                   IN THE COURT OF APPEALS OF TENNESSEE
                                AT JACKSON
                                     November 12, 2014 Session

    ALETHEA DEAN-HAYSLETT, AS SURVIVING WIDOW OF JERRY
         HAYSLETT v. METHODIST HEALTHCARE, ET AL.

                       Appeal from the Circuit Court for Shelby County
                        No. CT00475412     Robert L. Childers, Judge




                  No. W2014-00625-COA-R10-CV - Filed January 20, 2015




J. STEVEN STAFFORD, P.J.,W.S., concurring.

       I concur in the result reached by the majority Opinion that the trial court erred in
imposing additional restrictions on Defendants’ counsel with regard to the requested ex parte
interviews in this particular case. In reaching that result, I must agree that the decision in
Alsip v. Johnson City Medical Center, 197 S.W.3d 722 (Tenn. 2006), clearly delineates
between the requested ex parte interviews, now authorized by Tennessee Code Annotated
Section 29-26-121(f)(1), and traditional discovery methods outlined by Rule 26 of the
Tennessee Rules of Civil Procedure.

       I write separately, however, to express my concern with the apparent lack of discretion
afforded a trial court by Tennessee Code Annotated Section 29-26-121(f)(1).1 From my
reading of Tennessee Code Annotated Section 29-26-121(f)(1), the General Assembly has

        1
          In its conclusion, the majority appears to distance itself from a bright-line holding that Tennessee
Code Annotated Section 29-26-121(f) affords the trial court no discretion to impose any restrictions on
qualified protective orders when such restrictions are not expressly authorized by the statute. The majority
Opinion, however, repeatedly emphasizes that the authority to impose conditions on the grant of a qualified
protective order is governed solely by the statute, rather than any inherent powers of the court, or the court’s
power pursuant to Rule 26 of the Tennessee Rules of Civil Procedure. As discussed supra, the express
language of the statute includes only an extremely narrow avenue to avoid the grant of a qualified protective
order. In addition, the majority Opinion, unlike the courts in other jurisdictions, discussed infra, offers no
guidance to trial courts as to when additional conditions may be imposed on the grant of a qualified
protective order. Under these circumstances, I think it fair to express my concern that the majority Opinion
will be read to preclude a trial court from imposing any conditions on the grant of a qualified protective
order that are not expressly authorized by Tennessee Code Annotated Section 29-26-121(f).
provided that so long as certain limitations are included in the qualified protective order, such
order “shall be granted[.]” Tennessee courts have repeatedly held that the General
Assembly’s use of the word “shall” removes the court’s discretion and instead indicates that
the action governed by the statute is mandatory. See, e.g., Bellamy v. Cracker Barrel Old
Country Store, Inc., 302 S.W.3d 278, 281 (Tenn. 2009) (“When ‘shall’ is used in a statute
or rule, the requirement is mandatory.”); Bolin v. Tenn. Farmer’s Mut. Ins. Co., 614
S.W.2d 566, 569 (Tenn. 1981) (“The general rule is that the word ‘shall’ ordinarily is
construed to be mandatory rather than merely directory.”); Stubbs v. State, 393 S.W.2d 150,
154 (Tenn. 1965) (noting that by using the word “shall,” the General Assembly “leaves no
room for discretion”). Accordingly, so long as the stated “conditions” are met, it appears that
the trial court has no choice but to grant the qualified protective order. Indeed, the General
Assembly has gone so far as to state that defendants meeting the express limitations of the
statute have more than the standing to seek a qualified protective order—they have the
“right” to obtain one. See Tenn. Code Ann. § 29-26-121(f)(1).

        The only exception to the broad right to a qualified protective order allows a
plaintiff/patient to seek to limit or prohibit an ex parte interview when the plaintiff/patient
can show “good cause . . . that a treating healthcare provider does not possess relevant
information.” See Tenn. Code Ann. § 29-26-121(f)(1)(B). This exception, however, is
extremely narrow. From my reading, Tennessee Code Annotated Section 29-26-121(f)(1)(B)
only allows a court to limit or prohibit an ex parte interview with a treating physician based
upon a finding that the physician can offer no evidence relevant to the litigation. It provides
no discretion to the trial court to place limits on ex parte interviews where there is high risk
that irrelevant and prejudicial information could be inadvertently or intentionally
disseminated, nor upon any other showing that such limitation or prohibition may be
warranted based upon the facts of that particular case. By limiting the court’s power to place
additional restrictions on the grant of qualified protective orders, as may be necessary
depending on the circumstances of each individual case, I am disquieted by the fact that
Tennessee Code Annotated Section 29-26-121(f)(1) deprives the court of one of its greatest
strengths—the ability to evaluate cases on an individual basis, rather than by pandemic
approval or prohibition.

       The practical effect of the majority’s interpretation of Tennessee Code Annotated
Section 29-26-121(f)(1) also comes perilously close to infringing on the inherent power of
the courts.2 As explained by the majority Opinion, it is well-settled that Tennessee courts are


        2
         It is important to note that the appeal in this case is interlocutory in nature and confined only to the
issue of whether Tennessee Code Annotated Section 29-26-121(f)(1) permits the trial court to place the
discussed restrictions on a qualified protective order. Any question regarding whether Tennessee Code
Annotated Section 29-26-121(f)(1) violates any constitutional doctrines is not before this Court.

                                                      -2-
afforded broad inherent authority over their court proceedings. See Hodges v. Attorney Gen.,
43 S.W.3d 918, 921 (Tenn. Ct. App. 2000). The extent of the trial court’s inherent authority
has been a subject of much scholarly debate. See generally Felix F. Stumpf, Inherent Powers
of the Courts 1 (1994) (noting that while the inherent power of the courts has been
extensively exercised, “learned writers have described the concept as . . . ‘a problem of
definition that has eluded or bedeviled many courts and commentators for years’”) (quoting
Stephen B. Burbank, Sanctions in the Proposed Amendments to the Federal Rules of Civil
Procedure: Some Questions About Power, 11 Hofstra L. Rev. 997, 1004 (1983)). To be sure,
Tennessee courts have inherent power to control their own dockets, see State v. Benn, 713
S.W.2d 308, 310 (Tenn.1986), to enforce their judgments, see State ex rel. Stall v. City of
Knoxville, 365 S.W.2d 433, 435 (Tenn.1963), and to punish for contempt. See Baker v.
State, 417 S.W.3d 428, 435 (Tenn. 2013). In addition, our Tennessee Supreme Court has
further inherent power to “administer the rules pertaining to the licensing of attorneys,”
Skouteris v. Bd. of Prof’l Responsibility, 430 S.W.3d 359, 362 (Tenn. 2014), “to promulgate
rules governing the practice and procedure of the courts of this state,” State v. Mallard, 40
S.W.3d 473, 480–81 (Tenn. 2001), and to order reassignment of a case to a different judge
on remand. Rudd v. Rudd, No. W2011-01007-COA-R3-CV, 2011 WL 6777030, at *7
(Tenn. Ct. App. Dec.22, 2011) (applying the rule to both the intermediate appellate court and
the Tennessee Supreme Court) (citing 5 Am.Jur.2d Appellate Review § 754 (2007)).

       Based upon the plain language of the statute, I can find no legal basis to dispute the
majority Opinion’s conclusion that Tennessee Code Annotated Section 29-26-121(f)(1)
allows the trial court no discretion to impose the type of restrictions imposed in this case;
however, I am troubled by the fact that Tennessee Code Annotated Section 29-26-121(f)(1)
appears to deprive the court of its inherent power to protect the rights of litigants, see State
v. Jordan, 325 S.W.3d 1, 52 (Tenn. 2010) (quoting State v. Lawrence, 167 N.W.2d 912, 914
(Iowa 1969)), as well as to defend the authority and integrity of the courts. See Daniels v.
Grimac, 342 S.W.3d 511, 517 (Tenn. Ct. App. 2010 (citing Black v. Blount, 938 S.W.2d
394, 397 (Tenn. 1996). Courts in other jurisdictions have held that this inherent power of
protection extends to the trial court’s right to “enter prophylactic orders that will protect
parties’ right to a fair trial.” Munoz v. City of New York, No. 11 Civ. 7402(JMF), 2013 WL
1953180, at *2 (S.D. N.Y. May 10, 2013) (citing Constand v. Cosby, 229 F.R.D. 472,
477–78 (E.D. Pa. 2005)); see also People v. Engram, 50 Cal.4th 1131, 240 P.3d 237, 248
(Cal. 2010) (holding that the trial court’s inherent power includes the authority and
responsibility to “protect and safeguard the rights and interests of all litigants with matters
before the court, and to promote the fair and efficient administration of justice”). Decisions
by our sister states have further indicated that courts have inherent power to protect litigants
and third parties from unfair invasions of their privacy. See Civil Rights for Seniors v. AOC,
313 P.3d 216, (Nev. 2013) (holding that the judiciary had inherent power to maintain certain
documents as confidential, in order to protect the privacy of program participants); In re

                                              -3-
M.B., 819 A.2d 59, 62 (Pa. Super. Ct. 2003) (recognizing that courts have “inherent power
to control access to their records and proceedings and may deny access when
appropriate—for example, to protect the privacy rights of individuals”); Fanning v. White,
No. 82-L-140, 1984 WL 276332, at *5 (Va. Cir. Ct. Oct. 5, 1984) (rejecting an interpretation
of a statute that would “oust[] courts of any inherent power to limit inspection [of court
records] to protect” the privacy of litigants and third parties); Plaquemines Parish Comm’n
Council v. Delta Dev.Co., Inc., 472 So.2d 560, 571 (La. 1985) (J., Lemon, dissenting)
(stating that courts have inherent powers to enter orders to protect litigants from abuse or
injustice, including to protect a litigant’s privacy).

       At least two other courts have recognized the delicate balance of power associated
with the granting of these ex parte interviews. As such, these courts have encouraged trial
judges to impose restrictions on them in order to protect the plaintiff’s well-established right
to medical privacy, as well as the court’s ability to punish parties for failing to follow the
directives of the court. For example in Strayhorne v. Caruso, No. 11–15216, 2014 WL
916814 (E.D. Mich. March 10, 2014), the District Court for the Eastern District of Michigan
refused to allow an ex parte interview of the plaintiff’s treating physician, citing the
enormous risk to the patient/plaintiff involved with such informal practices. Id. at *3. As
explained by the district court:

              To protect that interest, HIPAA clearly states that only
              “expressly authorized” protected health information may be
              disclosed in judicial proceedings. See 45 C.F.R. §
              164.512(e)(1)(i). Yet one cannot expect a medical provider to
              know what protected information is relevant to the plaintiff’s
              claims and what information is not relevant; thus creating the
              risk that confidential information will be shared even where
              defense counsel has not intended to elicit such information. See
              Piehl [v. Saheta], [No. CCB-13-254,] 2013 WL 2470128, at *2
              [(D. Md. June 5, 2013)] (citing Harlan v. Lewis, 141 F.R.D.
              107, 112 (E.D. Ark. 1992) (“The physician, largely unschooled
              in legal matters, cannot be expected to make the sometimes
              difficult determination of what matters are relevant to the
              plaintiff’s claims. The participation of both parties’ counsel in
              formal discovery will help to insure that these questions are
              resolved to the satisfaction of both parties.”). Courts must strike
              a balance between a defendant’s right to obtain health
              information relevant to a plaintiff’s claims and HIPAA’s “strong
              federal policy in favor of protecting the privacy of patient
              medical records[.]” Thomas [v. 1156729 Ontario Inc.], [No.

                                              -4-
              13–12283,] 2013 WL 5785853, at *2 [(E.D. Mich. Oct. 28,
              2013)].

Strayhorne, 2014 WL 916814, at *3. The Strayhorne Court, therefore, ruled that ex parte
interviews should not be allowed. Instead, the Court held that the same information could
be gleaned from formal discovery practices. Id.

       The Georgia Supreme Court likewise recognized the high risk to the patient/plaintiff
involved in ex parte interviews with treating physicians. See Baker v. Wellstar Health Sys.,
Inc., 288 Ga. 336, 703 S.E.2d 601 (Ga. 2010). As explained by the Georgia Supreme Court:

              In general, the dangers associated with ex parte interviews of
              health care providers are numerous, including (1) the potential
              for unwarranted probing into matters irrelevant to the litigation
              yet highly sensitive and possibly prejudicial to the
              patient-plaintiff; (2) the potential for disclosure of information,
              such as mental impressions not documented in the medical
              record, that the health care provider has never actually
              communicated to the patient-plaintiff; and (3) the potential for
              defense counsel to influence the health care provider’s
              testimony, unwittingly or otherwise, by encouraging solidarity
              with or arousing sympathy for a defendant health care provider.

Id. at 604. Despite these dangers, the Georgia Supreme Court ruled that ex parte interviews
were permitted, but that qualified protective orders must be narrowly drawn to protect the
patient’s rights. To that end, the Georgia Supreme Court directed trial courts to:

              [C]onsider whether the circumstances—including any evidence
              indicating that ex parte interviews have or are expected to stray
              beyond their proper bounds—warrant requiring defense counsel
              to provide the patient-plaintiff with prior notice of, and the
              opportunity to appear at, scheduled interviews or, alternatively,
              requiring the transcription of the interview by a court reporter at
              the patient-plaintiff’s request.

Id. at 605.

       Both Strayhorne and Baker considered the issue with regard to the Health Insurance
Portability and Accountability Act of 1996 (“HIPAA”), which neither expressly permits or
prohibits ex parte interviews of treating physicians. See Strayhorne, 2014 WL 916814, at *3

                                              -5-
(“HIPAA neither permits nor prohibits such ex parte communications.”); see also Baker, 703
S.E.2d at 603 (“We now review this matter on an interlocutory basis to determine whether
the protective order in this case comports with HIPAA . . . .”). In Tennessee, however, our
General Assembly has seen fit to enact a statute expressly allowing such ex parte interviews,
provided that the interview is limited to only relevant protected health information, as
required by HIPAA. See Tenn. Code Ann. § 29-26-121(f)(1) (imposing additional
restrictions). As our Supreme Court recognized in Alsip v. Johnson, the question of what is
relevant may be of much dispute between the parties and the ultimate arbiter of what
information is relevant is the trial court. See Alsip, 197 S.W.3d at 726–27. Despite this fact,
both counsel for the plaintiff and the trial court are prohibited from participating in the
interview due to its ex parte, informal nature. In this way, the statute appears to divest the
trial court of both its power to protect the rights of litigants to medical privacy and its power
to enforce its orders implementing the General Assembly’s mandate that the interview be
limited to only information relevant to the litigation.

        While in this case, there is no allegation of misconduct on the part of defense counsel,
I agree with the Georgia Supreme Court that this situation presents an opportunity for
mischief. See Baker, 703 S.E.2d at 604. By depriving the trial courts of their inherent
authority to regulate the conduct of parties and enforce their rulings, Tennessee Code
Annotated Section 29-26-121(f)(1) compounds the threat and leaves little hope of a remedy
when its own provisions are violated. Under these circumstances, while I discern no legal
basis to dissent from the majority’s holding, given the current state of the law, I write
separately to express my belief that this decision may constitute a step backward in patient
privacy jurisprudence.


                                                     _________________________________
                                                      J. STEVEN STAFFORD, JUDGE




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