Medical Malpractice - Ex-Parte Communications Between Medical Practice Defense Counsel and Non-Party Physicians Employed by Practice

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.”

Medical Malpractice/Health Care Liability Action - Ex parte communication with health care providers

Analysis:  The Tennessee legislature adopted Public Chapter No. 926 which was signed into law by Governor Bill Haslam on May 10, 2012.  This bill amended T.C.A. § 29-26-121 by adding subsection (f) to the statute.  This statute now provides a method for defendants and their counsel to obtain protected health information outside the presence of the claimant or claimant’s counsel. 

T.C.A. § 29-26-121(f) provides as follows: 

(f)(1) Upon the filing of any “healthcare liability action,” as defined in § 29-26-101(a)(1), the named defendant(s) may petition the court for a qualified protective order allowing the defendant(s) 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 “health care providers,” as defined by § 29-26-101(a)(2). Such petition shall be granted under the following conditions:

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

(B) The claimant may file an objection seeking to limit or prohibit the defendant(s) or the defendant(s)' 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

(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.

As a result, defendants may petition the court for the ability to conduct ex parte communication with the patient’s treating “health care provider” as defined in T.C.A. § 29-26-101(a)(2).  This statute defines “health care providers” as follows: 

Motorcycle Operator Liability – It is a violation of Tennessee law if passenger child's feet are not on footpegs of motorcycle.

The Tennessee legislature recently adopted Public Chapter No. 907 which was signed into law by Governor Bill Haslam on May 10, 2012.  This bill amended T.C.A. § 55-8-164 to add a new subsection (e).  This addition to the statute makes it a Class C misdemeanor in the State of Tennessee when an operator of a motorcycle carries a child whose feet are not on the footpegs of the motorcycle. 

T.C.A. § 55-8-164 provides as follows (the section added by this amendment is in bold):

(a) A person operating a motorcycle shall ride only upon the permanent and regular seat attached thereto, and such operator shall not carry any other person, nor shall any other person ride on a motorcycle, unless the motorcycle is designed to carry more than one (1) person, in which event a passenger may ride upon the permanent and regular seat if designed for two (2) persons, or upon another seat firmly attached to the rear or side of the operator.

(b) A person shall ride upon a motorcycle only while sitting astride the seat, headlamp illuminated, facing forward, with one (1) leg on each side of the motorcycle.

(c) No person shall operate a motorcycle while carrying any package, bundle, or other article which prevents the person from keeping both hands on the handlebars.

(d) No operator shall carry any person, nor shall any person ride, in a position that will interfere with the operation or control of the motorcycle or the view of the operator.

(e)(1) An operator commits an offense who, on the streets of any municipality, roads of any county, or the highways of this state, carries a child as a passenger on a motorcycle whose feet are not on footpegs.  Provided, the provisions of this subsection shall not apply to persons riding in a motorcycle sidecar. 

(2)(A) A violation of this subsection is a Class C misdemeanor…

This amendment to the bill provides a potential basis for liability when an operator of a motorcycle carries a child who is not tall enough to reach the footpegs.  In fact, this statute does not even limit the violation to circumstances where an individual is unable to reach the footpegs.  Rather the motorcycle operator can be cited simply when the child’s feet are not on the footpegs.  Thi...

Premises Liability – Duty of possessor of real property to child trespassers

The Tennessee legislature recently addressed the duty of a possessor of real property to adult and child trespassers.  The legislature adopted Public Chapter No. 922 which was signed into law by Governor Bill Haslam on May 10, 2012.  This Act established T.C.A. § 29-34-208 and is effective on the date the bill was signed into law, May 10, 2012.  This post will address the portion of this bill that pertains to the responsibility of a possessor of real property to child trespassers.  Child trespassers are treated differently from adult trespassers in this statute.  A prior post addressed the duty for adult trespassers. 

The new T.C.A. § 29-34-208 (a), (c) & (d) provide as follows: 

(a) As used in this section:

(1) “Possessor of real property” means the owner, lessee, renter, or other lawful occupant of real property; and

(2) “Trespasser” means a person who enters or remains on the real property of another without actual or implied permission, or a person who engages in conduct that constitutes a criminal trespass offense under §§ 39-14-405--39-14-407.

…

(c) Notwithstanding subsection (b), a possessor of real property is subject to liability for physical injury or death to a child trespasser if:

(1) The possessor maintained a dangerous condition that was not a natural condition and the possessor knew or should have known the condition posed a risk of death or serious bodily harm to trespassing children;

(2) The possessor knew or should have known children were likely to trespass onto the property, either because they would be lured there by the dangerous condition or because children regularly use the property as a playground;

(3) The dangerous condition was not apparent, or children, because of their youth, would be unlikely to discover and comprehend the ri...

Premises Liability – Duty of possessor of real property to adult trespassers

Recreational Vehicles - New Tennessee carbon monoxide detector requirement for RV’s

On September 18, 2011, a tragic event occurred in Clarksville, Tennessee.  Five bikers were found dead at a Bikers Who Care charity event at the Clarksville Speedway.  At that event, these five individuals lost their lives due to carbon monoxide poisoning from a recreational vehicle (also known as an “RV”).  According to a USA Today article, a small storage hatch on the RV did not close properly.  As a result, carbon monoxide entered the RV and killed five individuals that were in the recreational vehicle.  The USA Today article can be found at: http://www.usatoday.com/news/nation/story/2011-09-18/biker-deaths-tennessee/50457812/1.

As a result of this tragic occurrence the State of Tennessee legislature passed Public Chapter 568, which was signed into law by Governor Haslam on March 13, 2012.  This legislation added T.C.A. § 55-9-218 which provides: 

(a) A recreational vehicle that is leased or rented must have in such vehicle a carbon monoxide detector in proper working order. All leases or rental agreements for a recreational vehicle shall contain language that the carbon monoxide detector in such recreational vehicle was tested, is in proper working order, and that a demonstration of the use of such equipment was performed for the lessee of the recreational vehicle. All leases or rental agreements for recreational vehicles shall contain the following statement, an acknowledgement of which shall be initialed or signed by the lessor and lessee of such vehicle:

I CERTIFY THAT AT THE TIME OF THE RENTAL/LEASE OF THIS VEHICLE THAT IT IS EQUIPPED WITH A WORKING CARBON MONOXIDE DETECTOR.

(b) An action for civil damages in a court of competent jurisdiction may be brought against any lessor found violating this section, and damages sustained as a consequence of the lessor's violations may be recovered, together with all costs and attorneys' fees.

The entire bill can be found at http://www.tn.gov/sos/acts/107/pub/pc0568.pdf.  This statute went into effect on July 1, 2012 and requires that any RV that is "leased or rented" must have a working carbon monoxide detector inside the vehicle.&...

Tennessee Tort Reform - Exceptions to caps on damages

As established by the Tennessee tort reform legislation of 2011, T.C.A. § 29-39-102 provides for a $750,000.00 or $1,000.00.00 cap on "non-economic damages" based on certain factors (See http://www.tennesseedefenselitigation.com/BlogEntry.aspx?id=21).  However, these caps have certain exceptions.  These exceptions are found in subsection T.C.A. § 29-39-102(h) which provides as follows:

(h) The limitation on the amount of noneconomic damages imposed by subdivision (a)(2) and subsections (b)-(e) shall not apply to personal injury and wrongful death actions:

(1) If the defendant had a specific intent to inflict serious physical injury, and the defendant's intentional conduct did, in fact, injure the plaintiff;

(2) If the defendant intentionally falsified, destroyed or concealed records containing material evidence with the purpose of wrongfully evading liability in the case at issue; provided, however, that this subsection (h) does not apply to the good faith withholding of records pursuant to privileges and other laws applicable to discovery, nor does it apply to the management of records in the normal course of business or in compliance with the defendant's document retention policy or state or federal regulations; or

(3) If the defendant was under the influence of alcohol, drugs or any other intoxicant or stimulant, resulting in the defendant's judgment being substantially impaired, and causing the injuries or death. For purposes of this subsection (h), a defendant shall not be deemed to be under the influence of drugs or any other intoxicant or stimulant, if the defendant was using lawfully prescribed drugs administered in accordance with a prescription or over-the-counter drugs in accordance with the written instructions of the manufacturer.

(4) If the defendant's act or omission results in the defendant being convicted of a felony under the laws of this state, another state, or under federal law, and that act or omission caused the damages or injuries;

It is important to note that the original bill did not have the fourth exception found in (h)(4).  That exception was added on June 12, 2012 with the provision that "this act shall take effect upon becoming a law, the public welfare requiring it." See bill found at http://www.tn.gov/sos/acts/107/pub/pc0902.pdf.  Since the addition of subsection (h)(4) will most likely be interpreted as a substantive change to the statute it will be interesting to see if the courts apply this retroactively to the date that the tort reform bill went into effect for all injuries or events that occur on or after October 1, 2011.  Most likely, however, the fourth exception will only apply to injuries or events that occur on or after June 12, 2012.    

Tennessee Tort Reform- Caps on damages

The "Tennessee Civil Justice Act of 2011" is one of the most important actions of the Tennessee Legislature in recent history.  This Act, also referred to as the “Tennessee Tort Reform Bill”, took effect on October 1, 2011 and applies to "all liability actions for injuries, deaths, and losses covered by this act which accrue on or after such date."  Here is a link to the bill that was actually signed into law: http://www.tn.gov/sos/acts/107/pub/pc0510.pdf.  This law fundamentally changed many aspects of tort law in Tennessee. 

To this point there are no substantive decisions interpreting this tort reform bill because it only applies to injuries or events that occur on or after October 1, 2011.  Obviously, even if an injury occurred on October 2, 2011, it will take some time for a lawsuit to be filed, a substantive motion to be decided, an appeal to occur, and for the Tennessee Court of Appeals to issue a decision.  In fact, it will probably take another six months to a year before we will see any real court interpretation of the Tennessee Civil Justice Act of 2011.  Interestingly, the tort reform bill has already been amended at least one time.  On June 12, 2012 Governor Bill Haslam signed an amendment of certain portions of T.C.A. § 29-39-102 and T.C.A. § 29-39-104.  This bill can be found here: http://www.tn.gov/sos/acts/107/pub/pc0902.pdf.

Regardless, it is important to take time to note the important aspects of the tort reform bill because it will certainly have an impact on Tennessee cases in the future.

Section 10 of the bill created T.C.A. § 29-39-102.  This is a long statute which has many nuances, however, for now we will briefly discuss one of the key portions which are the caps that now apply to civil actions filed in Tennessee.  Section (a) provides as follows:

(a) In a civil action, each injured plaintiff may be awarded:

(1) Compensation for economic damages suffered by each injured plaintiff; and

(2) Compensation for any noneconomic damages suffered by each injured plaintiff not to exceed seven hundred fifty thousand dollars ($750,000) for all...