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The Tennessee Court of Appeals recently decided
an important issue that comes up often in medical malpractice (health care liability)
cause of actions in Tennessee. The case
of Cheryl Hall v.
James H. Crenshaw, M.D. et al, No. W2013-00662-COA-R9-CV, 2014 WL 3555987
(Tenn. Ct. App. 2014)
dealt with a situation where the plaintiff sued the Jackson Clinic under a
vicarious liability theory for the actions of one of its physicians. The plaintiff then desired to take the
depositions of two employee physician shareholders of the Jackson Clinic who
were also medical doctors that treated the plaintiff. The Jackson Clinic filed a motion asking the
trial court for permission to meet ex-parte with these doctors (who were
employees of the defendant Jackson Clinic) to discuss matters relevant to the
case including the treatment of the decedent.
They wanted to meet with them prior to their depositions so they could
properly prepare them for their testimony.
The trial court denied allowing the ex-parte meeting between Jackson
Clinic defense counsel and the physicians who were employed by the Jackson
Clinic based on the Alsip v. Johnson
Medical Center, 197 S.W.3d 722 (Tenn. 2006) decision.
The Jackson Clinic appealed this trial
court decision. Each of the doctors who
were going to be deposed by the plaintiff submitted affidavits stating they
were shareholders of the Jackson Clinic and that they desired to be represented
by the Rainey, Kizer, Reviere & Bell, P.L.C. defense attorneys in this
matter. The Tennessee Court of Appeals performed
a significant analysis of the case law on ex-parte communications between
defense counsel and physicians in the context of healthcare liability actions
in Tennessee. This is an interesting
discussion and is worth reading if you want more details on these issues or are
dealing with such an issues in your case (but this discussion is much too
lengthy for this post).
At the end of the day the Court found that
neither “Alsip nor Givens would bar counsel
for the Jackson Clinic from conferring ex
parte with Drs. Cherry and Mariencheck, since both are employees of the
Jackson Clinic . . . We must respectfully conclude that the trial court erred
in declining to permit ex parte
communications between defense counsel for the Jackson Clinic and Drs. Cherry
and Mariencheck.” Hall at 9. As a result, the Court held that the
attorneys for the defendant Jackson Clinic can communicate with non-party
physician employees of the defendant clinic in order to prepare them for
depositions in an ex parte manner.
It is important to note that effective
July 1, 2012, the Tennessee Court of Appeals enacted T.C.A. § 29-26-121(f)(3)
which now provides as follows:
(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.
The Tennessee Court
of Appeals in this Hall case discussed this amendment and noted that T.C.A. § 29-26-121(f)(3),
“appears to assume the existence of such a right but not expressly create it.” Hall at Footnote 2. This statutory amendment did not apply to this
case because the events in the Hall case took place prior to the time of the
enactment of this statute. As a result,
this decision is important because although T.C.A. § 29-26-121(f)(3) appears to
imply there is a right for ex-parte communication in this context, this
Tennessee Court of Appeals panel did not believe that this statute actually
created this right. As a result, it was
important to have this opinion which holds that such a right exists (although
this issue certainly may be dealt with by the Tennessee Supreme Court at a
later date). For now, anyone trying to
have these ex parte communications
should cite the Hall case
and the statutory amendment found in T.C.A. § 29-26-121(f)(3) (also referred to
as the “Givens Fix”).
Follow me on Twitter at @jasonalee for updates from the Tennessee Defense Litigation
blog.
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