The Tennessee Supreme Court has granted an application for permission to appeal, challenging the constitutionality of Tennessee Code Annotated § 29-26-121(f) under the Separation of Powers Doctrine of the Tennessee Constitution. The constitutional challenge to the statutory provision is led by Neal & Harwell attorneys Philip N. Elbert and Jeffrey A. Zager, who previously obtained a ruling in the Davidson County Circuit Court, in a separate matter, declaring the statute unconstitutional.

At issue is 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.

The case is Willeford v. Klepper, et al., No. M2016-01491-SC-R11-CV.