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Saturday, December 14, 2019

New Health Care Liability Action: Case Remanded Because Order Was Not Final; Trial Court Sanctions Plaintiffs' Counsel

The Tennessee Court of Appeals released its opinion in Ibsen v. Summit View of Farragut, LLC, No. E2018-01249-COA-R3-CV (Tenn. Ct. App. Dec. 11, 2019).  The syllabus from the slip opinion reads as follows:
In this healthcare liability action, the defendants filed a motion for a qualified protective order allowing them to conduct ex parte interviews with some of the plaintiffs’ treating healthcare providers pursuant to Tenn. Code Ann. [sec.] 29-26-121(f). After the trial court granted the qualified protective order allowing the interviews, plaintiffs’ counsel wrote a letter to plaintiffs’ treating providers concerning the interviews. The defendants then filed a joint motion for sanctions asserting that the letters sent by plaintiffs’ counsel violated the trial court’s order by attempting to prevent the treating providers from participating in the interviews. The trial court granted monetary sanctions against the plaintiffs and their counsel and ordered plaintiffs’ counsel to send retraction letters to plaintiffs’ treating providers. The plaintiffs appeal. We have determined that the order on appeal is not a final order and, therefore, dismiss the appeal.
Here is a link to the opinion:

http://www.tncourts.gov/sites/default/files/hallysah_ibsen_coa_majority_opinion.pdf

NOTE: Sending letters to treating providers like this is not uncommon or per se wrong.  See Brazier v. Crockett Hosp.No. M2004-02941-COA-R10-CV, 2006 WL 2040408, 2006 Tenn. App. LEXIS 483, at *48 (Tenn. Ct. App. July 20, 2006).  However, Brazier was decided before Tenn. Code Ann. sec. 29-26-121(f) was enacted.  Compare id. at *1 with T.C.A. § 29-26-121(f), Stat. Hist. (LexisNexis, Lexis Advance, current thought 2019 Reg. Sess.).  What got the Plaintiffs in trouble here was that the trial court specifically admonished them from doing what they did.  

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