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Monday, March 02, 2015

Another 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)?

The Tennessee Court of Appeals issued its opinion recently in S.W. ex rel. Warren v. Baptist Mem'l Hosp., No. W2014-00621-COA-R10-CV (Tenn. Ct. App. Feb. 27, 2015).  It is a companion case to the Dean-Hayslett case that is the subject of my Jan. 20, 2015, which can be viewed a few posts below.

The summary from the majority opinion states as follows:
This is a healthcare liability action. The trial court granted Defendants’ motion for a qualified protective order pursuant to Tennessee Code Annotated § 29-26-121(f)(1), but set-forth several conditions, including: 1) a court reporter must be present at the ex parte interviews with Plaintiff’s treating healthcare providers and record all questions and answers; 2) all answers during the interviews must be under oath; 3) the interview transcripts shall be filed under seal and with permission of the trial court, and after showing of good cause, Plaintiff may access the transcripts for the purpose of determining whether a violation of privacy under HIPAA occurred during the interviews; and 4) Defendants should not attempt to elicit or discuss protected health information which is not relevant to the issues in this lawsuit. The order also provided “[t]his does not restrict the Defendants or their attorneys from discussing non-substantive matters unrelated to the patient’s protected health information.” The trial court denied Defendants’ joint motion for interlocutory appeal of the order and Defendants filed an application for extraordinary appeal pursuant to Rule 10 of the Tennessee Rules of Appellate Procedure. We granted the appeal for the sole purpose of determining whether, under section 29-26-121(f), the trial court erred by adding the four conditions noted above to its order. We reverse in part, affirm in part, and remand for further proceedings.
Here is a link to that opinion:

This decision is atypical in that there are two concurring opinions: one by Judge Stafford and the other by Judge Dinkins, to wit:

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