Willeford v. Klepper

597 S.W.3d 454

Rhonda WILLEFORD, et al.

v.Timothy P. KLEPPER, M.D., et al.

No. M2016-01491-SC-R11-CV

Supreme Court of Tennessee, AT NASHVILLE.

February 6, 2019 Session

FILED February 28, 2020

OPINION

Jeffrey S. Bivins, C.J.

We granted review in this case to determine whether Tennessee Code Annotated section 29-26-121(f) violates the separation of powers clause in the Tennessee Constitution. The statutory provision allows defense counsel to conduct ex parte interviews with patients’ non-party treating healthcare providers in the course of discovery in a healthcare liability lawsuit. We hold that section 29-26-121(f) is unconstitutional as enacted, to the limited extent that it divests trial courts of their inherent discretion over discovery. We also conclude that the statute can be elided to make it permissive and not mandatory upon trial courts. As such, we hold that the elided statute is constitutional. We vacate the trial court’s qualified protective order entered in this case and remand the case to the trial court for reconsideration based on the guidance set forth in this opinion.

FACTUAL AND PROCEDURAL BACKGROUND ¹

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 the course of discovery, the Defendants filed a motion for a qualified protective order pursuant to Tennessee Code Annotated section 29-26-121(f).³ 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 Plaintiff’s counsel. See Tenn. Code Ann. § 29-26-121(f) (2012 & Supp. 2018).

In response, Ms. Willeford argued that the trial court should deny the Defendants’ motion because Tennessee Code Annotated section 29-26-121(f) is unconstitutional. Ms. Willeford contended that, by mandating that trial courts must issue qualified protective orders allowing defendants to conduct ex parte interviews with claimants’ treating healthcare providers, the statute deprives the trial court of its inherent authority over court proceedings. Thus, she argued that the statute violates the separation of powers clause in the Tennessee Constitution. The State of Tennessee intervened in support of the constitutionality of Tennessee Code Annotated section 29-26-121(f), arguing that the Tennessee legislature properly exercised its power in enacting the statute.

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 Tennessee Code Annotated section 29-26-121(f), stating that "anytime that the legislature says the Court shall do something, I think that’s an overstepping of their bounds." The trial court believed, however, that it was not a trial judge’s place to declare a statute unconstitutional. Thus, the court entered a written qualified protective order allowing the interviews.

Ms. Willeford subsequently sought permission for an interlocutory appeal of the trial court’s qualified protective order pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure, in order to raise the issue of whether Tennessee Code Annotated section 29-26-121(f) violates the separation of powers doctrine embodied in article II, sections 1 and 2, of the Tennessee Constitution.⁴ The trial court granted the motion for 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.

This Court has recognized that, at common law, there was no privilege for physician-patient communications. Quarles v. Sutherland, 215 Tenn. 651, 389 S.W.2d 249, 250–51 (1965). The Quarles Court further observed that, because "our Legislature has not seen fit to act on the matter" by enacting a statute to the contrary, the Court "must apply the common law rule." Id. at 251.

In 1996, the United States Congress passed the Health Insurance Portability and Accountability Act ("HIPAA"), Pub. L. No. 104-191, tit. II, § 262(a), 110 Stat. 1936 (1996). See 42 U.S.C. § 1320d et seq. "Congress enacted HIPAA, in part, to protect the security and privacy of [health information]." Wade v. Vabnick-Wener, 922 F. Supp. 2d 679, 687 (W.D. Tenn. 2010) (alteration in original) (quoting Law v. Zuckerman, 307 F. Supp. 2d 705, 710 (D. Md. 2004) ).

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 45 C.F.R. § 160.103 ), perm. app. denied (Tenn. Oct. 21, 2016). Defined exceptions to HIPAA’s prohibitions against disclosure include the disclosure of protected health information for judicial and administrative proceedings. 45 C.F.R. § 164.512(e) (2016). None of HIPAA’s provisions, however, address ex parte interviews with healthcare providers. See Myles J. Poster, HIPAA Confusion: How the Privacy Rule Authorizes "Informal" Discovery, 44 U. Balt. L. Rev. 491, 504–06 (2015).

Tennessee also has enacted legislation pertaining to the privacy of patients’ medical records and information, including the Medical Records Act, Tennessee Code Annotated § 63-2-101(b)(1)(A) (2017) ("Except as otherwise provided by law, such patient’s medical records shall not constitute public records, and nothing contained in this part shall be deemed to impair any privilege of confidentiality conferred by law on patients, their personal representatives or heirs."), and the Patient’s Privacy Protection Act, Tennessee Code Annotated § 68-11-1502 (2013) ("Every patient entering and receiving care at a health care facility licensed by the board for licensing health care facilities has the expectation of and right to privacy for care received at such facility."); id. § 68-11-1503 (limiting disclosure of patient’s medical and personal information).

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, 326 N.C. 326, 389 S.E.2d 41, 47 (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, 284 Ga. 730, 670 S.E.2d 68, 72 (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 45 CFR § 164.512(e)"); Caldwell v. Chauvin, 464 S.W.3d 139, 159–60 (Ky. 2015) (holding that neither Kentucky law nor HIPAA prohibits ex parte interviews); Holman v. Rasak, 486 Mich. 429, 785 N.W.2d 98, 106 (2010) ("Ex parte interviews are permitted under Michigan law, and nothing in HIPAA specifically precludes them. Because it is possible for defense counsel to insure [sic] that any disclosure of protected health information by the covered entity complies with 45 C[.]F[.]R[.] § 164.512(e) by making ‘reasonable efforts’ to obtain a qualified protective order, HIPAA does not preempt Michigan law concerning ex parte interviews."); Smith v. Am. Home Prods. Corp....