Althea Dean-Hayslett, as Surviving Widow of Jerry Hayslett v. Methodist Healthcare

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
November 12, 2014 Session

ALETHEA DEAN-HAYSLETT, AS SURVIVING WIDOW OF JERRY
HAYSLETT v. METHODIST HEALTHCARE, ET AL.

Appeal from the Circuit Court for Shelby County
No. CT00475412 Robert L. Childers, Judge

No. W2014-00625-COA-R10-CV - Filed January 20, 2015

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.

Tenn. R. App. P. 10 Extraordinary Appeal; Judgment of the Circuit Court Reversed
in Part; Affirmed in Part; and Remanded

A RNOLD B. G OLDIN, J., delivered the opinion of the Court, in which B RANDON O.
G IBSON, J. joined. J. S TEVEN S TAFFORD P.J.,W.S. filed a concurring opinion.

Mason Wilson and Julia Kavanagh, Memphis, Tennessee, for the appellant, Methodist Healthcare-
Memphis Hospitals.

Katherine M. Anderson and W. Bradley Gilmer, Memphis, Tennessee, for the appellant, Mohamad
Moughrabieh, M.D.

Mimi Phillips, Memphis, Tennessee, for the appellee, Alethea Dean-Hayslett.

OPINION

The is an extraordinary appeal pursuant to Rule 10 of the Tennessee Rules of
Appellate Procedure. In November 2012, Plaintiff/Appellee Alethea Dean-Hayslett (“Mrs.
Hayslett”) filed a complaint for damages for wrongful death, healthcare liability, and
ordinary negligence in the Circuit Court for Shelby County.1 In her complaint, Mrs. Hayslett
asserted that Defendants, Methodist Healthcare d/b/a Methodist Hospital North, Methodist
Healthcare Memphis Hospitals (collectively, “Methodist Hospital”) and Mohamad
Moughrabieh, M. D. (“Dr. Moughrabieh”; collectively, “Defendants”), committed acts of
ordinary negligence and professional negligence that proximately caused the death of her
husband, Jerry Hayslett (“Mr. Hayslett”), in July 2011. As required by Tennessee Code
Annotated § 29-26-121(b), Mrs. Hayslett stated in her complaint that she had complied with
the pre-suit notice requirements contained in section 29-26-121(a). She prayed for wrongful
death compensatory damages in the amount of $2,000,000.00 and damages for loss of
consortium on behalf of herself and her children in the total amount of $4,000,000.00.

Defendants filed motions to dismiss or, in the alternative, for summary judgment in
December 2012. In their motions, Defendants asserted that Mrs. Hayslett failed to comply
with the mandatory requirements of section 29-26-121 because she failed to provide a
medical authorization sufficient to comply with the Heath Insurance Portability and
Accountability Act (“HIPAA”) as mandated by section 29-26-121(a)(1)(E). Defendants
asserted that Mrs. Hayslett’s medical authorization authorized them to release Mr. Hayslett’s
medical records, but not to obtain them from other parties. Defendants also moved for
dismissal of Mrs. Hayslett’s complaint as time-barred by the statute of limitations where,
because her medical authorization failed to fulfill the requirements of subsection 121(a), the
extension to the limitations period granted by subsection 121(c) did not operate to extend the
limitations period in this case. Mrs. Hayslett responded in opposition to Defendants’
motions, and the trial court heard the motions in March 2013. By order entered March 27,
2013, the trial court denied Defendants’ motions, finding that Mrs. Hayslett’s medical
authorizations were HIPAA-compliant. Pursuant to these authorizations, Defendants were
authorized to release to each other all of Mr. Hayslett’s relevant medical records, which
consisted only of records generated by Methodist Hospital. Defendants answered in April
2013, generally denying allegations of negligence and asserting several affirmative defenses,
including the statute of limitations with respect to Mrs. Hayslett’s claims for ordinary
negligence and loss of consortium.

In May 2013, Defendants filed a joint motion for a qualified protective order pursuant

1
Mrs. Hayslett amended her complaint in March 2013 to designate the Methodist Defendant as
“Methodist Healthcare Memphis Hospitals d/b/a Methodist Hospital North.” She voluntarily nonsuited
Methodist Healthcare to the extent that it was a legal entity distinct from Methodist Healthcare Memphis
Hospitals. On March 27, 2013, the trial court entered an order dismissing Methodist Healthcare, a Tennessee
Corporation. The remaining Defendants are Methodist Healthcare Memphis Hospitals, a Tennessee
Corporation, d/b/a Methodist Hospital North and Mohamad Moughrabieh, M.D.

-2-
to Tennessee Code Annotated § 29-26-121. In their motion, Defendants sought to conduct
ex parte interviews with five of Mr. Hayslett’s treating physicians outside the presence of
Mrs. Hayslett and her counsel. In her response, Mrs. Hayslett opposed the motion on the
grounds that section 29-26-121(f) is unconstitutional where it impairs the contractual
obligation of confidentiality in violation of Article I, Section 20 of the Tennessee
Constitution; that it violates and is preempted by HIPAA; and that the section impermissibly
restricts the trial court’s discretion when drafting the qualified protective order. The State
of Tennessee filed a motion to intervene to defend the constitutionality of the section, and
the trial court granted the State’s motion in August 2013.

Following supplemental briefing by the parties, the trial court heard Defendants’
motion for a qualified protective order in May 2013. By order entered November 15, 2013,
the trial court determined that HIPAA does not preempt Tennessee Code Annotated § 29-26-
121(f) and that the section does not violate Article 1, Section 20 of the Tennessee
Constitution. The trial court also determined that section 29-26-121(f) does not violate the
separation of powers doctrine by improperly infringing upon the discretion of the judiciary
or by exceeding the boundaries of the legislature’s authority. The trial court determined that
section 29-26-121(f)(1) is a “procedural requirement” and a “proper exercise of the
legislature’s police power.” The trial court further determined that, pursuant to Rule 26.02
of the Tennessee Rules of Civil Procedure, it retained the courts’ broad discretionary powers
to fashion a discovery order containing conditions to address a plaintiff’s concerns.

In November 2013, the trial court accordingly granted Defendants’ motion for a
qualified protective order permitting Defendants to conduct ex parte interviews with five of
Mr. Hayslett’s treating physicians. The trial court imposed nine conditions on the order,
however, including:

1. Participation in the ex parte interview by the treating physicians/caregivers
is strictly voluntary. Nothing in this Order is intended to imply that the treating
physicians/caregivers are required to participate in the ex parte interview.

2. All Protected Health Information obtained during the ex parte interview
shall be used only in conjunction with this particular lawsuit and shall not be
disseminated to any third parties other than the defense attorneys’ staff
members, vendors, clients, and experts.

3. All Protected Health Information obtained during the ex parte interview
shall be destroyed at the conclusion of this lawsuit.

4. Defense attorneys may conduct no ex parte interview with treating

-3-
 physicians/caregivers until February 1, 2014.

5. A court reporter must be present at the ex parte interview and record all
questions and answers during the interview.

6. The answers during the interview must be given under oath.

7. Only one attorney for each named defendant may be present for the
interview.

8. No defendant party may be present during the interview.

9. The interview transcripts shall be filed under seal. With permission from the
Court, the plaintiff may access the transcripts for the purpose of determining
whether a violation of privacy under HIPAA occurred during the interview.

Defendants and Mrs. Hayslett filed motions for permission to seek an interlocutory
appeal pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure. Following a
hearing on January 24, 2014, the trial court denied the parties’ motions. On February 27,
2014, the trial court entered an order modifying the conditions of the qualified protective
order to provide:

1. Participation in the ex parte interview by the treating physicians/caregivers
is strictly voluntary. Nothing in this Order is intended to imply that the treating
physicians/caregivers are required to participate in the ex parte interview.

2. Relevant Protected Health Information may be elicited directly or indirectly
from a healthcare provider during the ex parte interview. Defendants should
not attempt to elicit or discuss Protected Health Information which is not
relevant to the issues in this lawsuit. This does not restrict the Defendants or
their attorneys from discussing non-substantive matters unrelated to the
patient’s Protected Health Information.

3. All Protected Health Information obtained during the ex parte interview
shall be used only in conjunction with this particular lawsuit and shall not be
disseminated to any third parties other than the defense attorneys’ staff
members, vendors, clients, and experts.

4. All Protected Health Information obtained during the ex parte interview
shall be destroyed at the conclusion of this lawsuit.

-4-
 5. Defense attorneys may conduct no ex parte interview with treating
physicians/caregivers until March 1, 2014.

6. A court reporter must be present at the ex parte interview and record all
questions and answers during the interview.

7. The answers during the interview must be given under oath.

8. The interview transcript shall be filed under seal. With permission from the
Court and after showing good cause, the plaintiff may access the transcripts for
the purpose of determining whether a violation of privacy under HIPAA
occurred during the interview.2

Defendants filed a joint application for an extraordinary appeal to this Court pursuant
to Rule 10 of the Tennessee Rules of Appellate Procedure. We granted limited review by
order entered May 13, 2014.

Issue Presented

The issue for which we granted review in this matter is:
Whether the trial judge has the authority to add the following conditions to a
Qualified Protective Order granted pursuant to Tennessee Code Annotated §
29-26-121(f):

1. A court reporter must be present at the ex-parte interview and
record all questions and answers during the ex-parte interview;

2. All answers during the interview must be under oath;

3. The interview transcript shall be filed under seal. With
permission of the Court, and after showing good cause, Plaintiff
may access the transcript for the purpose of determining whether
a violation of privacy under HIPAA occurred during the
interview; and,

4. Relevant Protected Health Information may be elicited
directly or indirectly from a healthcare provider during the ex

2
Conditions re-numbered from the trial court’s order for clarity.

-5-
 parte interview. Defendants should not attempt to elicit or
discuss Protected Health Information which is not relevant to the
issues in this lawsuit. This does not restrict the Defendants or
their attorneys from discussing non-substantive matters
unrelated to the patient’s Protected Health Information.

Standard of Review

Mrs. Hayslett submits that, although the trial court based its rationale for imposing
conditions on the qualified protective order in this case on its interpretation of section 29-26-
121(f)(1), the issue presented by this appeal is a discovery matter and the abuse of discretion
standard of review accordingly is applicable. Defendants, on the other hand, contend that
the issue is one of statutory construction and that the applicable standard of review
accordingly is de novo, with no presumption of correctness afforded to the determination of
the trial court. We agree with Defendants that this appeal requires us to determine, as an
initial matter, whether, under section 29-26-121(f)(1), the trial court had the authority to
restrict or condition the qualified protective order as it did in this case. Construction of a
statute is a question of law. Thurmond v. Mid-Cumberland Infectious Disease Consultants,
PLC, 433 S.W.3d 512, 516 (Tenn. 2014). Our review accordingly is de novo, with no
presumption of correctness afforded to the decision of the trial court. Id. at 517.

Discussion

It is well-settled that our duty when construing a statute is to ascertain and effectuate
the intent and purpose of the General Assembly, neither broadening the statute beyond its
intended scope nor unduly restricting it. Id.; Commissioners of Powell-Clinch Utility Dist.
v. Utility Mgmt. Review Bd., 427 S.W.3d 375, 384 (Tenn. Ct. App. 2013) (citation omitted).
We interpret a statutory section reasonably in light of the context of the entire statute,
construing it according to the natural, ordinary meaning of the language chosen by the
legislature and in a “manner which avoids statutory conflict and provides for harmonious
operation of the laws.” Baker v. State, 417 S.W.3d 428, 433 (Tenn. 2013).

We begin our analysis with the words used in the statute and “[i]f the statutory
language is clear and unambiguous, we apply its plain meaning, understood in its normal and
accepted usage, without a forced interpretation[.]” Id. (citation omitted). If the statutory
language is ambiguous, or if we must resolve a conflict between provisions, we may take
other matters into consideration, including relevant historical facts, the entire statutory
scheme, the legislative history, earlier versions of the statute, and public policy. Lee Med.,
Inc. v. Beecher, 312 S.W.3d 515, 527-28 (Tenn. 2010). Such “non-codified external
sources[,]” however, “cannot provide a basis for departing from clear codified statutory

-6-
provisions[,]” regardless of “how illuminating [they] may be[.]” Id. at 528. Although we
presume every word or phrase has effect and that the General Assembly chose each word
purposely and deliberately, we cannot base our construction on any single word. Id. at 527
(citations omitted). We also presume that the legislators were aware of the existing law and
the courts’ construction of prior statutes, and that they “‘did not intend an absurdity’” when
enacting the statute. Id. (quoting Fletcher v. State, 951 S.W.2d 378, 382 (Tenn. 1997)).

Because the current action was commenced after July 1, 2012, and prior to July 1,
2013, the 2012 version of Tennessee Code Annotated § 29-26-121(f) is applicable to this
lawsuit.3 Section 29-26-121(f) as it existed in November 2012 provided:

(1) Upon the filing of any “healthcare liability action,” as defined in §
29-26-101, the named defendant or defendants may petition the court for a
qualified protective order allowing the defendant or defendants and their
attorneys the right to obtain protected health information during interviews,
outside the presence of claimant or claimant’s counsel, with the relevant
patient’s treating “healthcare providers,” as defined by § 29-26-101. Such
petition shall be granted under the following conditions:

(A) The petition must identify the treating healthcare provider or
providers for whom the defendant or defendants seek a qualified
protective order to conduct an interview;

(B) The claimant may file an objection seeking to limit or prohibit the
defendant or defendants or the defendant’s or defendants’ counsel from
conducting the interviews, which may be granted only upon good cause
shown that a treating healthcare provider does not possess relevant
information as defined by the Tennessee Rules of Civil Procedure; and

3
Section 29-29-121(f)(1)(C) was amended in 2013 to provide:

(C)(i) The qualified protective order shall expressly limit the dissemination of any protected
health information to the litigation pending before the court and require the defendant or
defendants who conducted the interview to return to the healthcare provider or destroy any
protected health information obtained in the course of any such interview, including all
copies, at the end of the litigation;
(ii) The qualified protective order shall expressly provide that participation in any such
interview by a treating healthcare provider is voluntary.

Tenn. Code Ann. § 29-26-121(f)(1)(C) (Supp. 2014).

-7-
 (C) The qualified protective order shall expressly limit the
dissemination of any protected health information to the litigation
pending before the court.

(2) Any disclosure of protected health information by a healthcare provider in
response to a court order under this section shall be deemed a permissible
disclosure under Tennessee law, any Tennessee statute or rule of common law
notwithstanding.

(3) Nothing in this part shall be construed as restricting in any way the right of
a defendant or defendant’s counsel from conducting interviews outside the
presence of claimant or claimant’s counsel with the defendant’s own present
or former employees, partners, or owners concerning a healthcare liability
action.

Tenn. Code Ann. § 29-26-121(f) (2012).

As noted above, the issue in this case is the extent to which a trial court may limit or
restrict ex parte interviews in a qualified protective order granted pursuant to the section.
In light of the well-settled principle that trial courts have broad discretionary authority to
control the proceedings in their courts, Barnett v. Tenn. Orthopaedic Alliance, 391 S.W.3d
74, 79 (Tenn. Ct. App. 2012), the section’s mandatory provision that a defendant’s motion
for a qualified protective order “shall be granted” subject to the conditions and limitations
expressly stated in the section, and the section’s silence with respect to whether a trial court
may impose additional restrictions or conditions, we find the section is ambiguous with
respect to the extent of the trial court’s authority to impose limitations or restrictions when
granting orders under the section. Accordingly, we first turn to the “non-codified external
sources” noted above to determine the legislative intent of section 29-26-121(f)(1) with
respect to the scope of the trial court’s authority when fashioning a qualified protective order
under it.

Historical Background

Section 29-26-121(f), which became effective in July 2012, is the legislature’s
response to the courts’ increasing protection of confidential healthcare information. In turn,
the judicial emphasis on the implied contract of confidentiality between a patient and his
healthcare providers reflects the courts’ interpretation of statutes enacted by the legislature
from 1997 to 2001, statutes that the Tennessee Supreme Court construed as “indicative of
the General Assembly’s desire to keep confidential a patient’s medical records and
identifying information[.]” Alsip v. Johnson City Med. Ctr., 197 S.W.3d 722, 726 (Tenn.

-8-
2006) (citing Givens v. Mullikin, 75 S.W.3d 383, 407 (Tenn. 2002) (citing Tenn. Code Ann.
§§ 63-2-101(b)(1) (1997), 68-11-1502 (2001), 68-11-1503 (2001))). As early as 1965, the
supreme court recognized the possibility of an implied contract of confidentiality between
a patient and his physician. Quarles v. Sutherland, 389 S.W.2d 249, 252 (Tenn. 1965). In
Quarles, the court declined to recognize a physician-patient privilege in contravention of the
common law where the “Legislature ha[d] not seen fit to act on the matter[.]” Id. at 251.
The Quarles court noted however, “that physicians and surgeons are required by the ethics
of their profession to preserve the secrets of their patients which have been communicated
to them or learned from symptoms or examination of other bodily conditions[,]” and
recognized a “possible sounding of [a] lawsuit . . . under allegations that there was an implied
contract between the parties[,]” a patient and his physician. Id. at 251-52.

Subsequent to the supreme court’s observations in Quarles, in the 1990s the General
Assembly enacted a number of statutes expressly requiring healthcare providers to keep their
patients’ medical records and identifying information confidential. In 1996, the General
Assembly amended Tennessee Code Annotated § 63-2-101 to provide that “medical records
shall not constitute public records, and nothing contained in [the] part shall be deemed to
impair any privilege of confidentiality conferred by law on patients, their personal
representatives or heirs.” Tenn. Code Ann. § 63-2-101 (b)(1) (1997); 1996 Tenn. Pub. Acts
862. The 1996 amendment further provided:

Except for any statutorily required reporting to health or government
authorities and except for access by an interested third-party payer (or their
designee) for the purpose of utilization reviews, case management, peer
reviews or other administrative functions, the name and address and other
identifying information of a patient shall not be divulged. The name and
address and other identifying information shall not be sold for any purpose.
Any violation of this provision shall be an invasion of the patient’s right to
privacy.

Id.4 In 1996, the General Assembly also enacted the Patient’s Privacy Protection Act. Tenn.

4
The Tennessee Code currently provides:

(1)(A) Except as otherwise provided by law, such patient’s medical records shall not
constitute public records, and nothing contained in this part shall be deemed to impair any
privilege of confidentiality conferred by law on patients, their personal representatives or
heirs. Nothing in this subsection (b) shall impair or abridge the right of the patient or the
patient’s authorized representative to obtain copies of the patient’s hospital records in the
manner provided in § 68-11-304. Nothing in this subsection (b) shall be construed as
prohibiting a patient’s medical records from being subpoenaed by a court of competent

-9-
Code Ann. § 68-11-1501, et. seq.; 1996 Tenn. Pub. Acts 873. The act as currently codified
provides, in relevant part, that patients have “the expectation of and right to privacy for” the
care they receive at licensed facilities and in the confidentiality of their identifying
information. Tenn. Code Ann. §§ 68-11-1502 & 1503(a) (2013). It also provides a right to
a private civil action for damages for invasion of privacy for violations of the act. Tenn.
Code Ann. § 68-11-1504 (2013).5

jurisdiction.

(B) As used in subdivision (b)(1)(A), “medical records” includes any list of patients that is
compiled or maintained by or for such patient’s health care provider.

(2) Except for any statutorily required reporting to health or government authorities and
except for access by an interested third-party payer or their designee for the purpose of
utilization review, case management, peer reviews or other administrative functions, the
name and address and other identifying information of a patient shall not be divulged. The
name and address and other identifying information shall not be sold for any purpose. Any
violation of this subdivision (b)(2) shall be an invasion of the patient’s right to privacy.

(3) Except as otherwise authorized in this section, title 38, chapter 7, part 1, title 68, chapter
11, part 3 and title 68, chapter 11, part 15, a health care provider shall have in place a policy
to protect the dignity of a patient, even if the patient dies or becomes incapacitated, by
limiting the use and disclosure of medical records, images, videos or pictures intended to
be used for appropriate medical educational purposes, even if the patient’s information is
de-identified. The policy shall include when and to whom it is appropriate to use and
disclose the patient’s information, and when a written authorization from the patient or their
authorized representative is required, whenever it is reasonably possible to obtain it, prior
to use or disclosure. If the patient becomes incapacitated or dies, and there is no legal
representative for the patient, the patient’s next of kin will be considered to be an authorized
representative for the patient. When required the written authorization will include the core
elements required by 45 CFR Parts 160 and 164, “Standards for Privacy of Individually
Identifiable Health Information.”

Tenn. Code Ann. § 63-2-101(b).
5
Current Tennessee Code Annotated § 68-11-1502 provides:

Every patient entering and receiving care at a health care facility licensed by the board for
licensing health care facilities has the expectation of and right to privacy for care received
at such facility.

Current Tennessee Code Annotated § 68-11-1503(a)(1) provides that a patient’s name, address, and other
identifying information shall not be divulged other than as excepted by the statute. Subsection (a)(2) requires
healthcare providers to “have in place a policy to protect the dignity of a patient,” and subsection (c) provides
that violation of the section shall be considered “an invasion of the patient’s right to privacy.”

-10-
 Notwithstanding physicians’ well-established ethical obligations to keep their
patients’ confidences and to maintain their patients’ privacy expectations, ex parte interviews
of healthcare providers nevertheless were recognized “as a time-honored method of ‘informal
discovery.’” Angela T. Burnett and D’Andrea J. Morning, HIPAA and Ex Parte Interviews -
- The Beginning of the End?, 1 J. Health & Life Sci. L. 73, 77 (April 2008). As the statutory
protection of privacy expectations in the healthcare context evolved, however, accompanied
by the courts’ recognition of an implied covenant of confidentiality between patients and
their healthcare providers, this informal investigatory practice increasingly was called into
question by the courts. Indeed, scholars have observed that some courts questioned the
practice of using ex parte interviews to illicit healthcare information “[l]ong before
HIPAA[.]” Id. at 79.

In a federal case decided the same year as Quarles, in 1965 the court in Hammonds
v. Aetna Casualty & Surety Company expressly recognized an implied covenant of
confidentiality in the physician-patient contract and held that a physician’s breach of the
“warranty of silence” constituted a breach of his contractual obligations. Hammonds v. Aetna
Cas. & Sur. Co., 243 F. Supp. 793, 801 (N.D. Ohio 1965). The Hammonds court opined:

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. Almost every member of the public
is aware of the promise of discretion contained in the Hippocratic Oath, and
every patient has a right to rely upon this warranty of silence. The promise of
secrecy is as much an express warranty as the advertisement of a commercial
entrepreneur. Consequently, when a doctor breaches his duty of secrecy, he
is in violation of part of his obligations under the contract.

Id. Noting our “adversary judicial system, with its intensity heightened by the continuing
friction between insurance companies and claimants,” the Hammonds court questioned the
propriety of a “doctor discussing the case of his patient-plaintiff with the lawyer for the
defending insurance company[,]” and concluded that “preservation of the patient’s privacy
is no mere ethical duty[,]” but “a legal duty as well.” Id. at 798-802. It held that the
“unauthorized revelation of medical secrets, or any confidential communication given in the
course of treatment, is tortious conduct which may be the basis for an action in damages.”

-11-
Id. at 802.

In State ex rel. Kitzmiller v. Henning, the West Virginia Supreme Court of Appeals
held that, although a patient implicitly consents to the release of medical information with
respect to the condition at issue in the lawsuit, that consent is limited. Kitzmiller v. Henning,
437 S.E.2d 452, 455 (W. VA. 1993). The Kitzmiller court opined that the patient “does not
consent, simply by filing suit, to his physician’s discussing his medical confidences with third
parties outside court-authorized discovery methods, nor does he consent to his physician’s
discussing the patient’s confidences in an ex parte conference with the patient’s adversary.”
Id. (citing see, Fields v. McNamara, 189 Colo. 284, 540 P.2d 327 (Sup. Ct.1975); Petrillo
v. Syntex Laboratories, Inc., 148 Ill. App.3d 581, 102 Ill. Dec. 172, 499 N.E.2d 952, 959 (1
Dist.1986); Crist v. Moffatt, 389 S.E.2d 41, 46 (N.C. 1990); Ritter v. Rush–Presbyterian–St.
Luke’s, 177 Ill. App.3d 313, 126 Ill. Dec. 642, 532 N.E.2d 327, 330 (1 Dist.1988); Karsten
v. McCray, 157 Ill. App.3d 1, 109 Ill. Dec. 364, 509 N.E.2d 1376, 1383–84 (2 Dist.1987);
Jordan v. Sinai Hosp. of Detroit, Inc., 171 Mich. App. 328, 429 N.W.2d 891, 899 (1988);
Wenninger v. Muesing, 307 Minn. 405, 240 N.W.2d 333, 335 (Sup. Ct. 1976); Jaap v.
District Court of Eighth Judicial Dist., Mont., 191 Mont. 319, 623 P.2d 1389, 1391 (1981)).
It held that “[e]x 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[,]” and that
discovery could be obtained only as permitted by the West Virginia Rules of Civil Procedure.
Id.

In 2002, the Tennessee Supreme Court observed in Givens v. Mullikin ex rel. Estate
of McElwaney that, through acts of the General Assembly, “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.” Givens v. Mullikin ex rel.
Estate of McElwaney, 75 S.W.3d 383, 407 (Tenn. 2002). The Givens court observed that it
had recognized in Quarles the possibility that “an implied contract of confidentiality arose
between a physician and a patient . . . when a patient compensates a physician in return for
medical treatment.” Id. Quoting Hammonds with approval, the Givens court explicitly
recognized an implied covenant of confidentiality in a “contract of treatment for payment”
between a patient and his physician. Id. Most significantly, the Givens court held that when
a physician divulges confidential information in “informal conversations with others”
without the patient’s consent, the physician breaches the implied covenant of confidentiality.
Id. at 409.

Observing that a physician’s duty of confidentiality is subject to several statutory
exceptions, the court noted that “no exception permits disclosure of medical information in
private conversations without the patient’s consent.” Id. n.12. The Givens court accordingly

-12-
held that the implied covenant of confidentiality did not contain an “informal interview”
exception. Id. It also opined that dicta in Alessio v. Crook, 633 S.W.2d 770, 780 (Tenn. Ct.
App. 1982), permitting informal interviews of physicians without the consent of the patient,
did not accurately reflect the law after enactment of Tennessee Code Annotated § 63-2-101
and the Patient’s Right to Privacy Act. Id. n.13. The court noted, however, 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” and that such a contract “[u]ndoubtedly . . . would be contrary to public policy as
expressed in the rules governing pretrial discovery and in the relevant medical confidentiality
statutes.” Id. at 408 (citing 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)).6

Four years later, the supreme court clarified its decision in Givens and struck down
a trial court’s order permitting ex parte communication between a decedent’s non-party
treating physician and counsel for the defendant medical center in a medical malpractice
action filed by decedent’s mother and surviving children. Alsip v. Johnson City Med. Ctr.,
197 S.W.3d 722, 723-24 (Tenn. 2006). The Alsip court “announce[d] that such ex parte
communications violate[d] the implied covenant of confidentiality that exists between
physicians and patients[.]” Id. Noting that the implied covenant of confidentiality is not
enforceable “when it offends public policy” and that it “can be voided when its enforcement
would compromise the needs of society”7 and “for the purpose of discovery” under Rule 26
of the Tennessee Rules of Civil Procedure, the Alsip court held that “the formal methods of
discovery expressly authorized by Rule 26” were sufficient to reveal all relevant medical
information to the defendants. Id. at 728. It opined that public policy concerns did not
require “voidance” of the implied covenant of confidentiality and that “ex parte
communications between the plaintiff’s non-party physicians and defense attorneys [were]
not allowed in the State of Tennessee.” Id. at 724. Balancing “society’s legitimate desire for
medical confidentiality against medical malpractice defendants’ need for full disclosure of

6
The court additionally noted that the statutes did not alter the fact that Tennessee common law does
not recognize a physician-patient testimonial privilege. Id. at n.10.
7
The supreme court observed that the implied covenant of confidentiality “is voided” in
circumstances where a patient’s illness may present a foreseeable risk to others; where state law requires
reporting of wounds or injuries resulting from deadly weapons or violence; in cases of suspected child abuse
or sexual assault; or in instance of venereal disease in minors age thirteen and under. Alsip, 197 S.W.3d at
726 (citations omitted). We note that Tennessee Code Annotated § 38-1-101 was amended in 2012 to
provide that the reporting provisions contained in subsection (a) of the section do not apply if the person
seeking or receiving treatment is 18 years of age or older; objects to the release of identifying information
to law enforcement officials; and is a victim of sexual assault or domestic abuse, unless the injuries are
considered to be life threatening or inflicted by strangulation or a deadly weapon. Tenn. Code Ann. 38-1-
101(d).

-13-
plaintiffs’ relevant health information[,]” the Alsip court concluded that “[n]either the law
nor public policy require[d] the plaintiff to bear the risk of disclosure of irrelevant
confidential medical information in informal, private interviews with opposing counsel and
non-party doctors.” Id. at 727, 730. The court “agree[d] with numerous ‘[o]ther courts [that]
concluded that formal discovery procedures enable defendants to reach all relevant
information while simultaneously protecting the patient’s privacy by ensuring supervision
over the discovery process[.]’” Id. at 727 (quoting Crist v. Moffatt, 389 S.E.2d 41, 46 (N.C.
1990) (citing Petrillo v. Syntex Lab., Inc., 499 N.E.2d 952, 963 (Ill. App. 1986); Roosevelt
Hotel Ltd. P’ship v. Sweeney, 394 N.W.2d 353, 356 (Iowa 1986); Anker v. Brodnitz, 98
Misc.2d 148, 413 N.Y.S.2d 582, 585-86 (N. Y. Sup. Ct. 1979))). The supreme court
extended its holdings in Givens and Alsip to actions filed pursuant to the Tennessee Workers’
Compensation Act in Overstreet v. TRW Commercial Steering Division, et al., 256 S.W.3d
626 (Tenn. 2008).

In 2008, the General Assembly amended the medical malpractice act contained in
Chapter 26 of Title 29 by adding sections 121 and 122, which became applicable to all
medical malpractice actions filed on or after October 1, 2008. Tenn. Code Ann. §§ 29-26-
121 and 29-26-122 (Supp. 2011); 2008 Tenn. Pub. Acts. 919. Sub-section 29-26-121(f),
which provides for qualified protective orders allowing defendants and their counsel to
conduct ex parte interviews with plaintiffs’ healthcare providers, became effective on July
1, 2012. 2012 Tenn. Pub. Acts 926. In 2013, subsection 121(f)(1)(C) was amended,
effective July 1, 2013, to expressly provide that participation by a healthcare provider is
voluntary.8 Tenn. Code Ann. § 29-26-121(f) (2013); 2013 Tenn. Pub. Acts. 23.

Section 29-26-121

Sometimes called “the Givens Fix,” because it arose against the backdrop of Givens
and a “reported . . . backlash of debate among defense lawyers[,]” Whitney Boshers Hayes,
Physician-Patient Confidentiality in Health Care Liability Actions: HIPAA’s Preemption of
Ex Parte Interviews with Treating Physicians Through the Obstacle Test, 44 U. Mem. L.Rev.
97, 105 (Fall 2013)); Burnett, 1 J. Health & Life Sci. L. 73, 80, Tennessee Code Annotated
§ 29-26-121(f) effectively legislatively abrogated Givens and Alsip to the extent to which
they barred ex parte interviews of a plaintiff’s treating healthcare providers by defendants
and defense counsel outside the discovery process. See Hall v. Crenshaw, No. W2014-0062-
COA-R9-CV, 2014 WL 3555987, at *4 n.2 (Tenn. Ct. App. July 18, 2014) (citing Tenn.
Code Ann. § 29-26-121(f) (2013); Hayes, 44 U. Mem. L.Rev. at 106-07). Subsection (f)(3)
of the section, moreover, has been held to “assume the existence of . . . a right” of defense

8
The 2012 amendments substituted “health care liability” for “medical malpractice.” 2012 Pub. Acts
798.

-14-
counsel to conduct “‘interviews outside the presence of claimant or claimant’s counsel with
the defendant’s own present or former employees, partners, or owners concerning a
healthcare liability action[.]’” Hall, 2014 WL 3555987, at *4 n.2 (quoting Tenn. Code Ann.
§ 29-26-121(f)(3)).9

Section 29-26-121(f) is not without its limiting provisions, however. Rather, the
section reflects the General Assembly’s re-balancing of a plaintiff’s privacy interests and
expectations in his healthcare information against the defendants’ ability to obtain relevant
protected information outside of the formal discovery procedures set forth in Rule 26 of the
Tennessee Rules of Civil Procedure. We observe, moreover, that subsection 121(f) is one
subsection in a statutory section that serves to promote the expeditious resolution of
allegations of professional negligence in the healthcare setting. Accordingly, it is properly
construed within the context of the statute’s overall purpose and intent. See Eastman Chem.
Co. v. Johnson, 151 S.W.3d 503,507 (Tenn. 2004) (stating: a “statute must be construed in
its entirety” and its “background, purpose, and general circumstances under which words are
used in a statute must be considered”). We accordingly turn to the overall scheme of section
29-26-121.

As noted above, the General Assembly amended Part 1 of Chapter 26, Title 29,
formerly known as the Medical Malpractice Act, to add sections 29-26-121 and 29-26-122
in 2008. The mandatory pre-suit notice provision contained in subsection 121(a) sets forth
six requirements that serve to accomplish “related yet ultimately distinct goals.” Stevens ex
rel. Stevens v. Hickman Cmty. Health Care Servs., Inc., 418 S.W.3d 547, 554 (Tenn. 2013).
Subsection 121(a)(1) expressly requires the plaintiff to provide defendants with written
notice of a potential healthcare liability claim at least 60 days before filing a complaint.
Subsection 121(a)(2) “facilitate[s] early resolution” of potential claims by requiring plaintiffs
to provide identifying information, contact information, contact information for plaintiff’s
legal counsel, and a HIPAA-compliant authorization allowing the defendant healthcare
provider to obtain medical records from other providers included in the notice. Id. The
subsection thus fulfills an “investigatory function[,]” providing defendants the ability to

9
In Hall v. Crenshaw, a healthcare liability action filed prior to the effective date of the section, we
held that defense counsel for a medical entity was not prohibited from conferring ex parte with non-party
treating physicians employed by the defendant entity. The Hall court noted the “‘basic principle of agency
. . . that a corporation can act only through authorized acts of its corporate directors, officers, and other
employees and agents. Thus, the acts of the corporation’s agents are attributed to the corporation itself.’”
Hall, 2014 WL 3555987, at *8 (quoting Trau-Med of Am., Inc. v. Allstate Ins. Co., 71 S.W.3d 691, 703
(Tenn. 2002)). It reasoned that any knowledge that the non-party treating physician may have had about the
patient’s treatment accordingly was “already imputed” to the defendant medical entity. Id. The Hall court
held that neither Givens nor Alsip barred counsel for the medical entity from ex parte communication with
the entity’s own physician employees. Id. at *9.

-15-
evaluate the merits of the plaintiff’s claim by facilitating early identification of potential co-
defendants and access to the plaintiff’s medical records. Id. Subsection 121(b) requires a
plaintiff to indicate in his pleadings whether he has complied with subsection 121(a), and to
attach the documentation required by subsection 121(a)(2). It also explicitly grants the trial
court the discretion to excuse compliance with the section “only for extraordinary cause
shown.” Tenn. Code Ann. § 29-29-121(b); Childs v. UT Med. Grp., Inc., 398 S.W.3d 163
(Tenn. Ct. App. 2012). Subsection 121(c) extends the applicable statutes of limitations and
repose when notice is given in compliance with the section. Tenn. Code Ann. § 29-26-
121(c). Subsection 121(e) provides that if a claim “is filed in good faith reliance” on
subsection 121(c) but is subsequently determined not to constitute a healthcare liability
action, the plaintiff may nevertheless rely on the extension of the statute of limitations and
statute of repose afforded by subsection 121(c). Tenn. Code Ann. § 29-26-121(e).
Subsection 121(d) entitles all the parties in a healthcare liability action to obtain complete
copies of the plaintiff’s medical records from other healthcare providers who received notice
and the HIPAA-compliant authorization mandated by subsection 121(a). Tenn. Code Ann.
§ 29-26-121(d). We note that our supreme court has construed “complete medical records”
to mean “medical records that are relevant to the particular claim at issue” and not the
“plaintiff’s entire medical history.” Stevens, 418 S.W.3d at 558. Effective July 1, 2012, if
a healthcare liability claim is filed, subsection 121(f)(1) permits the named defendants to
petition the trial court for a qualified protective order allowing the defendants and their legal
counsel to conduct interviews, outside of the presence of plaintiff and plaintiff’s counsel,
with the plaintiff’s treating healthcare providers. The subsection further provides that the
trial court “shall” grant the petition provided the petition identifies the treating healthcare
providers whom the defendant seeks to interview. Tenn. Code Ann. § 29-26-121(f)(1)(A).
Under subsection 121(f)(2), the disclosure of protected healthcare information in response
to an order entered under the section is deemed permissible notwithstanding any other
Tennessee state statute or common law. Tenn. Code Ann. § 29-26-121(f)(2). Finally,
subsection 121(f)(3) provides that the part does not restrict the right of a defendant or his
counsel “from conducting interviews outside the presence of claimant or claimant’s counsel
with the defendant’s own present or former employees, partners, or owners concerning a
healthcare liability action.” We have noted that subsection 121(f)(3) appears to assume that
defendants and their legal counsel have the right to conduct unrestricted ex parte interviews
with the defendant’s “present or former employees, partners, or owners concerning a
healthcare liability action.” Hall, 2014 WL 3555987, at *4, n.2.

The section is not without express limitations, however, and does not effectuate a
blanket waiver of confidentiality in healthcare information by the plaintiff. Defendants must
identify the healthcare providers to be interviewed, and the protection afforded by subsection
121(f)(2) is limited to disclosures made in conformance with the trial court’s order. Thus,
defendants may not seek to obtain protected healthcare information from healthcare providers

-16-
who are not expressly identified on the protective order, and disclosure of protected health
information by providers other than those identified on the protective order is not
permissible. See Tennessee Code Annotated § 63-1-117 (2010), § 63-2-101 (2010), § 68-11-
312, § 68-11-1501, § 68-11-1502 (2013), § 68-11-1503 (2013), § 68-11-1504 (2010).

By its express terms subsection 121(f)(1) limits the scope of ex parte interviews
conducted pursuant to a qualified protective order to healthcare information that is 1)
otherwise protected and 2) relevant to the litigation currently pending before the trial court.
The plaintiff may file a motion to limit or prohibit the ex parte interviews, which the trial
court may grant “upon good cause shown that a treating healthcare provider does not possess
relevant information as defined by the Tennessee Rules of Civil Procedure[.]” Tennessee
Code Annotated § 29-26-121(f)(1)(B). Subsection 121(f)(1)(C) provides that a qualified
protective order entered under the section “shall expressly limit the dissemination of any
protected health information to the litigation pending before the court.” The subsection
currently also requires defendants conducting interviews pursuant to the section to destroy
any protected healthcare information obtained in the course of such interviews or to return
it to the healthcare provider from whom it was obtained. Tenn. Code Ann. § 29-26-
121(f)(1)(C)(i) (Supp. 2014). It also now requires the qualified protective order to expressly
state that a treating healthcare providers’s participation in any interview under the section is
voluntary. Tenn. Code Ann. § 29-26-121(f)(1)(C)(ii) (Supp. 2014). With this background
in mind, we turn to whether the trial court had the authority under the section to add the
additional restrictions imposed on the qualified protective order entered in this case.

The Trial Court’s Additional Restrictions

In their brief, Defendants assert that the plain language of section 29-26-121(f)(1)
prohibits trial courts from imposing any restriction or condition on a qualified protective
order entered pursuant to the section other than those expressly provided by the section.
They contend that “the statute clearly and unambiguously sets forth the conditions with
which defendants must comply when interviewing non-party healthcare providers” and that
the trial court in this case “departed from longstanding principles of statutory construction
and exceeded its authority” by imposing conditions on the qualified protective order that are
inconsistent with the statute. Defendants contend that the statute does not require that the
interviews be conducted under oath, that a court reporter be present, or that interview
transcripts be filed with the court, and that the trial court “simply does not have the authority
to unilaterally and fundamentally alter the nature of the interviews contemplated by and
clearly provided for in the plain language of the statute.” Defendants assert that the trial
court’s amended order would result in interviews fundamentally different than those
permitted by the section, and that it places them “in the same position as they were prior to
the passage of the statute” in contravention of the General Assembly’s intent to facilitate the

-17-
early resolution of healthcare liability actions.

Defendants additionally contend that, by restricting the substantive subject matter of
the ex parte interviews to discussion of relevant protected health information, the trial court
prohibited discussions regarding standard of care issues, trial preparation, or “other topics
which may be related to the relevant [p]rotected [h]ealth [i]nformation.” Referencing the
hearings of this matter in the trial court, Defendants emphasize the trial court’s ruling that
the statute does not permit questioning regarding opinions relating to causation, the standard
of care or standard of practice, or anything other than protected health information that is
relevant to the lawsuit.

Mrs. Hayslett, on the other hand, asserts that the qualified protective order authorized
by the section constitutes a pretrial discovery order. She asserts that, as a pretrial discovery
matter, the order is “fully consigned to the oversight and discretion of trial judges.” Mrs.
Hayslett submits that the statutory language supports the addition of the conditions
incorporated by the trial court where section 29-26-121(f)(1)(B) provides that a “claimant
may file an objection seeking to limit or prohibit” defendants from conducting the ex parte
interviews. She asserts that, because the statute expressly limits ex parte interviews to those
healthcare providers who have relevant healthcare information, permitting a claimant to
move to further “limit” the interviews can only be interpreted as authorizing the trial court
to add limitations or conditions to the qualified protective order. She asserts that the
legislative history supports this interpretation. Mrs. Hayslett additionally asserts that
Defendants’ “contradictory arguments belie their opposition to a trial court’s discretion to
place conditions on a qualified protective order.” She asserts that, on one hand, Defendants
argue in their brief that the statute does not “require” a court reporter, that an interview be
under oath, or that a transcript be filed with the court, but assert on the other hand that it does
not “prohibit” them from seeking opinions regarding the standard of care and causation
issues. Mrs. Hayslett asserts that “simple logic will not allow Defendants to have it both
ways.” Her argument, as we understand it, is that Defendants’ assertion that the statute must
be narrowly construed to constrict the trial court’s authority with respect to limiting the ex
parte interviews only as expressly permitted by the statute, but broadly construed to permit
Defendants to conduct ex parte interviews on matters not specifically disallowed, is
internally contradictory.

Nature of the Section 29-26-121(f)(1) Interview

We begin our consideration of the parties’ arguments by noting that the parties
devoted considerable attention in their briefs and at oral argument to the question of whether
the qualified protective order permitted by section 29-26-121(f)(1) constitutes a “discovery”
order. Although they enable pretrial investigation of facts, the ex parte interviews permitted

-18-
by the section clearly do not fall within the parameters of “discovery” as defined by Rule 26
of the Tennessee Rules of Civil Procedure. Rule 26.01 provides:

Parties may obtain discovery by one or more of the following methods:
depositions upon oral examination or written questions; written interrogatories;
production of documents or things or permission to enter upon land or other
property for inspection and other purposes; physical and mental examinations;
and, requests for admission.

Rule 26.01 does not include ex parte interviews conducted outside the presence of
opposing parties or counsel. Alsip, 197 S.W.3d at 727-28 (ex parte communications are not
among the discovery methods authorized by Rule 26); Givens, 75 S.W.3d at 408-09 (implied
covenant of confidentiality prevents a physician from informally speaking to defendant’s
legal counsel about plaintiff’s medical information, but does not permit a physician to
withhold information “in the face of a subpoena or other request cloaked with the authority
of the court”). Indeed, the Alsip court predicated its decision, in large part, on its
determination that a defendant is able to discover all of a plaintiff’s relevant medical
information through the discovery procedures prescribed in Rule 26.01. Alsip, 197 S.W.3d
at 727. The Alsip court observed that all relevant medical information undisputedly is
discoverable, and noted that “the question is simply how the defendant may discover it.” Id.
(emphasis in the original). The court noted that the Tennessee Rules of Civil Procedure “do
not prescribe ex parte communications.” Id. at 728. Observing that the physician-patient
relationship remains confidential notwithstanding that relevant information is subject to
discovery pursuant to Rule 26, the Alsip court also noted that the right to confidentiality in
all “health information not relevant to the malpractice lawsuit” remains notwithstanding the
action. Id. at 727-28 (emphasis in the original). The court recognized that ex parte
communications permit potential “abuse” by providing defense counsel the opportunity to
inquire into facts or opinions about a plaintiff’s medical information or history that may not
be relevant or discoverable, and determined that “because the formal methods of discovery
suffice to disclose all medical information relevant to the case, the needs of the trial court
system, and hence the dictates of public policy, are fulfilled without ex parte
communications.” Id. at 728. Ex parte communications clearly do not fall within the
purview of “discovery” as its is defined by the Tennessee Rules of Civil Procedure.

Section 29-26-121(f)(1), however, authorizes a pretrial investigatory procedure that
nevertheless requires a court order, and Tennessee common law has long recognized the
broad inherent authority of trial courts to control proceedings in their courts. Hodges v.
Attorney Gen., 43 S.W.3d 918, 921 (Tenn. Ct. App. 2000). As noted above, the section
expressly grants the trial court the discretion to grant a motion to limit or prohibit ex parte
interviews upon good cause shown that the treating healthcare provider does not possess

-19-
relevant information as defined by the Tennessee Rules of Civil Procedure. Tenn. Code Ann.
§ 29-26-121(f)(1)(B). The section does not provide unlimited access to a plaintiff’s
healthcare providers, nor does it put defendants on “equal footing” with respect to the ability
to question a plaintiff’s healthcare providers. By its express terms, the statute is applicable
to protected healthcare information that is relevant to the lawsuit, at least with respect to
interviews conducted with healthcare providers who are not a defendant’s own agents. The
section also expressly limits the dissemination of protected healthcare information from all
healthcare providers to the litigation currently pending before the trial court and, as amended
in 2013, requires defendants to destroy or return any protected information gained in the
course of any interview. Tenn. Code Ann. § 29-26-121(f)(1)(C)(i). It also currently
mandates that a qualified protective order entered under the section expressly provides that
participation by a healthcare provider is voluntary. Tenn. Code Ann. § 29-26-
121(f)(1)(C)(ii).

To the extent to which the section permits the trial court to exercise its discretion over
the scope of ex parte interviews conducted under it, we review the trial court’s discretionary
decisions under an abuse of discretion standard. See Stevens, 418 S.W.3d at 553 (holding:
the trial court’s decision to excuse compliance with § 29-26-121(a) is reviewed for an abuse
of discretion); Deuel v. Surgical Clinic, PLLC, No. M2009-01551-COA-R3-CV, 2010 WL
3237297, at *6 (Tenn. Ct. App. Aug. 16, 2010) (citations omitted) (a trial court’s order
granting or denying a discovery protective order is reviewed for an abuse of discretion).
However, regardless of whether the ex parte interviews contemplated by the section may be
considered “discovery” or “procedural,” a trial court abuses its discretion when, inter alia,
it applies an incorrect legal standard. Stevens, 418 S.W.3d at 553. The initial question in this
case is not whether the trial court abused its discretion, but the extent and scope of the trial
court’s authority under the statute. Thus we turn to whether the statute affords the trial court
the authority to impose the conditions on the qualified protective order entered in this case.

Court Reporter, Oath, and Filing of Transcript

We turn first to whether section 29-26-121(f)(1) affords the trial court the authority
to require that a court reporter be present at ex parte interviews conducted pursuant to the
section, that all interviews be recorded, that they be conducted under oath, and that
transcripts of the interviews be filed under seal to enable Mrs. Hayslett to review them, after
good cause shown, for violation of privacy rights under HIPAA. We must agree with
Defendants that these conditions transform the investigatory interviews authorized by the
section into quasi-depositions in contravention of the substantive purpose of the section as
discussed herein.

Tennessee Rule of Civil Procedure 26.01 provides for discovery by several methods,

-20-
including depositions upon oral examination. A deposition is “[a] witnesses’s out-of-court
testimony that is reduced to writing[.]” Black’s Law Dictionary, 534 (10 th ed.). Testimony
is defined as “[e]vidence that a competent witness under oath or affirmation gives at trial or
in an affidavit or deposition.” Id. at 1704. Oath is defined as “[a] solemn declaration . . . that
one’s statement is true[,]” and “[t]he person making the oath implicitly invites punishment
if the statement is untrue[.]” Id. at 1239.

As discussed above, the ex parte interviews permitted by the statute do not constitute
formal discovery under current Rule 26 of the Tennessee Rules of Civil Procedure.
Additionally, section 26-29-121(f)(1) modified the supreme court’s holdings in Givens and
Alsip by overruling the court’s total prohibition against a defendant’s ex parte
communication with a plaintiff’s treating healthcare providers. The section restored a
defendant’s ability to conduct ex parte interviews outside of the formal discovery process but
within statutory parameters that do not extend to matters beyond protected health
information. Notwithstanding Mrs. Hayslett’s assertion in her brief that, contrary to
Defendant’s assertion, the section prescribes “interviews” and not “informal interviews,” the
section clearly does not contemplate the formalities of a deposition.

We are not insensitive to the concern expressed by Mrs. Hayslett and the trial court
that a defendant or counsel may abuse the ex parte interviews permitted by the section to
inquire into facts or opinions that are not relevant or that may not lead to the discovery of
admissible evidence. As this court noted at oral argument, the high ethical standards of the
Bar notwithstanding, our adversarial system does not rely on the “trust me” principle.
However, we observe that the potential for abuse was addressed by the Alsip court, Alsip, 197
S.W.3d at 728; the section provides no mechanism for review by the plaintiff; and the section
expressly authorizes defendants and their attorneys the “right” to interview relevant
healthcare providers “outside the presence of claimant or claimant’s counsel” in order to
obtain relevant protected health information. As also noted by the court in Alsip, a plaintiff’s
relevant healthcare information is discoverable and treating healthcare providers certainly
may be deposed as provided by Rule 26. We presume the General Assembly was aware of
the state of the law and the concerns expressed by the court in Givens and Alsip when it
enacted section 29-26-121(f). See Lee Med., 312 S.W.3d at 527.

We additionally observe that section 29-26-121(f)(1) is limited to health information
that is protected and relevant to the litigation pending before the trial court. The current
version of the statute, moreover, expressly requires qualified protective orders to state that
a healthcare provider’s participation in an ex parte interview is voluntary. The statute also
provides that any disclosure of protected health information made in response to an order
entered under the section shall be deemed permissible under Tennessee law, notwithstanding
any other Tennessee statute or common law. Tenn. Code Ann. § 29-26-121(f)(2). Nothing

-21-
in the statute as it existed in 2012 prohibited a healthcare provider from refusing to
participate in an ex parte interview, from refusing to respond to particular questions, from
requiring or disallowing presence of counsel, or from otherwise refusing to discuss his
patient’s healthcare information other than in a formal deposition.

Because the trial court’s order requires: 1) healthcare providers respond under oath
in interviews permitted under subsection 121(f)(1); 2) the interviews be held in the presence
of a court reporter; and 3) the interviews be recorded and filed under seal for potential review
by Mrs. Hayslett and her counsel, thereby transforming the ex parte interviews authorized
by the section into quasi-depositions in contravention of the legislative purpose of the statute,
we hold that Tennessee Code Annotated § 29-26-121(f) does not provide a court with the
authority to include those provisions in the qualified protective order.

Restricting the Order to “relevant protected health information”

We next turn to whether the trial court erred by including in the qualified protective
order that:

Relevant Protected Health Information may be elicited directly or indirectly
from a healthcare provider during the ex parte interview. Defendants should
not attempt to elicit or discuss Protected Health Information which is not
relevant to the issues in this lawsuit. This does not restrict the Defendants or
their attorneys from discussing non-substantive matters unrelated to the
patient’s Protected Health Information.

As noted above, the qualified protective order authorized by section 29-26-121(f)(1) is
expressly limited to relevant “protected health information.” An order entered pursuant to
the section gives defendants and their counsel the right to obtain such information through
ex parte interviews with the plaintiff’s treating healthcare providers. Tenn. Code Ann. § 29-
26-121(f)(1). Defendants in this case do not contend that a qualified protective order
entered under the section permits dissemination of protected healthcare information that is
irrelevant to the litigation. Rather, Defendants’ argument, as we understand it, is that the
section permits defendants and their counsel to elicit opinions regarding whether a
defendant’s acts or omissions caused the plaintiff’s injury, the standard of care, and other
matters during the ex parte interviews authorized by the section.10 We disagree.

10
The trial court’s order in this case does not specifically set-forth the “non-substantive matters” that
it disallows. Although a trial court speaks through its written orders and not through oral statements,
Alexander v. JB Partners, 280 S.W.3d 772, 777 (Tenn. Ct. App. 2011), the trial court is best situated to
interpret its own orders. Jackman v. Jackman, 373 S.W.3d 535 (Tenn. Ct. App. 2011). It is clear from the

-22-
 In Alsip, the supreme court unambiguously disallowed all ex parte communication
between defense counsel and a plaintiff’s treating physicians as a matter of public policy.
Alsip, 197 S.W.3d at 722. By its terms, section 29-26-121(f)(1) is limited to ex parte
interviews regarding relevant protected health information that is under the control of
plaintiff’s treating healthcare providers and otherwise confidential. The section modified the
supreme court’s holdings in Givens and Alsip that public policy and the implied contract of
confidentiality prohibited healthcare providers from discussing a patient’s healthcare
information with third parties other than as otherwise required by law and the formal
discovery process. It is designed to enable defendants to ascertain identifying information
and relevant healthcare information more expeditiously than otherwise allowed by the formal
discovery process in order “to evaluate the substantive merits of a plaintiff’s claim[.]”
Stevens, 418 S.W.3d at 555. Contrary to Defendants’ arguments in their brief and at the
February 2014 hearings before the trial court, there is nothing in the statute to indicate that
the General Assembly intended the section to serve as a mechanism to prepare potential
witnesses for questioning either in formal discovery or at trial. The opportunity granted by
the subsection is a limited one; it is limited to interviewing a plaintiff’s treating healthcare
providers to obtain information - specifically, the plaintiff’s relevant protected health
information that is in the direct knowledge and control of the plaintiff’s treating healthcare
providers. See id. at 558. It does not extend to opinions regarding whether a defendant
healthcare provider’s acts or failure to act, as the case may be, caused the injury complained
of by plaintiff in the lawsuit, or to the standard of care or standard of practice employed by
the defendants. This construction of the scope of the ex parte interviews permitted by section
29-26-121(f)(1) is further supported by subsection 121(f)(3), which contains no limitation
or restriction with respect to a defendant’s ex parte communication with the defendant’s own
partners, employees or, assuming an institutional defendant, owners. Because this particular
provision in the trial court’s qualified protective order does no more than reflect the
parameters of the statute, we discern no error and affirm this provision.

Holding

In light of the foregoing, we reverse in part affirm in part, and remand this matter to

transcript of the February 2014 hearing that the trial court interpreted its order as prohibiting ex parte
questioning by Defendants with respect to causation, the standard of care, the standard of practice or any
matter requiring an opinion about a Defendant’s acts or omissions. The trial court stated that the conditions
contained in the order “specifically exclude even from the protected health information area questions about
the doctor’s opinion on standard of care required for this kind of treatment and standard of practice, that sort
of thing. . . . I don’t think the statute extends to the expert opinions.” We additionally observe that a
considerable portion of the hearing before the trial court was devoted to the nature and extent of questioning
permitted by the qualified protective order, and that defense counsel sought detailed clarification in order
to abide by the trial court’s order and avoid any possible contempt.

-23-
the trial court for further proceedings consistent with this Opinion. Costs on appeal are taxed
one-half to the Plaintiff/Appellee, Alethea Dean-Hayslett and one-half to
Defendants/Appellants, Methodist Healthcare Memphis Hospitals, a Tennessee Corporation,
d/b/a Methodist Hospital North and Mohamad Moughrabieh, M.D. As noted above, this is
an extraordinary appeal pursuant to Rule 10 of the Tennessee Rules of Appellate Procedure
and is limited to the issues for which the appeal was granted. We accordingly decline to
address Defendants’ assertion that the statute denies the trial court the authority in any
circumstance to impose any condition or limitation on a qualified protective order other than
as expressly provided by section 29-26-121(f)(1) as beyond the scope of the issue certified
for extraordinary appeal and, therefore, advisory. To the extent that the concurring opinion
suggests that we reached a determination on that issue, we disagree.

_________________________________
ARNOLD B. GOLDIN, JUDGE

-24-