On November 18, 2016, the Sixth Circuit Court for Davidson County, Tennessee entered a Memorandum Order declaring that Tennessee Code Annotated § 29-26-121(f)(1) and (2) violate the separation of powers doctrine and are unconstitutional.

The constitutional challenge to the statutory provision was led by Neal & Harwell attorneys Philip N. Elbert and Jeffrey A. Zager. At issue was a provision of the Tennessee Health Care Liability Act that allows defendants in health care liability actions to petition a court for a qualified protective order allowing the defendant the right to obtain protected health information during interviews with a plaintiff’s treating healthcare providers outside the presence of plaintiff’s counsel and without the plaintiff’s consent. The statute specifically requires that the petition for qualified protective order must be granted by a court, unless the plaintiff can demonstrate that the treating healthcare provider at issue does not possess relevant information.

Prior to the enactment of Tennessee Code Annotated § 29-26-121(f), the Tennessee Supreme Court prohibited such ex parte communications as a violation of the implied covenant of confidentiality between physicians and their patients. See Alsip v. Johnson City Medical Center, 197 S.W.3d 722 (Tenn. 2006). In declaring the statutory provision unconstitutional, the Court concluded that “Tennessee Code Annotated § 29-26-121(f)(1) and (2) create a procedure that directly conflicts with the judiciary’s framework laid out in Alsip and by extension Tenn. R. Civ. P. 26. The statute neither fits into that framework nor supplements it. Rather, it seeks to abolish that framework. It is a clear violation of the separation of powers doctrine and is therefore unconstitutional.”

The case is Hammonds v. HCA Health Services of Tennessee, Inc. d/b/a Tristar Southern Hills Medical Center, et al., Davidson County Circuit Court, Case No. 15C3058.