In its opinion filed on February 28, 2020, the Supreme Court of Tennessee at Nashville (“Tennessee Supreme Court”) held: “By removing any and all discretion from the trial courts in the decision to grant protective orders, the legislature, in its enactment of Tennessee Code Annotated section 29-26-121(f), impermissibly intruded on the authority of the judiciary over procedural matters. Thus, we must conclude that “the General Assembly overstepped its constitutional boundaries” in violation of the separation of powers clause in the Tennessee Constitution.”
The Underlying Facts
The Tennessee medical malpractice wrongful death plaintiff is the surviving daughter of the decedent. On October 16, 2013, the decedent was admitted to the defendant hospital’s emergency room. Following a CT scan and examination, the decedent was diagnosed with a bowel obstruction and was transferred to the Intensive Care Unit. The attending physician ordered a surgical consult with the defendant general surgeon, for treatment related to the decedent’s gastrointestinal problems.
Over the next several days, the decedent was treated and evaluated by the defendant general surgeon and several other physicians. However, the decedent’s health continued to decline and she died on October 21, 2013.
In 2015, the plaintiff filed her Tennessee healthcare liability wrongful death lawsuit on behalf of her mother, the decedent. The Tennessee medical malpractice wrongful death lawsuit alleged that the defendants’ negligent treatment of the decedent fell below the applicable standard of care and resulted in her death.
In the course of discovery, the defendants filed a motion for a qualified protective order pursuant to Tennessee Code Annotated section 29-26-121(f). The motion specifically requested that the defendants be permitted to conduct interviews with the decedent’s non-party treating healthcare providers, outside the presence of the plaintiff’s attorney. The plaintiff opposed the motion, arguing that Tennessee Code Annotated section 29-26-121(f) is unconstitutional by mandating that trial courts must issue qualified protective orders allowing defendants to conduct ex parte interviews with claimants’ treating healthcare providers, thereby depriving the trial court of its inherent authority over court proceedings and violating the separation of powers clause in the Tennessee Constitution.
In 2012, the Tennessee General Assembly added subsection (f) to Tennessee Code Annotated section 29-26-121, which states, in part: “(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:” (emphasis added).
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. Tenn. Code Ann. § 29-26-121(f)(1). The term “healthcare provider” includes physicians and other healthcare employees such as nurses.
The Tennessee Supreme Court stated that it must determine whether the provisions in the statute at issue in this case are procedural or substantive in nature. The Tennessee Supreme Court stated, “Looking to the statute at issue, we first note that the overarching purpose of the Tennessee Health Care Liability Act, codified at Tennessee Code Annotated section 29-26-101 to -122, is not purely procedural. The governance of healthcare liability actions is an area of mutual concern for the legislature and the judiciary … we hold that the overriding purpose of the particular provision at issue, section 121, which allows ex parte communication between defendants and plaintiffs’ healthcare providers, is not purely procedural either. The creation of a privilege is substantive law which, at least in large part, is within the province of the legislature … 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.”
The Tennessee Supreme Court stated, “by enacting the statute at issue, which expressly allows ex parte communication in this context, the legislature changed the overriding public policy concern in this area. The more important policy interest in this particular context, according to the legislature, was equality of access to information and a balance of the interests of the parties in medical malpractice cases. 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 … 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 … 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.”
The Tennessee Supreme Court continued: “However, this conclusion does not end our inquiry. We also must address the specific language in section (f)(1) that effectively strips trial courts of their discretion. Under section 29-26-121(f), if defendants identify in their petitions the non-party treating healthcare providers they wish to interview and the providers possess any information that is relevant to the lawsuit … [t]rial courts may impose limitations only when plaintiffs object and then only under strict conditions.”
The Tennessee Supreme Court stated that it is well settled that decisions with regard to pre-trial discovery matters rest within the sound discretion of the trial court and that this authority includes the trial court’s discretion to make discovery decisions based on the facts in a particular case. “By removing any and all discretion from the trial courts in the decision to grant protective orders, the legislature, in its enactment of Tennessee Code Annotated section 29-26-121(f), impermissibly intruded on the authority of the judiciary over procedural matters. Thus, we must conclude that “the General Assembly overstepped its constitutional boundaries” in violation of the separation of powers clause in the Tennessee Constitution … 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.”
The Tennessee Supreme Court stated, however: “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 section 29-26-121(f) to make it permissive only, in order to retain the core discretionary functions of trial courts in discovery, while providing a framework for protective orders over ex parte interviews with non-party treating healthcare providers. We elide from subsection (f)(1) the phrase, “Such petition shall be granted under the following conditions.” Under the elided version of the statute, a trial court can exercise its appropriate discretion over procedural discovery matters and also retain the power to determine what is admissible at trial. 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 subsection (f)(1)(C) addresses HIPAA requirements for protective orders under this section. Thus, we leave this provision undisturbed … 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.”
Source Willeford v. Klepper, No. M2016-01491-SC-R11-CV.
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