Analysis: The Tennessee legislature adopted Public Chapter No. 926 which was signed into law by Governor Bill Haslam on May 10, 2012. This bill amended T.C.A. § 29-26-121 by adding subsection (f) to the statute. This statute now provides a method for defendants and their counsel to obtain protected health information outside the presence of the claimant or claimant’s counsel.
T.C.A. § 29-26-121(f) provides as follows:
(f)(1) Upon the filing of any “healthcare liability action,” as defined in § 29-26-101(a)(1), the named defendant(s) may petition the court for a qualified protective order allowing the defendant(s) 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 “health care 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(s) for whom the defendant(s) seek a qualified protective order to conduct an interview;
(B) The claimant may file an objection seeking to limit or prohibit the defendant(s) or the defendant(s)' 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.
As a result, defendants may petition the court for the ability to conduct ex parte communication with the patient’s treating “health care provider” as defined in T.C.A. § 29-26-101(a)(2). This statute defines “health care providers” as follows:
(2) “Health care provider” means:
(A) A health care practitioner licensed, authorized, certified, registered, or regulated under any chapter of title 63 or title 68, including, but not limited to, medical resident physicians, interns, and fellows participating in a training program of one of the accredited medical schools or of one of such medical school's affiliated teaching hospitals in Tennessee;
(B) A nongovernmental health care facility licensed under title 68, chapter 11;
(C) A nongovernmental health facility licensed under the Mental Health, Developmental Disability, and Personal Support Services Licensure Law, compiled in title 33, chapter 2, part 4;
(D) The employee of a health care provider involved in the provision of health care services, including, but not limited to, physicians, nurses, licensed practical nurses, advance practice nurses, physician assistants, nursing technicians, pharmacy technicians, orderlies, certified nursing assistants, technicians and those physicians and nurses employed by a governmental health facility; or
(E) A professional corporation or professional limited liability company established pursuant to title 48, a registered limited liability partnership rendering professional services under title 61 and which consists of one (1) or more health care practitioners licensed, authorized, certified, registered, or regulated under any chapter of title 63 or title 68, or any legal entity that is not itself required to be licensed but which employs one or more health care practitioners licensed, authorized, certified, registered, or regulated under any chapter of title 63 or title 68.
The petition to the court “shall be granted” as long as it identifies the specific treating health care providers. The claimant can file an objection requesting the prohibition or limitation of the proposed ex parte communication but this will only be granted when good cause is shown that the health care provider does not possess any relevant information to the claim. Finally, the qualified protective order must limit the disclosure of any protective health information to the pending litigation before the court.
Interestingly, subsection (3) also provides that this statute does not limit the right of the defendant or defendant’s counsel to conduct interviews regarding the health care liability action outside the presence of plaintiff or plaintiff’s counsel with the defendant’s; (1) present employees, (2) former employees, (3) partners, or (4) owners. There have been several trial courts in Tennessee that have issued orders on both sides of this issue and this statute appears to be an attempt to clarify the disagreement among the trial courts.
This statute implies that a medical care practice that is sued in a medical malpractice/health care liability action should be able to communicate with its physicians who treated the plaintiff even if those physicians are not parties to the case (without petitioning the court as discussed above). I was recently involved in a case where this was in dispute. The key issue was whether the patient’s right to privacy over protected health information trumped the right of a practice or clinic to be able to communicate with its own doctors about the physician’s treatment of the patient. Subsection (f)(3) of this statute now provides good ammunition for the argument that a defendant medical practice (and counsel) can communicate with physicians in that practice about the lawsuit and treatment by the physician related to the lawsuit.