Medical Malpractice - Ex-Parte Communications Between Medical Practice Defense Counsel and Non-Party Physicians Employed by Practice

Posted on Sep 14 2014 9:56PM by Attorney, Jason A. Lee

The Tennessee Court of Appeals recently decided an important issue that comes up often in medical malpractice (health care liability) cause of actions in Tennessee.  The case of Cheryl Hall v. James H. Crenshaw, M.D. et al, No. W2013-00662-COA-R9-CV, 2014 WL 3555987 (Tenn. Ct. App. 2014) dealt with a situation where the plaintiff sued the Jackson Clinic under a vicarious liability theory for the actions of one of its physicians.  The plaintiff then desired to take the depositions of two employee physician shareholders of the Jackson Clinic who were also medical doctors that treated the plaintiff.  The Jackson Clinic filed a motion asking the trial court for permission to meet ex-parte with these doctors (who were employees of the defendant Jackson Clinic) to discuss matters relevant to the case including the treatment of the decedent.  They wanted to meet with them prior to their depositions so they could properly prepare them for their testimony.  The trial court denied allowing the ex-parte meeting between Jackson Clinic defense counsel and the physicians who were employed by the Jackson Clinic based on the Alsip v. Johnson Medical Center, 197 S.W.3d 722 (Tenn. 2006) decision. 


The Jackson Clinic appealed this trial court decision.  Each of the doctors who were going to be deposed by the plaintiff submitted affidavits stating they were shareholders of the Jackson Clinic and that they desired to be represented by the Rainey, Kizer, Reviere & Bell, P.L.C. defense attorneys in this matter.  The Tennessee Court of Appeals performed a significant analysis of the case law on ex-parte communications between defense counsel and physicians in the context of healthcare liability actions in Tennessee.  This is an interesting discussion and is worth reading if you want more details on these issues or are dealing with such an issues in your case (but this discussion is much too lengthy for this post). 


At the end of the day the Court found that neither “Alsip nor Givens would bar counsel for the Jackson Clinic from conferring ex parte with Drs. Cherry and Mariencheck, since both are employees of the Jackson Clinic . . . We must respectfully conclude that the trial court erred in declining to permit ex parte communications between defense counsel for the Jackson Clinic and Drs. Cherry and Mariencheck.” Hall at 9.  As a result, the Court held that the attorneys for the defendant Jackson Clinic can communicate with non-party physician employees of the defendant clinic in order to prepare them for depositions in an ex parte manner.


It is important to note that effective July 1, 2012, the Tennessee Court of Appeals enacted T.C.A. § 29-26-121(f)(3) which now provides as follows:


(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.


The Tennessee Court of Appeals in this Hall case discussed this amendment and noted that T.C.A. § 29-26-121(f)(3), “appears to assume the existence of such a right but not expressly create it.” Hall at Footnote 2.  This statutory amendment did not apply to this case because the events in the Hall case took place prior to the time of the enactment of this statute.  As a result, this decision is important because although T.C.A. § 29-26-121(f)(3) appears to imply there is a right for ex-parte communication in this context, this Tennessee Court of Appeals panel did not believe that this statute actually created this right.  As a result, it was important to have this opinion which holds that such a right exists (although this issue certainly may be dealt with by the Tennessee Supreme Court at a later date).  For now, anyone trying to have these ex parte communications should cite the Hall case and the statutory amendment found in T.C.A. § 29-26-121(f)(3) (also referred to as the “Givens Fix”).


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TAGS: Tennessee Medical Malpractice/Health Care Liability, 2012 Tennessee Legislation
Brian Lee  -  2/25/2016 3:25:30 PM

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Jason A. Lee is a Member of Burrow Lee, PLLC. He practices in all areas of defense litigation inside and outside of Tennessee.

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Jason A. Lee, Member of Burrow Lee, PLLC
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