Hall v. Crenshaw
| Citation | 449 S.W.3d 463 |
| Decision Date | 18 July 2014 |
| Docket Number | No. W2013–00662–COA–R9–CV.,W2013–00662–COA–R9–CV. |
| Parties | Cheryl HALL, Surviving Spouse and Next of Kin of Mark Lamar Hall, Jr., Deceased v. James H. CRENSHAW, M.D., The Jackson Clinic Professional Association, Keith Adkins, M.D., S. Patrick Whalen, Vanderbilt Heart and Vascular Institute, Vanderbilt School of Medicine, Vanderbilt University a/k/a Vanderbilt University Medical Center. |
| Court | Court of Appeals of Tennessee |
Marty R. Phillips and Ashley D. Cleek, Jackson, Tennessee, for Defendant/Appellants James H. Crenshaw, M.D. and The Jackson Clinic Professional Association.
Lee J. Chase, Memphis, Tennessee, for Plaintiff/Appellee Cheryl Hall, surviving spouse of Mark Emmett Lamar Hall, Jr.
This interlocutory appeal involves ex parte communications between defense counsel for a defendant medical entity and non-party physicians who treated the plaintiff's decedent and are employed by the defendant medical entity. The plaintiff filed this healthcare liability action against the defendant medical entity arising out of treatment of the plaintiff's decedent. The trial court held that the attorneys for the defendant medical entity are barred under Alsip v. Johnson City Medical Center, 197 S.W.3d 722 (Tenn.2006), from conferring ex parte with treating physicians employed by the defendant medical entity who are not named as defendants in the lawsuit. The defendant medical entity was granted permission for this interlocutory appeal. We hold that the defendant medical entity has an independent right to communicate privately with its employees, and this right is not abrogated by the filing of the plaintiff's healthcare liability lawsuit. Therefore, Alsip does not bar the medical entity's attorneys from communicating ex parte with physicians employed by the medical entity about the physician employee's medical treatment of the plaintiff's decedent. Accordingly, we reverse.
The facts pertinent to this appeal are undisputed. The decedent in this lawsuit, Mark Emmett Hall, Jr., was treated by healthcare professionals associated with Defendant/Appellant The Jackson Clinic Professional Association (“Jackson Clinic”), a Tennessee for-profit corporation located in Jackson, Tennessee, and by healthcare professionals associated with Vanderbilt University in Nashville, Tennessee. Mr. Hall died on February 23, 2010.
In May 2011, Mr. Hall's wife, Plaintiff/Appellee Cheryl Hall filed a healthcare liability action in the Circuit Court of Madison County, Tennessee, against several defendant healthcare providers, alleging the wrongful death of her husband. Among the defendants named in the lawsuit are the Jackson Clinic and Defendant/Appellant James H. Crenshaw, M.D., a physician with the Jackson Clinic.1
The complaint alleges: “The Defendants, physicians and their employers, under the doctrine of respondeat superior and/or ostensible or apparent agency or agency in general and/or as owners, agents, servants or employees, officers or directors, owed a duty of care to Mr. Hall” and that “Defendants, physicians and their employees ... deviated from the recognized standard of professional practice....” As to the Jackson Clinic, the complaint alleged:
The Jackson Clinic, Professional Association (a Tennessee for-profit corporation) provides medical physician services to its patients through its principals, owners, employees, servants, agents and/or contractors, including Dr. Crenshaw, who was at all times relevant hereto acting within the course and scope of his employment and as its agent, servant and employee under the doctrine of respondent superior and under the doctrine of apparent authority, and/or agency. Therefore, The Jackson Clinic is vicariously liable for the medical negligence of Dr. Crenshaw in regard to his care and treatment of his patient, Mark Emmett Lamar Hall, Jr.
Jackson Clinic retained the law firm Rainey, Kizer, Reviere & Bell, P.L.C. (“Rainey Kizer”) to represent its interests in the lawsuit. Discovery ensued.
In the course of discovery, Hall noticed the depositions of Jason Cherry, M.D., a Jackson Clinic cardiologist who practices with Dr. Crenshaw, and William Mariencheck, M.D., a Jackson Clinic pulmonologist and critical care specialist. Neither were named as a defendant in the lawsuit, but both treated the decedent during the pertinent time frame. Drs. Cherry and Mariencheck are shareholders and employees of the Jackson Clinic.
In short order, Rainey Kizer filed a motion asking the trial court for permission to meet ex parte with Drs. Cherry and Mariencheck to discuss matters relevant to the case, including their treatment of the decedent. Specifically, Rainey Kizer wanted to meet ex parte with the two physicians prior to their depositions. The motion argued that Rainey Kizer, as the attorneys for the Jackson Clinic, had an obligation to investigate before engaging in discovery and that the Jackson Clinic would be “unfairly oppressed and burdened” by having to engage in discovery without giving its attorneys the opportunity for such ex parte communication with Drs. Cherry and Mariencheck. Hall objected, so the trial court scheduled a hearing to resolve the dispute.
Prior to the hearing, in support of the motion, counsel for Jackson Clinic filed affidavits by Drs. Cherry and Mariencheck. Both said that they wanted Rainey Kizer to represent them in the lawsuit, and that they specifically wanted the law firm to represent them in the upcoming depositions.
Each affidavit said:
On December 20, 2012, the trial court held a hearing on this issue; the record does not indicate what transpired at this hearing. Following the hearing, the trial court entered an order denying the Jackson Clinic's motion for permission to communicate ex parte with Drs. Cherry and Mariencheck. The trial court reasoned that the two physicians are not individually named as defendants, so they should be considered non-party treating physicians. Relying on Alsip v. Johnson City Medical Center, 197 S.W.3d 722 (Tenn.2006), the trial court denied Rainey Kizer permission to have ex parte communications with them. The trial court added that Drs. Mariencheck and Cherry could choose to have Rainey Kizer represent them at the depositions, “if counsel believes it would be ethically permissible to do so.” Regardless, the trial court held, the Rainey Kizer attorneys may not communicate ex parte “with the ‘nonparty treating physicians' since they are not individually named parties to this lawsuit.”
Jackson Clinic filed a motion for permission to file an interlocutory appeal of the trial court's ruling pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure. Jackson Clinic attached to the motion supplemental affidavits from Drs. Cherry and Mariencheck. Each affidavit stated: “I ... do hereby testify that in addition to being a partner and shareholder of the Jackson Clinic Professional Association, I am also an employee of the clinic.” Both the trial court and the appellate court granted permission for this appeal.
In this interlocutory appeal, Jackson Clinic presents the following issue:
Does Tennessee's implied covenant of confidentiality prohibit the attorneys for the Jackson Clinic P.A. from speaking with the Clinic's own physicians/owners/employees about the decedent and his medical treatment when the Plaintiff is suing the Clinic (via its physicians/owners/employees) for alleged medical malpractice?
The issue involves the application of law to undisputed facts. Consequently, the standard of review is de novo; we accord no deference to the trial court's ruling. Alsip v. Johnson City Medical Center, 197 S.W.3d 722, 725 (Tenn.2006) ; Nelson v. Wal–Mart Stores, Inc., 8 S.W.3d 625, 628–29 (Tenn.1999).
On appeal, Jackson Clinic gives numerous reasons for its contention that the trial court's ruling is erroneous. First, it asserts that the trial court erred in relying on Alsip and its predecessor, Givens v. Mullikin ex rel. Estate of McElwaney, 75 S.W.3d 383, 407–08 (Tenn.2002). Alsip and Givens, it contends, “simply involved the manner of obtaining information from non-interested third parties.” In contrast, in the case at bar, shareholder/employees must be prepared for depositions in a lawsuit in which the Clinic, in which they have an ownership interest, is sued. Jackson Clinic contends that prohibiting its counsel from talking with its own employee agents to prepare for depositions is tantamount to denying the Jackson Clinic effective representation.
Jackson Clinic insists that the implied covenant of confidentiality does not apply in this case. It argues that, because Drs. Cherry and Mariencheck are agents/owners/employees of the Clinic, the knowledge they obtained while acting within the scope of their employment is already imputed to the Clinic, and the Clinic is already deemed to know any confidential information they know. Therefore, Jackson Clinic contends, if the Rainey Kizer attorneys spoke to the physicians, there would be no breach of the implied covenant of confidentiality because no new information would be shared.
Jackson Clinic also argues policy considerations. It notes that the implied covenant of confidentiality is intended to protect private and potentially embarrassing information. Since the Rainey Kizer attorneys are already privy to the Jackson Clinic medical records and other...
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