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§59.2 Ex Parte Communications

§59.2 Ex Parte Communications

The Case: Alsip v. Johnson City Medical Center , 197 S.W.3d 722 (Tenn. 2006).

The Basic Facts: Plaintiffs, the wife and children of a patient at Johnson City Medical Center after undergoing an aspiration of a peritonsillar abscess, filed a malpractice action against the hospital and the patient's physician. After undergoing the aspiration, the deceased began bleeding due to an inadvertent puncture of an artery by the Defendant physician, and forcing the doctor to perform surgery soon thereafter. A number of complications subsequently developed, including the discovery of a number of pre-existing health problems, and the patient ultimately succumbed to adult respiratory distress syndrome, renal failure and pneumonia. During the ensuing litigation, the Defendant physician filed a motion to allow ex parte interviews with the decedent's post-surgery, non-party physicians.

The Bottom Line:

  • "Pursuant to Rule 11 of the Tennessee Rules of Appellate Procedure, we accepted this appeal to clarify the meaning of our holding in Givens v. Mullikin, 75 S.W.3d 383 (Tenn. 2002), as it relates to a trial court's tailored discovery order in a medical malpractice lawsuit permitting ex parte communications between defense counsel and the decedent's non-party treating physicians. Carefully weighing public policy concerns and considering the case law on this issue from other jurisdictions, we hold that the trial court erred by issuing this order. Today we announce that such ex parte communications violate the implied covenant of confidentiality that exists between physicians and patients and that public policy does not require the voidance of this covenant. This being the case, ex parte communications between the plaintiff's non-party physicians and defense attorneys are not allowed in the State of Tennessee." 197 S.W.3d at 723-24.
  • "The present case confronts us with the following question: does public policy dictate that the covenant of confidentiality contained in the contract between patient and physician be voided by the filing of a medical malpractice lawsuit with the consequence that a trial court may authorize defense counsel to communicate ex parte with non-party physicians who treated the plaintiff for injuries allegedly arising from the malpractice? The issue presented requires us to balance society's legitimate desire for medical confidentiality against medical malpractice defendants' need for full disclosure of plaintiffs' relevant health information." Id. at 727.
  • "Tennessee Rule of Civil Procedure 26 allows for discovery of any unprivileged information that is also relevant to the lawsuit. Because ex parte communications unnecessarily endanger the integrity of the covenant of confidentiality between patient and physician by risking disclosure of the decedent's medical information not relevant to the lawsuit, and because the formal methods of discovery provided for in Rule 26.01 suffice to provide the defendants with all the decedent's relevant medical information, we hold that the trial court erred by issuing the order in controversy here. See also Kitzmiller v. Henning, 437 S.E.2d 452, 455 (W. Va. 1993) ('Ex parte interviews are prohibited because they pose the danger of disclosing irrelevant medical information that may compromise the confidential nature of the doctor-patient relationship without advancing any legitimate object of discovery.'). Neither the law nor public policy requires the plaintiff to bear the risk of disclosure of irrelevant confidential medical information in informal, private interviews with opposing counsel and non-party doctors. Therefore, we affirm the judgment of the Court of Appeals and remand the case to the trial court for further proceedings consistent with this opinion." Id. at 729-30.

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The foregoing is an excerpt from Day on Torts: Leading Cases in Tennessee Tort Law, published by John A. Day, Civil Trial Specialist, Fellow in the American College of Trial Lawyers, recipient of Best Lawyers in America recognition, Martindale-Hubbell AV® Preeminent™ rated attorney, and Top 100 Tennessee Mid-South Super Lawyers designee. Read John’s full bio here.

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