussions, expressly unless the stated that law re- impliedly consents unless developed No such information relevant permits disclosure. quires or in connection with treatment or exami- sought which nation for *17 employee shall be considered

privileged employ- communication.

ee’s consent shall not records,

furnishing reports of such or hospital furnishing

and no report record shall incur

liability as a result thereof. 50-6-204(a)(2)(B).10 §

Tenn.Code Ann.

However, physician’s duty of non-dis- person-

closure applies the disclosure beyond

al information that required health 50-6-204, expressly requested with Tenn.Code Ann. 10. Mr. Overstreet Dr. sistent anything Haynes "discuss me invalid unenforceable. not to about attorney attorneys represent with the who my employer Privacy or work for its workers’ example, ex- and/or 11. For the HIPAA Rule (company) compensation exempts insurance carrier plicitly disclosures made in accor- letter, person, by by phone otherwise.” dance with a state's workers' and/or 164.512(1). employee Accordingly, statu- An cannot alter an laws. 45 C.F.R. tory right personal purpose to receive health informa- under the Workers’ for the of claims Acts, regard to treatment for which the both federal and state tion seeking payment require treating physicians Work- to disclose under the law Therefore, Compensation Act. Mr. Over- information that would otherwise be ers’ health private. request, it is incon- street’s to the extent that