Alsip v. Johnson City Medical Center
| Decision Date | 29 June 2006 |
| Docket Number | No. E2004-00831-SC-S09-CV.,E2004-00831-SC-S09-CV. |
| Citation | 197 S.W.3d 722 |
| Parties | Jennifer Lynn ALSIP et al. v. JOHNSON CITY MEDICAL CENTER et al. |
| Court | Tennessee Supreme Court |
Gary E. Brewer and Leslie A. Muse, Morristown, Tennessee, for the appellants, Jennifer Lynn Alsip, Rebecca Dawn Alsip, and Geraldine Alsip.
Jeffrey M. Ward, Greeneville, Tennessee, for the appellees, Louis Modica, M.D., and Medical Education Assistance Corporation d/b/a ETSU Physicians and Associates.
Randall J. Phillips, Jackson, Tennessee, for Amicus Curiae, Tennessee Trial Lawyers Association.
Melanie M. Stewart, C. Michael Becker, Germantown, Tennessee, and James M. Beck, Philadelphia, Pennsylvania, for Amicus Curiae, Tennessee Defense Lawyers Association.
William B. Hubbard, Nashville, Tennessee, for Amicus Curiae, Tennessee Hospital Association.
David L. Steed and Jay N. Chamness, Nashville, Tennessee, for Amicus Curiae, Tennessee Medical Association.
WILLIAM M. BARKER, C.J., delivered the opinion of the court, in which E. RILEY ANDERSON, ADOLPHO A. BIRCH, JR., JANICE M. HOLDER, and CORNELIA A. CLARK, JJ. joined.
Pursuant to Rule 11 of the Tennessee Rules of Appellate Procedure, we accepted this appeal to clarify the meaning of our holding in Givens v. Mullikin, 75 S.W.3d 383 (Tenn.2002), as it relates to a trial court's tailored discovery order in a medical malpractice lawsuit permitting ex parte communications between defense counsel and the decedent's non-party treating physicians. Carefully weighing public policy concerns and considering the case law on this issue from other jurisdictions, we hold that the trial court erred by issuing this order. Today we announce that such ex parte communications violate the implied covenant of confidentiality that exists between physicians and patients and that public policy does not require the voidance of this covenant. This being the case, ex parte communications between the plaintiff's non-party physicians and defense attorneys are not allowed in the State of Tennessee. Accordingly, we affirm the judgment of the Court of Appeals and remand the case to the trial court for further proceedings consistent with this opinion.
On August 27, 2000, Walter Alsip presented himself to the emergency room of Johnson City Medical Center after a four-day history of sore throat, ear ache, fever, and chills. Upon examination by a staff physician, Dr. Mark Wilkinson, Alsip was treated and released.
Alsip returned to the emergency room the next day with worsening symptoms. Dr. Wilkinson ordered a CT scan, which revealed that Alsip had a peritonsillar abscess. Dr. Wilkinson then referred Alsip to a specialist, Dr. Louis Modica.
Dr. Modica performed an aspiration, whereby a needle was placed into the tissue of the abscess. Ten minutes after the aspiration, a nurse informed Dr. Modica that Alsip was bleeding heavily from the aspiration site. Upon examination, Dr. Modica determined that while performing the aspiration he had inadvertently punctured an artery. Dr. Modica immediately consulted an anesthesiologist and ordered an operating room, but one was not available. In the interim, Dr. Modica applied pressure in an attempt to control the bleeding. Although Dr. Modica characterized Alsip's condition as an emergency, the wait for an operating room lasted more than two hours. During this time, Alsip suffered significant blood lost and went into hypovolemic shock. Surgery eventually was performed to repair Alsip's lacerated artery.
The critical care team of Johnson City Medical Center was charged with caring for Alsip after his surgery. Despite the best efforts of these doctors — defendant Modica numbers them at nine — Alsip's condition deteriorated. It was learned that Alsip suffered from numerous pre-existing health problems, including sepsis and disseminated intravascular coagulation; after surgery, Alsip developed adult respiratory distress syndrome, renal failure, and pneumonia. He died at Johnson City Medical Center in November 2000.
Alsip's surviving children and mother filed this medical malpractice action in August 2001 against Dr. Modica and other defendants. One month later, Dr. Modica filed an answer denying allegations of medical malpractice, and in December 2001, an agreed order was issued to allow Dr. Modica access to "any and all medical records and radiographic films of [the decedent]." After the plaintiffs' deposition of Dr. Modica and the defendants' deposition of the plaintiffs' expert, Dr. Randall Dalton, the plaintiffs submitted written interrogatories to Dr. Modica, asking for, among other things, identification of the defendants' expert witnesses. After receiving these interrogatories, Dr. Modica filed the matter that concerns us here: a motion to allow ex parte interviews with the decedent's post-surgery, non-party physicians.
Although expressly holding that the decedent enjoyed a right to privacy and that a covenant of confidentiality existed between Alsip and his doctor (and that neither was waived by filing this lawsuit), the trial judge granted Dr. Modica's motion allowing ex parte communications with Alsip's other physicians, but only on the following terms:
The defense motion will be granted to the extent that the requested doctors were in active communication with the defendant during Mr. Alsip's care and treatment, in accord with the criteria established and discussed in the Kilian case.
The sole legal authority for this order appears to have been Kilian v. Med. Educ. Assistance Corp., No. 22477 (Washington County Law Court May 19, 2003), a decision of the same trial court less than five months before the issuance of the order allowing ex parte communications in this case. In Kilian, the trial court authorized but also established the following restrictions on such communications:
1. Defendant's counsel in a medical malpractice case may have ex parte conversations with plaintiff's treating physician without express authorization by the plaintiff ONLY under the following conditions:
a) The court in which the action is pending must authorize the contact pursuant to a motion filed by defendant with notice to plaintiff;
b) The information sought must relate only to A) the diagnosis and treatment of the condition for which the plaintiff originally sought treatment and B) any time-relevant treatment for any injury claimed to have arisen from the alleged malpractice where the defendant physician was still involved in treatment of the plaintiff;
c) No defendant physician shall be present during the contact; and
d) Counsel shall not engage in inappropriate discussion of matters such as malpractice cases in general, their impact on professional insurance, jury awards, professional reputations or the like. The discussion shall be limited as specified in paragraph no. 21 above and the physician's opinion in connection therewith.2
The trial court granted the plaintiffs' motion for interlocutory appeal and stayed the order pending appellate review. The Tennessee Court of Appeals ruled in favor of the plaintiffs and struck down the trial court's order.
The sole issue in this case is whether the trial court erred by granting the defendant's motion and issuing an order authorizing ex parte communications between defense counsel and the decedent's non-party physicians. On this issue, we agree with the predominant trend among the states, and with our own appeals court, that it did.
Because this case concerns a question of law, "we review [it] under a pure de novo standard ..., according no deference to the conclusions of law made by the lower courts." S. Constructors, Inc. v. Loudon County Bd. of Educ., 58 S.W.3d 706, 710 (Tenn.2001).
Although no testimonial privilege protecting doctor-patient communications has ever been recognized by this Court or declared by Tennessee statute, in Givens v. Mullikin, 75 S.W.3d 383 (Tenn.2002), we recognized an implied covenant of confidentiality in medical-care contracts between treating physicians and their patients. This covenant forbids doctors from "releas[ing] without the patient's permission... any confidential information gained through the [physician-patient] relationship." Givens, 75 S.W.3d at 407. We explained in Givens that the covenant of confidentiality arises not only from the implied understanding of the agreement between patient and doctor, but also from a policy concern that such private and potentially embarrassing information should be protected from public view. Id. (). Indeed, "[t]he relationship of patient to physician is a particularly intimate one [because] [t]o the physician we bare our bodies ... in confidence that what is seen and heard will remain unknown to others." Cua v. Morrison, 626 N.E.2d 581, 586 (Ind.Ct.App.1993). For this reason "the public has a widespread belief that information given to a physician in confidence will not be disclosed to third parties absent legal compulsion, ... and [thus] the public has a right to have this expectation realized." Duquette v. Superior Court in and for County of Maricopa, 161 Ariz. 269, 778 P.2d 634, 640 (Ct.App. 1989). Our recognition in Givens of an implied covenant of confidentiality reflects these concerns.
Like all contract terms, however, the implied covenant of confidentiality becomes unenforceable when it offends public policy. Planters Gin Co. v. Federal Compress & Warehouse Co., 78 S.W.3d 885, 890 (Tenn.2002). For example, as we explained in Givens, the covenant is voided when a doctor determines that a patient's illness presents a foreseeable risk to third parties; in such circumstances, the doctor has a duty to break the patient's...
To continue reading
Request your trial
-
Willeford v. Klepper
...informal discussions [between defense counsel and plaintiffs’ healthcare providers] were once the order of the day[.]"), aff'd, 197 S.W.3d 722 (Tenn. 2006).But practice in Tennessee changed with this Court’s decision in Givens, 75 S.W.3d 383 . In Givens , the plaintiff originally had file......
-
Overstreet v. Trw Commercial Steering Div.
... ... interview with the treating physician regarding the medical condition of the plaintiff/employee. The employer also ... Co. v. Johnson, 151 S.W.3d 503, 507 (Tenn.2004). In that instance, our ... at 408-09 ... In Alsip v. Johnson City Medical Center, 197 S.W.3d 722 ... ...
- Weaver v. Myers
-
McNiel v. Cooper
...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......