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Chapter 59: Physician – Patient Confidentiality

§59.1 Generally

The Case: Givens v. Mullikin , 75 S.W.3d 383 (Tenn. 2002).

The Basic Facts: Plaintiff initially brought suit against Defendant after she was injured in an automobile accident. The Defendant's insurance company then hired an attorney to defend the Defendant. This attorney engaged in substantial discovery, but was eventually fired and replaced by a new law firm. The new firm then engaged in extensive discovery of its own. Plaintiff then brought a separate action on a theory of vicarious liability for the defense attorneys' alleged abuse of process, inducement to breach express and implied contracts of confidentiality, inducement to breach a confidential relationship, and invasion of privacy during discovery.

The Bottom Line:

  • "The General Assembly has enacted several statutes that expressly require a physician and others to keep a patient's medical records and identifying information confidential. See Tenn. Code Ann. §§ 63‑2‑101(b)(1) (1997); 68‑11‑1502 (2001); 68-11-1503 (2001). Through the enactment of these statutes, patients and physicians now clearly expect that the physician will keep the patient's information confidential, and this expectation arises at the time that the patient seeks treatment. As one of the leading cases recognizing implied covenants of confidentiality in this context has acknowledged,
    Any time a doctor undertakes the treatment of a patient, and the consensual relationship of physician and patient is established, two jural obligations (of significance here) are simultaneously assumed by the doctor. Doctor and patient enter into a simple contract, the patient hoping that he will be cured and the doctor optimistically assuming that he will be compensated. As an implied condition of that contract, this Court is of the opinion that the doctor warrants that any confidential information gained through the relationship will not be released without the patient's permission. . . Consequently, when a doctor breaches his duty of secrecy, he is in violation of part of his obligations under the contract.

    Hammonds v. Aetna Cas. & Sur. Co. , 243 F. Supp. 793, 801 (N.D. Ohio 1965). As such, we now expressly hold that an implied covenant of confidentiality can arise from the original contract of treatment for payment, and we find that the plaintiff's complaint here has adequately alleged the existence of an implied covenant of confidentiality."
    75 S.W.3d at 407-08.
  • "Having found the existence of an implied covenant of confidentiality, we must next examine whether the complaint has alleged a breach of this implied covenant. Initially, it is clear that whatever the terms of this implied covenant of confidentiality may be, a physician cannot withhold such information in the face of a subpoena or other request cloaked with the authority of the court. Undoubtedly, any such contract would be contrary to public policy as expressed in the rules governing pre-trial discovery and in the relevant medical confidentiality statutes. FN10
    FN10 See Tenn. Code Ann. § 63‑2‑101(b)(1) (1997); Tenn. Code Ann. § 68‑11‑304(a)(1) (2001); Tenn. Code Ann. § 68‑11‑1505 (2001). These statutes, of course, do nothing to change the common law of Tennessee, which does not recognize the existence of a testimonial privilege between a physician and patient. See Quarles, 215 Tenn. at 657, 389 S.W.2d at 252."
    Id . at 408.
  • "Nevertheless, the plaintiff would have us declare that a physician does have a duty to keep a patient's information confidential in the face of a technically defective subpoena. We agree that the subpoenas issued by the Richardson Firm without the plaintiff's agreement did not strictly comply with the requirements of Rule of Civil Procedure 45.07. However, we do not agree that a physician is under a duty to discover technical defects in a subpoena, or to submit a subpoena for legal review and evaluation, before releasing a patient's medical records. Instead, the law can only require a physician responding to such request to act in good faith and with a subjective belief as to the validity of that request. Consequently, unless a plaintiff can show that a physician acted in bad faith or with actual knowledge of the subpoena's invalidity, no breach of an implied covenant of confidentiality can occur in this context.FN11
    FN11 This is not to say that a party is without any recourse against a technically defective subpoena seeking medical records or that parties are free to obtain discoverable information by any means possible without regard to proper processes or procedures. Rather, we conclude that the authority given to trial courts by the Rules of Civil Procedure to regulate the discovery process is adequate to deal with such technical deficiencies in the method of discovery. See Tenn. R. Civ. P. 26.03; 37.01(4)."
    Id .
  • "Using this standard as our guide, we find that the plaintiff has not alleged sufficient facts showing that her physician actually breached his implied covenant of confidentiality by releasing records pursuant to a technically defective subpoena. For example, we find no allegation that the physician acted in bad faith in sending the plaintiff's medical records to the Richardson Firm or that he was actually aware that the subpoenas did not meet the technical requirements of the law. Without these averments, therefore, we must hold that the plaintiff has not stated a claim that the Richardson Firm, in requesting medical records through subpoena, induced her physician to breach his implied covenant of confidentiality." Id.
  • "A much different case is presented, however, with respect to whether the physician breached his implied covenant of confidentiality by informally speaking to members of the Richardson Firm about the plaintiff's medical information. While the understanding of the parties giving rise to the implied covenant of confidentiality permits a physician to disclose information pursuant to subpoena or court order, this understanding does not include permission to divulge this information informally without the patient's consent.FN12 Therefore, absent circumstances giving rise to a duty to warn identifiable third persons against foreseeable risks emanating from a patient's illness, see Bradshaw v. Daniel, 854 S.W.2d 865, 872 (Tenn. 1993), we hold that a physician breaches his or her implied covenant of confidentiality by divulging medical information, without the patient's consent, through informal conversations with others. Accordingly, we find that the complaint in this case alleges sufficient facts showing that the physician breached his implied covenant of confidentiality by informally speaking to the Richardson Firm about the plaintiff's condition without her consent.FN13
    FN12 The physician's statutory duty of confidentiality is subject to several limited exceptions, see Tenn. Code Ann. §§ 63-2-101(b)(1); 68‑11‑1503, but no exception permits disclosure of medical information in private conversations without the patient's consent. As such, we are not inclined to find that patients or physicians typically expect that the physician's implied covenant of confidentiality contains an 'informal interview' exception.

    FN13 Allstate argues that Alessio v. Crook, 633 S.W.2d 770, 780 (Tenn. Ct. App. 1982), permits informal interviews of physicians without the patient's consent, and as such, attorneys cannot be guilty of inducing a breach of an implied covenant of confidentiality by merely requesting such an interview. We disagree. Although Alessio does contain dicta to support Allstate's argument, that case was decided prior to the enactment of Tennessee Code Annotated section 63‑2‑101 and the Patient's Privacy Protection Act. After the enactment of these statutes, patients and physicians now generally expect that the physician will keep the patient's medical information confidential, subject to a duty to disclose imposed by law. Consequently, any statements in Alessio that permit counsel to informally interview a physician without the patient's consent no longer accurately reflect the law in this area."
    Id . at 408-09.

Other Sources of Note: Alsip v. Johnson City Medical Center , 197 S.W.3d 722 (Tenn. 2006) (court cannot order ex parte communications with plaintiff's treating physician).

§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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