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Tuesday, January 20, 2015

New Health Care Liability Action Opinion: What Limits May a Trial Court Place upon a Defendant's Ex Parte Contact with a Plaintiff's Treating Physicians under Tenn. Code Ann. sec. 29-26-121(f)? Limits by Trial in This Case Disallowed.

Today the Tennessee Court of Appeals issued its opinion in Dean-Hayslett v. Methodist Healthcare, No. W2014-00625-COA-R10-CV (Tenn. Ct. App. Jan. 20, 2015).  This opinion deals with qualified protective orders allowing ex parte contact with a Plaintiff's treating physicians under Tenn. Code Ann. sec. 29-26-121(f). 

The majority opinion summary states as follows:
This is a healthcare liability action. The trial court granted Defendants’ joint motion for a qualified protective order pursuant to Tennessee Code Annotated § 29-26-121(f)(1), but added several conditions not specifically provided in the statute. The trial court denied Defendants’ joint motion for permission to seek an interlocutory appeal, and we granted Defendants’ motion for an extraordinary appeal to this Court under Rule 10 of the Tennessee Rules of Appellate Procedure.  We reverse in part, affirm in part, and remand for further proceedings.
Here are links to the majority opinion and Judge Stafford's concurring-in-results-only opinion:

NOTE: It is important to keep on mind that this is an interlocutory appeal under Rule 10 of the Tennessee Rules of Appellate Procedure where the the focus is upon what restrictions a trial court can place upon a qualified protective order under -121(f); that is it.  Per this opinion, a trial court may not require that the interviewed providers respond under oath; that a court reporter be present; or that the recorded interviews be filed under seal.

Further, Judge Stafford's concurring opinion foreshadows an effective constitutional challenge to -121(f).  While it doesn't mention it per se, I think it lends a lot of credibility to a separation-of-powers challenge.

Lastly, this opinion is the first Tennessee state-court appellate opinion that I am aware of that directly addresses -121(f).

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