A key tool for the defense of medical providers in Tennessee facing malpractice liability has been held to be not preempted by federal law. On June 3, 2016, the Tennessee Court of Appeals, in Caldwell v. Baptist Memorial Hospital, upheld a defense counsel’s state statutory right to conduct ex parte interviews with a non-party treating physician in the context of a health care liability action. In 2012, the Tennessee legislature enacted Tenn. Code Ann. § 29-26-121(f) as part of the Health Care Liability Act. The statute permits the voluntary disclosure of a plaintiff’s protected health information from non-party treating physicians in an ex parte setting if the doctor has “relevant” information and certain use and dissemination restrictions are met. In Caldwell, the trial court denied the defendant’s petition for permission to conduct ex parte interviews pursuant to the statute, holding that Tenn. Code Ann. § 29-26-121(f) conflicted with the safeguards contemplated under HIPAA. Thus, at issue on appeal was whether HIPAA preempted Tenn. Code Ann. § 29-26-121(f).
The Caldwell court opined that the statute was not preempted by HIPAA because it “does not stand as an obstacle to the accomplishment of the purposes of HIPAA.” Rather, the court opined that, by restricting the use and dissemination of the disclosed information to the pending litigation, the statute mirrored certain protections that were mandated under HIPAA. The court also recognized additional safeguards not found in HIPAA, referencing the statute’s requirement that the physician’s participation be voluntary. In light of these protections, the court opined that the statutes were not in conflict and thus preemption was lacking.
The court also rejected the policy arguments posed by plaintiff in support of his preemption arguments. In so holding, the court acknowledged that, prior to 2012, Tennessee courts disallowed ex parte meetings between defense counsel and a plaintiff’s treating physician on the ground that such meetings unfairly infringed upon the implied covenant of confidentiality between a patient and physician. Because “ex parte communications unnecessarily endanger the integrity of the covenant of confidentiality between patient and physician by risking disclosure of [the plaintiff’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 [plaintiff’s] relevant medical information,” such meetings were almost always barred as a matter of Tennessee law prior to 2012. See, e.g., Alsip v. Johnson City Medical Center, 197 S.W.3d 722, 723-24 (Tenn. 2006).
The Caldwell court declined, however, to adopt a policy decision that contradicted a statutory provision, holding, “[b]y enacting Tenn. Code Ann. § 29-26-121(f), the legislature rejected the policy determination reflected in Alsip in favor of allowing ex parte interviews.”
The opinion was rendered on June 3, 2016. It remains uncertain if appellate review will be sought.