                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                                        April 5, 2006 Session

                       FRANK H. McNIEL v. SUSAN R. COOPER

                     Appeal from the Chancery Court for Davidson County
                       No. 04-1748-IV Richard Dinkins, Chancellor



                    No. M2005-01206-COA-R3-CV - Filed on March 13, 2007



This appeal involves the authority of the Tennessee Board of Medical Examiners to review the
medical records of a physician’s patients. After the Board requested access to his patients’ records
in accordance with Tenn. Code Ann. § 63-1-117 (2004), the physician filed a declaratory judgment
action in the Chancery Court for Davidson County challenging the constitutionality of the statute.
The physician asserted that the statutory procedure for gaining access to medical records amounted
to an unreasonable search and seizure because it failed to provide him with pre-enforcement judicial
review of the reasonableness of the Board’s request. He also claimed that the statute’s notice
provisions violated due process. Both the physician and the Board filed motions for summary
judgment. The trial court determined that Tenn. Code Ann. § 63-1-117(a)(3), the portion of the
statute authorizing disciplinary sanctions against physicians who willfully fail to produce records,
was unconstitutional and awarded the physician $20,916 in attorney’s fees. The Board perfected this
appeal. We have determined that physicians in Tennessee have no reasonable expectation that they
can shield their patients’ records from the Board’s regulatory oversight and that the Board may
discipline physicians who willfully refuse to comply with lawful requests for patient records that
comply with Tenn. Code Ann. § 63-1-117.

     Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Reversed

WILLIAM C. KOCH , JR., P.J., M.S., delivered the opinion of the court, in which WILLIAM B. CAIN and
PATRICIA J. COTTRELL, JJ., joined.

Paul G. Summers, Attorney General and Reporter, and Sue A. Sheldon, Senior Counsel, for the
appellant, Susan R. Cooper, Commissioner of Health.1

Frank J. Scanlon, Nashville, Tennessee, for the appellee, Frank H. McNiel.




        1
         Commissioner Susan R. Cooper has been substituted as a party in the place of Commissioner Kenneth S.
Robinson in accordance with Tenn. R. App. P. 19(c).
                                                       OPINION

                                                         I.

        The Tennessee Board of Medical Examiners (Board) is responsible for licensing and
regulating all physicians in Tennessee.2 The Board receives administrative support from the Division
of Health Related Boards (Division) in the Tennessee Department of Health (Department).3 The
Division has concurrent jurisdiction with the Board to enforce compliance with the laws regulating
the practice of medicine in Tennessee,4 and the Division’s duties include investigating complaints
against physicians.5

        In 2003, the Tennessee General Assembly broadened the scope of the Division’s
investigatory power by authorizing the Division to obtain patient records from health care providers
simply by presenting a written request for the records.6 As amended, Tenn. Code Ann. § 63-1-117
required that the request be accompanied by a release signed by the patient or the patient’s
representative.7 The statute also authorized the Division to obtain patient records without a signed
release. In that circumstance, the statute required that the Division’s written request (1) specifically
identify the records sought by patient name,8 (2) be made in good faith pursuant to the Department’s
responsibility for oversight of the health care system,9 and (3) contain a signed certification by an
“independent reviewer” that the request is being made in good faith in response to a verified
complaint and after due consideration of whether obtaining an individual release is necessary or
feasible.10 Tenn. Code Ann. § 63-1-117(a)(3) also provided that willful failure to comply with a
lawful request for records was a ground for disciplinary action against a license holder.

        In March 2004, an investigator employed by the Division presented Dr. Frank McNiel with
written requests for records of thirty of his patients. Dr. McNiel is a family practitioner in Knoxville
who specializes in pain management. The investigator provided Dr. McNiel with copies of written
releases signed by four of his patients whose records were being sought. With regard to the


       2
            Tenn. Code Ann. § 63-6-101 (2004).

        3
            Tenn. Code Ann. § 63-6-101(b).

       4
            Tenn. Code Ann. § 63-1-122 (2004).

       5
            Tenn. Code Ann. § 63-1-115 (2004).

       6
            Act of June 4, 2003, ch. 281, 2003 Tenn. Pub. Acts 471, codified at Tenn. Code Ann. § 63-1-117 (2004).

       7
            Tenn. Code Ann. § 63-1-117(a)(1)(B).

       8
            Tenn. Code Ann. § 63-1-117(a)(1)(B)(i).

        9
            Tenn. Code Ann. § 63-1-117(a)(1)(B)(ii).

        10
             Tenn. Code Ann. § 63-1-117(a)(1)(B)(iii).

                                                         -2-
remaining twenty-six patients, the investigator provided Dr. McNiel with the identifying information
and independent certification required by Tenn. Code Ann. § 63-1-117(a)(1)(B). The investigator
also provided Dr. McNiel with a copy of Tenn. Code Ann. § 63-1-117 and a written warning that
failure to produce the requested records could result in “possible criminal, civil penalty, and/or
licensure disciplinary sanctions.”11

        Dr. McNiel declined to produce the patient records requested by the Division. On May 25,
2004, his lawyer sent a letter to the Division asserting that Tenn. Code Ann. § 63-1-117 was
unconstitutional.12 Dr. McNiel also provided the Division with the records of two of the four
patients who had signed releases. He declined to turn over the records of the other two patients –
a husband and wife – because he questioned the validity of the signatures on the release.

        On June 11, 2004, Dr. McNiel filed a complaint in the Chancery Court for Davidson County
seeking declaratory and injunctive relief.13 He asserted that Tenn. Code Ann. § 63-1-117 was
unconstitutional, and he requested that the Department be enjoined from requiring him to produce
the requested records. Dr. McNiel, characterizing the written request for records as an “investigative
subpoena,” argued that the statute was unconstitutional because (1) it did not require the Department
to inform the health care provider of the nature of its investigation and (2) it did not provide for pre-
enforcement judicial review of the reasonableness of the request for patient records.

        Three days later, on June 14, 2004, the Division responded to the May 25, 2004 letter from
Dr. McNiel’s lawyer. The Division demanded that Dr. McNiel produce the requested records by
June 30, 2004 and warned him that the matter would be turned over to the Office of General Counsel
for disciplinary proceedings if he failed to comply. This letter prompted Dr. McNiel to file an
amended complaint on June 24, 2004, as well as a motion to enjoin the Department from instituting
disciplinary proceedings against him under Tenn. Code Ann. § 63-1-117(a)(3). The record contains
no indication that the trial court enjoined the Department from commencing a disciplinary
proceeding against Dr. McNiel for refusing to turn over patients’ records in accordance with an
otherwise valid written request.




         11
            Tenn. Code Ann. § 63-1-117 does not authorize criminal penalties. The Division has conceded as much, but
it has never explained why Dr. McNiel was threatened with criminal penalties. The United States Supreme Court and
the Tennessee Supreme Court have stated explicitly that “civil investigative authority will not permit the government to
expand its criminal discovery powers.” State Dept. of Revenue v. Moore, 722 S.W .2d 367, 373 (Tenn. 1986).

         12
            Meanwhile, Tenn. Code Ann. § 63-1-117 had been revised again. Act of April 15, 2004, ch. 575, 2004 Tenn.
Pub. Acts 1380. These revisions have no effect on the matters in this case, and our citations will continue to reference
the statute as it existed when Dr. McNiel was originally served with the Division’s request for records.

         13
            Although the Uniform Administrative Procedures Act, Tenn. Code Ann. § 4-5-101 through -325 (2005)
applies to proceedings against licensed professionals, it is not necessary to exhaust administrative remedies before
petitioning the courts regarding the constitutional validity of a rule or statute. Metro. Gov’t v. State Bd. of Equalization,
No. 88-25-II, 1988 W L 69519, at *4 (Tenn. Ct. App. July 8, 1988) (No Tenn. R. App. P. 11 application filed).



                                                            -3-
        Both Dr. McNiel and the Department filed motions for summary judgment on August 18,
2004. Unfortunately, the Department failed to state the grounds for relief in its motion.14 Based on
the exhibits accompanying the Department’s motion, we deduce that the Department was arguing
(1) that the Uniform Administrative Procedures Act provided Dr. McNiel with appropriate
opportunities for judicial review before imposition of the sanctions authorized by Tenn. Code Ann.
§ 63-1-117(a)(3) and (2) that the procedure for obtaining patient records for regulatory purposes
complied with the Health Insurance Portability and Accountability Act of 1996 (HIPAA). Dr.
McNiel’s motion, while terse, states that Tenn. Code Ann. § 63-1-117 is unconstitutional on its face
because it violates his right to be protected from unreasonable searches and seizures under both the
federal and state constitutions.

         The trial court filed a memorandum and order on December 20, 2004. The court determined
that Dr. McNiel had received adequate notice regarding the existence of a verified complaint against
him and the records being sought. However, the court also determined that Tenn. Code Ann. § 63-1-
117(a)(3) unconstitutionally coerced physicians into complying with requests for records by forcing
them to run the risk of discipline if they refused to turn over the requested records. The court stated
that this “coercion” was “contrary to the constitutional principles. . . that a judicial determination of
reasonableness of the demand be made prior to the enforcement and that there be no sanction for
seeking such determination.”

       Accordingly, the trial court struck down Tenn. Code Ann. § 63-1-117(a)(3) that empowered
the Department to commence disciplinary proceeds or to seek civil penalties against health care
providers who willfully disregard a lawful request to produce medical records. The court also
ordered the Department to place the following notice on any future Tenn. Code Ann. § 63-1-117
demands:

                  NOTE: Tennessee law does not currently allow the Health Related
                  Boards to take disciplinary action and/or assess civil penalties against
                  a licensed health care provider who willfully disregards a lawful
                  Authorization for Release of Records issued by the Department of
                  Health.

The trial court also awarded Dr. McNiel $20,916 in attorney’s fees. The Department perfected this
appeal.15 In accordance with Tenn. R. App. P. 13(a), Dr. McNiel takes issue with the trial court’s

         14
           Tenn. R. Civ. P. 7.02(1) requires motions to “state with particularity the grounds therefor.” In this case as in
other cases, the Attorney General and Reporter has ignored the rule and has instead set out the basis for its motion in a
separate memorandum of law which is not part of the record on appeal. Both the Tennessee Supreme Court and this
court have admonished the Attorney General about this practice – apparently with little effect. See, e.g., Willis v. Tenn.
Dep’t of Corr., 113 S.W .3d 706, 709 n.2 (Tenn. 2003); Utley v. Tenn. Dep’t of Corr., 118 S.W .3d 705, 711 n.8 (Tenn.
Ct. App. 2003); Hickman v. Tenn. Bd. of Paroles, 78 S.W .3d 285, 287 (Tenn. Ct. App. 2001); Pendleton v. Mills, 73
S.W .3d 115, 119 n. 7 (Tenn. Ct. App. 2001); Robinson v. Clement, 65 S.W .3d 632, 635 n. 2 (Tenn. Ct. App. 2001).

         15
          In addition to seeking appellate review of the trial court’s decision, the Department requested that the
Tennessee General Assembly revise Tenn. Code Ann. § 63-1-117(a) to address the trial court’s opinion. The General
                                                                                                     (continued...)

                                                           -4-
conclusion that the Division provided him with adequate notice of the purpose of its request for
access to his patients’ records.

                                                        II.
                                        THE STANDARD OF REVIEW

        There are no material factual disputes with regard to the issues raised on this appeal. These
issues involve the interpretation of statutes and the construction and application of constitutional
provisions. These sorts of issues present questions of law. Tidwell v. City of Memphis, 193 S.W.3d
555, 559 (Tenn. 2006) (the interpretation of a statute is a question of law); Bredesen v. Tenn. Judicial
Selection Comm’n, ___ S.W.3d ___, ___, 2007 WL 519270, at *4 (Tenn. 2007) (the construction
of a statute or a constitutional provision is a question of law). A trial court’s decisions on legal
questions are not entitled to a presumption of correctness on appeal. Stewart v. Sewell, ___ S.W.3d
___, ___, 2007 WL 609001, at *5 (Tenn. 2007); State v. Burns, 205 S.W.3d 412, 414 (Tenn. 2006).
Accordingly, this court must review the questions de novo, and we must reach our own conclusions
independent of the decisions reached by the trial court.

                                         III.
        THE LICENSING AGENCY ’S RIGHT OF ACCESS TO PATIENTS ’ MEDICAL RECORDS

        We examine first the right of the Board and Division to gain access to a patient’s medical
records in the context of an investigation of alleged wrong-doing by the patient’s physician. This
issue requires balancing (1) patients’ expectations that their medical records will not be divulged
without their consent, (2) physicians’ interests in practicing their profession free from unreasonable
governmental interference, and (3) the State’s compelling interest in protecting its citizens by
regulating the practice of medicine.

        We begin with the most important of the competing interests. A patient’s expectation that
his or her medical records will remain private has constitutional, statutory, and decisional protection
in Tennessee. Patients have a constitutionally protected interest in avoiding the disclosure of private,
personal information, Whalen v. Roe, 429 U.S. 589, 599-600, 97 S. Ct. 869, 876 (1977), and their
medical records fall within the sphere of constitutionally protected private information. In re Search
Warrant (Sealed), 810 F.2d 67, 71 (3d Cir. 1987); Dr. K. v. State Bd. of Physician Quality
Assurance, 632 A.2d 453, 459 (Md. Ct. Spec. App. 1993). The Tennessee General Assembly,
recognizing the sensitivity of medical records, has enacted statutes limiting their disclosure. See,
e.g., Tenn. Code Ann. § 63-2-101(b)(1) (Supp. 2006); Tenn. Code Ann. §§ 68-11-1502, -1503
(2006). While Tennessee has never recognized a common-law physician–patient privilege, the
Tennessee Supreme Court has recognized the existence of an implied covenant of confidentiality



        15
           (...continued)
Assembly amended Tenn. Code Ann. § 63-1-117(a) in 2005. Act of April 18, 2005, ch. 118, 2005 Tenn. Pub. Acts 200.
These amendments have no direct bearing on this case and do not render this appeal moot because of the trial court’s
award of attorney’s fees.

                                                        -5-
between physicians and their patients. Givens v. Mulliken ex rel. McElwaney, 75 S.W.3d 383, 407
(Tenn. 2002).

       A patient’s privacy interest is not absolute. The United States Supreme Court has held that
the disclosure of patient prescription records as part of a state government’s oversight of the
dispensing and sale of controlled substances was not an unwarranted disclosure of private
information. Whalen v. Roe, 429 U.S. at 600-04, 97 S. Ct. at 877-79. Similarly, the Tennessee
Supreme Court has held that the implied covenant of confidentiality is not enforceable if it
contravenes public policy and that the covenant can be voided when its enforcement would
compromise the needs of society. Alsip v. Johnson City Med. Ctr., 197 S.W.3d 722, 726 (Tenn.
2006).

        A physician also has a constitutionally protected liberty and property interest in practicing
his or her profession free from unreasonable interference by the government. See Greene v.
McElroy, 360 U.S. 474, 492, 79 S. Ct. 1400, 1411 (1959); Schware v. Bd. of Bar Exam’rs, 353 U.S.
232, 238-39, 77 S.Ct. 752, 756 (1957); Humenansky v. Minn. Bd. of Med. Exam’rs, 525 N.W.2d 559,
566 (Minn. Ct. App. 1994). This right, however, is not unqualified, People ex rel. Sherman v. Cyrns,
786 N.E.2d 139, 160 (Ill. 2003); State Med. Bd. v. Miller, 541 N.E.2d 602, 605 (Ohio 1989), and it
has been characterized as a personal privilege that is subject to reasonable restriction and regulation
by the state licensing authorities. Sloan v. Metro. Health Council of Indianapolis, Inc., 516 N.E.2d
1104, 1107 (Ind. Ct. App. 1987); Lap v. Axelrod, 467 N.Y.S.2d 920, 922 (App. Div. 1983); State
Med. Bd. v. Miller, 541 N.E.2d at 605-06; Gandhi v. State Med. Examining Bd., 483 N.W.2d 295,
300 (Wis. Ct. App. 1992).

        For their part, the states have a compelling interest in exercising their police power to protect
the public health and safety and other interests by establishing standards for licensing professionals
and by regulating the practice of professions within their borders. Goldfarb v. Va. State Bar, 421
U.S. 773, 792, 95 S. Ct. 2004, 2016 (1975); see also Davis v. Allen, 43 Tenn. App. 278, 283, 307
S.W.2d 800, 802-03 (1957).16 Thus, the courts have, without fail, acknowledged that states have the
power to license physicians practicing within their borders and to take all appropriate steps to ensure
that practicing physicians meet professional standards. Patients of Dr. Barbara Solomon v. Bd. of
Physician Quality Assurance, 85 F. Supp. 2d 545, 548 (D. Md. 1999); Miller v. Sloan, Listrom,
Eisenbarth, Sloan & Glassman, 978 P.2d 922, 927 (Kan. 1999); Atkins v. Guest, 607 N.Y.S.2d 655,
657 (App. Div. 1994); Gandhi v. State Med. Examining Bd., 483 N.W.2d at 300.

         Empowering state licensing boards to investigate complaints against licensed professionals
is an integral part of the oversight of professional practice. State boards charged with regulating and
disciplining licensed professionals should not be barred from conducting thorough investigations into
allegations of unprofessional conduct. Jane Doe v. Md. Bd. of Social Work Exam’rs, 862 A.2d 996,
1007-08 (Md. 2004). Thus, any limitations on a licensing board’s statutory power to conduct
investigations and to obtain information from its licensees must emanate from the requirements and


        16
          See also People ex rel. Sherman v. Cryns, 786 N.E.2d at 160; Humenansky v. Minn. Bd. of Med. Exam’rs,
525 N.W .2d at 566-67.

                                                     -6-
standards established to protect constitutional, statutory, or common-law rights and privileges. State
ex rel. Hoover v. Berger, 483 S.E.2d 12, 17 (W. Va. 1996).

         A thorough examination of a complaint against a physician may, and invariably does, require
the licensing board to examine the medical records of the physician’s patients. Many times, it is
neither prudent nor possible to obtain the patient’s consent prior to the examination. In these
circumstances, the patient’s privacy interests must be balanced with the public’s interest in
investigating the conduct of licensed physicians. McMaster v. Iowa Bd. of Psychology Exam’rs, 509
N.W.2d 754, 759 (Iowa 1993); Atkins v. Guest, 607 N.Y.S.2d at 657; Solomon v. State Bd. of
Physician Quality Assurance, 845 A.2d 47, 57 (Md. Ct. Spec. App. 2003); State v. Antill, 197 N.E.2d
548, 551 (Ohio 1964). This delicate task is accomplished by considering, among other things, (1)
the government’s reason for seeking access to the records, (2) the basis for the government’s
authority to examine the records, (3) the government’s need for the information, (4) the type of
records being requested, (5) the information the records contain, (6) the potential harm to the patient
if the information is released without the patient’s consent, and (7) the adequacy of the safeguards
to prevent unauthorized release of the information in the records. United States v. Westinghouse
Elec. Corp., 638 F.2d 570, 598 (3d Cir. 1980); Dr. K. v. State Bd. of Physician Quality Assurance,
632 A.2d at 459; see also Bd. of Med. Exam’rs v. Duhon, 867 P.2d 20, 24-25 (Colo. Ct. App. 1993)
superseded by statute, Colo Rev. Stat. 12-36-118(4)(a) (West, Westlaw through 2006 1st Sess. of
65th Gen. Assembly), as recognized in State Bd. of Med. Exam’rs v. Khan, 984 P.2d 670, 673-74
(Colo. 1999); Feathers v. W. Va. Bd. of Med., 562 S.E.2d 488, 493 (W. Va. 2001).

        The scope of a licensing agency’s request for records must be appropriately limited to prevent
the release of unnecessary information. See Bearman v. Superior Court, 11 Cal. Rptr. 3d 644, 648
(Ct. App. 2004). This can be accomplished by a minimal showing that the complaint received by
the licensing agency reasonably justifies the request, Levin v. Murawski, 449 N.E.2d 730, 733-34
(N.Y. 1983), and that the requested records are necessary as evidence in the investigation of the
complaint.

        Maintaining the confidentiality of patient records is for the protection of the patient, not the
physician. Nach v. Dep’t of Prof’l Regulation, 528 So. 2d 908, 909 (Fla. Dist. Ct. App. 1988).
Accordingly, most of the jurisdictions that have addressed the question have concluded that
healthcare providers should not be permitted to frustrate a legitimate investigation into their
professional conduct by asserting the physician–patient privilege. Colorado Bd. of Psychologist
Exam’rs v. Dr. I.W., 140 P.3d 186, 188 (Colo. Ct. App. 2006); Solomon v. State Bd. of Physician
Quality Assurance, 845 A.2d at 548 ; In re Application to Quash a Subpoena Duces Tecum in Grand
Jury, 437 N.E.2d 1118, 1120 (N.Y. 1982); Atkins v. Guest, 607 N.Y.S.2d at 657; State Med. Bd. v.
Miller, 541 N.E.2d at 606; Biddle v. Warren Gen. Hosp., 715 N.E.2d 518, 524 (Ohio 1999); In re
Bd. of Med. Review Investigation, 463 A.2d 1373, 1376 (R.I. 1983).17 These courts have concluded


         17
            Many of the courts reaching this conclusion have pointed to statutes protecting the confidentiality of patient
records in the hand of the licensing authority. Doe v. Dep’t of Health, ___ So. 2d ___, ___, 2006 W L 3780681, at *1
(Fla. Dist. Ct. App. Dec. 27, 2006); Nach v. Dep’t of Prof’l Regulation, 528 So. 2d at 909; Jane Doe v. Md. Bd. of Social
Work Exam’rs, 862 A.2d at 1008; State Med. Bd. v. Miller, 541 N.E.2d at 606.

                                                           -7-
that permitting licensing boards to obtain medical records does not violate the patient’s privacy
rights,18 generally accepted professional standards,19 HIPAA,20 ERISA,21 or the Fifth Amendment.22

         The Division and the Board have concurrent authority to enforce compliance with the laws
regulating the practice of the medicine in Tennessee in order to prevent unlawful practices within
this state.23 Included within this power is the authority to conduct investigations into complaints
filed against physicians24 and to discipline physicians when appropriate.25 To assure that good cause
for an investigation exists, the Division and the Board may commence an investigation only upon
the receipt of a complaint signed by a licensed member of the profession26 or a complaint that has
been reviewed and found warranting investigation either by a screening panel of physicians27 or by
an independent reviewer who must also be a licensed physician.28 When determining whether a
complaint warrants further investigation, the independent reviewer must (1) consider the nature of
the complaint and (2) balance the potential harm to the physician’s practice with the interests of the
public.29 Any information, including patient records, obtained during an investigation remains
confidential until it is introduced in the disciplinary proceeding against the physician.30

        We conclude that the Division and the Board have statutory authority to license and oversee
the professional conduct of physicians practicing in Tennessee. An integral part of this authority is


         18
           In re Search Warrant (Sealed), 810 F.2d 67, 72-73 (3d Cir. 1987); Schachter v. Whalen, 581 F.2d 35, 37 (2d
Cir. 1978); Patients of Dr. Barbara Solomon v. Bd. of Physician Quality Assurance, 85 F. Supp. 2d at 548.

         19
           Colorado Bd. of Psychologist Exam’rs v. Dr. I.W., 140 P.3d at 188. In fact, physicians have an ethical
obligation to disclose patient medical records in response to a lawful request for them. Am. Med. Ass’n Council on
Ethical and Judicial Affairs, Code of Medical Ethics § 7.02, at 114 (1998-99 ed.).

        20
          Solomon v. State Bd. of Physician Quality Assurance, 845 A.2d at 57; Chapman v. Health & Hosps. Corps.,
796 N.Y.S.2d 876, 936-37 (N.Y. Sup. Ct. 2005).

         21
              State Bd. of Registration for Healing Arts v. Fallon, 41 S.W .3d 474, 478 (Mo. 2001).

         22
              Nach v. Dep’t of Prof’l Regulation, 528 So. 2d at 909.

         23
              Tenn. Code Ann. § 63-1-122 (2004).

         24
              Tenn. Code Ann. § 63-6-213 (2004).

         25
              Tenn. Code Ann. §§ 63-1-120(a), 63-6-214(a) (2004)

         26
              Tenn. Code Ann. § 63-1-117(a)(1)(B)(iii)(b).

        27
              Tenn. Code Ann. §§ 63-1-138, 63-6-214(i) (Supp. 2005).

         28
              Tenn. Code Ann. § 63-1-117(a)(1)(B)(iii)(a).

         29
              Tenn. Code Ann. § 63-1-117(a)(1)(B)(iii)(c).

         30
              Tenn. Code Ann. § 63-1-117(b)(2); Tenn. Code Ann. § 63-6-214(h) (Supp. 2005).

                                                             -8-
the power to investigate complaints against physicians once it is determined that the complaint
merits further inquiry. When either the Board or the Division determines that an investigation is
warranted, they have the authority to direct the physician to release patient records containing
information relevant to the complaint. Once the Board or the Division obtains the records, they must
take steps to assure that the records remain confidential until they are used in a disciplinary
proceeding against the physician.

        These statutory procedures, when followed, protect the patient’s reasonable expectation that
his or her medical records will not be released improperly. They assure that the Board and the
Division will receive only those records that are necessarily related to the complaint and that these
records will remain confidential until they are introduced at a disciplinary proceeding against the
physician. Physicians who comply with the Division’s or Board’s request for patient records do not
violate the implied covenant of confidentiality because they are required to honor a proper request
for patient records.31 Therefore, requiring a physician to comply with either the Division’s or the
Board’s request for patient records does not violate any of the patient’s privacy interests.

                                                IV.
                         THE VALIDITY OF TENN . CODE ANN . § 63-1-117(a)(3)

        The Board and the Division also take issue with the trial court’s conclusion that Tenn. Code
Ann. § 63-1-117(a)(3) was unconstitutionally coercive. They concede that due process requires
providing licensees like Dr. McNiel an opportunity to seek judicial review of an administrative
request for information before they can be disciplined for refusing to comply with the request.
However, they insist that Tennessee’s Uniform Administrative Procedures Act provides licensees
like Dr. McNiel with an appropriate opportunity for judicial review. We agree.

        Tennessee’s appellate courts have not heretofore been called upon the construe and apply
Tenn. Code Ann. § 63-1-117. However, approximately twenty-five years ago, the Tennessee
Supreme Court examined a similar statute that was challenged on several constitutional grounds.
State ex rel. Shriver v. Leech, 612 S.W.2d 454 (Tenn. 1981). The court’s reasoning in that case
provides direction for our consideration of the challenge to Tenn. Code Ann. § 63-1-117(a)(3).

        Tenn. Code Ann. § 8-6-402(a) (2002) empowers the Attorney General and Reporter to issue
civil investigative demands (CID) compelling persons to give testimony or to produce documents
in any proceeding in which the state is a party litigant and may become a party litigant. Persons
failing to comply with a CID are subject to contempt sanctions,32 and the information obtained
through a CID remains confidential until used in court.33



       31
            Givens v. Mullikin ex rel. McElwaney, 75 S.W .3d at 408.

       32
            Tenn. Code Ann. §§ 8-6-404, -405 (2002).

       33
            Tenn. Code Ann. § 8-6-407 (2002).

                                                        -9-
        In State ex rel. Shriver v. Leech, a recipient of a CID challenged the constitutionality of Tenn.
Code Ann. § 8-6-402(a) on the grounds that it violated the Due Process and Equal Protection Clauses
of both the state and federal constitutions. He argued that the CID gave the State an unfair advantage
with regard to discovery and that it did not require the Attorney General to first obtain judicial
approval for the CID’s issuance. The Tennessee Supreme Court held that using a CID did not give
the State an unfair advantage. State ex rel. Shriver v. Leech, 612 S.W.2d at 457-58. The Court,
noting that the Attorney General was required to request the court to impose sanctions for failure to
comply with a CID, also held that the CID procedure provided a sufficient opportunity to obtain
judicial review of the issuance of the CID. The Court noted that

                        If the subpoenaed party is of the opinion the requests
                contained in the demand are unreasonable, he can refuse to comply
                with the demand and raise the issue as a defense to any action brought
                by the attorney general and reporter to enforce compliance.

State ex rel. Shriver v. Leech, 612 S.W.2d at 459.

        In this case, Dr. McNiel and the trial court have apparently decided that the only sort of
administrative fact-gathering procedures that will pass constitutional muster are those that resemble
the CID process approved by the Tennessee Supreme Court in State ex. rel. Shriver v. Leech. We
have determined that both Dr. McNiel and the trial court have read too much into State ex. rel.
Shriver v. Leech. As we construe the decision, any regulatory fact-gathering process that requires
licensees to provide records to a licensing board will be upheld as long as the licensee from whom
the records are requested has an opportunity to obtain judicial review of the reasonableness of the
request before the imposition of sanctions for failing to comply with the request.

        Requests for records under Tenn. Code Ann. § 63-1-117 are not self-enforcing. If a physician
who receives a request declines to comply, the only avenue available to the agency seeking the
records is to begin the administrative process to discipline the physician for failing to comply with
the request. If the physician is charged with engaging in unprofessional conduct by failing to
respond to a lawful request for records, he or she may request a contested case hearing. To prevail
at this hearing, the Division must present substantial and material evidence establishing that the
request for records was “lawful” and that the recipient’s refusal to provide the requested records was
“willful.” Tenn. Code Ann. § 63-1-117(a)(3)(B). For a request to be “lawful,” it must comply not
only with all the requirements of Tenn. Code Ann. § 63-1-117 but also with all other applicable
constitutional and legal requirements.

       The contested case proceeding affords the physician with an opportunity for discovery. The
contested case hearing also affords the physician with an opportunity to present evidence and cross-
examine the Division’s witnesses regarding the legality of the request for information. Following
the hearing, the administrative law judge and the Board will determine, based on the evidence,
whether the physician willfully disregarded a lawful request for information and, if so, what the
physician’s punishment should be. If the administrative law judge and the Board find against the
physician, the physician may obtain judicial review by filing a petition for review in accordance with


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Tenn. Code Ann. § 4-5-322 (2005). Only after the reviewing court or courts uphold the decision of
the Board can the physician be punished and compelled to turn over the requested records.

        The judicial review of the Board’s decision following a contested case proceeding serves
essentially the same purpose as the judicial review procedure approved in State ex rel. Shriver v.
Leech. The Division must commence a formal administrative proceeding to enforce its request for
records, and the physician is not required to comply with the request until both the Board and the
courts determine that the request was lawful. The Division has the burden of proof, and the
physician may raise the unlawfulness of the request as a defense. Judicial review of an
administrative decision upholding the request provides the same sort of judicial review that Tenn.
Code Ann. § 8-6-404 provides for CIDs issued by the Attorney General and Reporter. Accordingly,
State ex rel. Shriver v. Leech provides no support for the trial court’s conclusion that Tenn. Code
Ann. § 63-1-117(a)(3) is unconstitutional.

         In addition, a contested case proceeding initiated by the Board is not the only avenue
available for judicial review of the lawfulness of a request for records under Tenn. Code Ann. § 63-
1-117. Like the recipient of the CID in State ex rel. Shriver v. Leech, a physician who receives a
request for records may file a petition in the nature of quo warranto or a declaratory judgment under
Tenn. Code Ann. § 29-14-103 (2000). See State ex rel. Shriver v. Leech, 612 S.W.2d at 455. The
physician may also petition either the Division or the Board for a declaratory order regarding the
lawfulness of the request for records.34 In response to that petition, the Division or the Board must
convene a contested case hearing or refuse to issue the declaratory order. If the Division or the
Board convenes a contested case hearing, its decision is judicially reviewable under Tenn. Code Ann.
§ 4-5-322. If the Division or the Board decline to issue a declaratory order, the physician may file
a petition for declaratory judgment in the Chancery Court for Davidson County in accordance with
Tenn. Code Ann. § 4-5-225 (2005).

        While the trial court found that Tenn. Code Ann. § 63-1-117(a)(3) was inappropriately
coercive, we find no constitutional infirmity in a statute that permits a licensing board to discipline
a licensee who willfully refuses to comply with a lawful request for records. Many other states have
statutes similar to Tenn. Code Ann. § 63-1-117(a)(3).35 Without these disciplinary sanctions, a
licensing board’s investigation could easily be thwarted by the licensee. Anderson v. Bd. of Med.
Exam’rs, 770 P.2d 947, 950 (Or. Ct. App. 1989); Dr. K. v. State Bd. of Physician Quality Assurance,
632 A.2d at 461-62. Licensees who choose not to comply with a licensing board’s lawful
investigation should suffer the consequences of their unsuccessful challenges to appropriate requests
for information. Abbott v. Kan. Bd. of Exam’rs in Optometry, 1 P.3d 318, 323 (Kan. 2000). Thus,


         34
            Tenn. Code Ann. § 4-5-223(a) provides that “[a]ny affected person may petition an agency for a declaratory
order as to the validity or applicability of a statute, rule or order with the primary jurisdiction of the agency.”

         35
          See, e.g., Ala. Code 34-24-361(c), (d) (2006 Supp.); Ga. Code Ann. §§ 43-1-19(a)(8), 43-34-37(a)(10)
(2005); Ga. Comp. R. & Regs. 360-3-02(11) (2007); Kan. Stat. Ann. § 65-1517(l)(p) (2002); La. Rev. Stat. Ann. §
37:776(A)(27) (2007 Supp.); Md. Code Ann., Health Occ. § 14-404(a)(33) (2005); N.Y. Educ Law § 6530(15)
(McKinney 2001); Ohio Rev. Code Ann. § 4731.22(B)(34) (W est 2006 Supp.); Or. Rev. Stat. Ann. § 677.190(23)
(2005).

                                                        -11-
the courts have consistently upheld disciplinary actions taken against licensees who have willfully
failed to cooperate with a licensing agency’s request for information. Abbott v. Kan. Bd. of Exam’rs
in Optometry, 1 P.3d at 323; Parrish v. Ky. Bd. of Med. Licensure, 145 S.W.3d 401, 410 (Ky. Ct.
App. 2004); In re Shiplov, 945 So. 2d 52, 62 (La. Ct. App. 2006); Solomon v. State Bd. of Physician
Quality Assurance, 845 A.2d at 58-60; In re Ostad, 766 N.Y.S.2d 441, 444 (App. Div. 2003);
Anderson v. Bd. of Med. Exam’rs, 770 P.2d at 950.

        The Board and the Division share the responsibility to oversee the practice of medicine in
Tennessee to protect the health and safety of Tennessee’s residents. Neither the Board nor the
Division will be able to carry out this responsibility if their investigations into complaints filed
against physicians can be frustrated either by physicians or by patients who have been influenced by
their physician. The procedure available to the Board and the Division to obtain medical records
contains sufficient safeguards to assure that the Board or the Division has good cause to examine the
records and that the records being sought are necessary to enable the Board or Division to investigate
the complaint. Therefore, we have concluded that the procedure mandated by the Tennessee General
Assembly for obtaining patient records appropriately balances the patients’ privacy interests, the
physicians’ interest in practicing medicine free from unreasonable governmental interference, and
the State’s compelling interest in protecting the health and safety of its citizens.

                                                 V.

        We reverse the judgment of trial court in all respects and remand the case to the trial court
with directions to dismiss Dr. McNiel’s complaint for declaratory judgment. We tax the costs of this
appeal to Frank H. McNiel for which execution, if necessary, may issue.



                                                       ______________________________
                                                       WILLIAM C. KOCH, JR., P.J., M.S.




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