Wade v. Vabnick-Wener

• Citation: 922 F.Supp.2d 679
• Decision Date: 02 July 2010
• Docket Number: No. 2:09–cv–2275–V.,2:09–cv–2275–V.
• Court: U.S. District Court — Western District of Tennessee
• Parties: Ella G. Alexander WADE, Plaintiff, v. Felice A. VABNICK–WENER, M.D., Defendant.

922 F.Supp.2d 679

Ella G. Alexander WADE, Plaintiff,

v.Felice A. VABNICK–WENER, M.D., Defendant.

No. 2:09–cv–2275–V.

United States District Court,

W.D. Tennessee,

Western Division.

July 2, 2010.

Wendell L. Hoskins, II, Scot C. Allen, Law Office of Wendell L. Hoskins II, Caruthersville, MO, for Plaintiff.

Katherine L. Frazier, William D. Domico, Domico Kyle, PLLC, Memphis, TN, for Defendant.

ORDER GRANTING MOTIONS FOR PROTECTIVE ORDERS TO REPRESENT JEFFREY WILLIAMS, M.D., AND ANANT SHAH, M.D.

DIANE K. VESCOVO, United States Magistrate Judge.

Before the court are two motions filed by the defendant, Felice A. Vabnick–Wener, M.D., (“Dr. Vabnick”), seeking a limited protective order to allow Dr. Vabnick's attorneys, Domico Kyle, PLLC, to represent Dr. Jeffrey Williams and Dr. Anant Shah, nonparty physicians, for depositions and in anticipation of their testimony by deposition or at trial. The plaintiff, Ella G. Alexander Wade, filed responses in opposition to both motions. For the reasons that follow, the motions are granted.

I. PROCEDURAL AND FACTUAL BACKGROUND

In this wrongful death lawsuit, Wade claims Dr. Vabnick–Wener committed medical malpractice during heart surgery on her husband, Arlie Alexander, resulting in his death on November 12, 2002. On that day, Alexander was scheduled to undergo his third coronary artery bypass surgery at St. Francis Hospital. He was placed under anesthesia by Dr. Vabnick. At that time, Dr. Vabnick was a partner in the medical group, East Memphis Anesthesia Services (“EMAS”). She was the only anaesthesiologist assigned or scheduled for Alexander's surgery that day.

On the day of the surgery, Dr. Jeffrey Williams was an employee physician of EMAS and was assigned as the “board man” for EMAS. As such, he was responsible for keeping track of the flow of the surgery cases and the personnel available to staff the cases, to assign anaesthesiologists to the operating rooms, and to supervise the nurse anesthetists; he was not assigned to an operating room. Dr. Williams is now a partner of EMAS. On the day of the surgery, both Dr. Ariaf Kathawala and Dr. Anant Shaw were partners in EMAS.

In trying to get an I.V. started in Alexander prior to the beginning of the surgery, Dr. Vabnick received assistance from Dr. Kathawala. After placing Alexander under a general anaesthesia, Dr. Vabnick then attempted to place a central venous access line into Alexander's right internal jugular vein but had difficulty in doing so. Dr. Fernando Herrera, Alexander's treating cardiothoracic surgeon, upon noticing the difficulty Dr. Vabnick was having, left the operating room, located Dr. Williams, and requested assistance for Dr. Vabnick.

According to Dr. Vabnick's motions, Dr. Kathawala provided assistance to Dr. Vabnick regarding withdrawal of Alexander's central line prior to surgery and both Dr. Kathawala and Dr. Shaw provided assistance to Dr. Vabnick after the “code” began. Dr. Vabnick alleges, however, that Dr. Williams did not assist in the care and treatment of Alexander, no person has testified that Dr. Williams was involved in any way in the care and treatment of Alexander, and the medical records do not reflect that Dr. Williams was involved in the care and treatment of Alexander.

Wade initially filed a lawsuit on November 10, 2003, against Dr. Vabnick in the Circuit Court of Shelby County, Tennessee, for the Thirtieth Judicial District at Memphis, the Honorable Circuit Court Judge James Russell presiding (“the state court action”). Wade sought to introduce into evidence in the state court action her husband's death certificate signed by Dr. Herrera, Dr. Herrera's postoperative report, and the video deposition testimony of Dr. Herrera. On April 1, 2009, Judge Russell ruled that the death certificate and postoperative report were inadmissible and that the video testimony would be severely edited. Immediately after that ruling, Wade requested, and was granted, a voluntary nonsuit without prejudice.¹

Wade then filed the instant action in federal court on April 30, 2009. Based upon the same claim and against the same defendant as the state court action. In her initial disclosures filed in the federal court action on December 15, 2009, Wade identified Dr. Williams as a person having relevant knowledge concerning the events at St. Francis Hospital in November 2002. In addition, Wade's attorneys have verbally requested that Dr. Shah be produced for deposition on April 6, 2010.

In the present motion, Dr. Vabnick seeks a limited protective order allowing her attorneys, Domico Kyle, LLC, to represent Dr. Williams and Dr. Shah during deposition or at trial should they be called to testify and throughout the course of this litigation. Domico Kyle has previously represented Dr. Williams, other physicians at EMAS, and the group itself. Domico Kyle anticipates that it will represent Dr. Williams, Dr. Shah, other physicians at EMAS, and the group itself in future litigation. Dr. Vabnick represents to the court that the insurer of EMAS and Drs. Williams and Shah has already engaged Domico Kyle to represent Drs. Williams and Shah in their depositions.

Wade objects to Domico Kyle's representation of Dr. Williams and Dr. Shah on the grounds that Tennessee law prohibits defense counsel from communicating ex parte with the plaintiff's non-party, treating physicians because of the implied covenant of physician-patient confidentiality set forth in Overstreet v. TRW Commercial Steering Div., 256 S.W.3d 626, 631–35 (Tenn.2008); Alsip v. Johnson City Med. Ctr., 197 S.W.3d 722, 725–30 (Tenn.2006); and Givens v. Mullikin, 75 S.W.3d 383, 407–09 (Tenn.2002). Wade argues the present motions are based on the assumption that Dr. Williams was not Alexander's treating physician but that until he is deposed, his exact role is unclear. Wade also notes that the defendants brought these motions, not Dr. Shah or Dr. Williams in their own interest, and that the court should deny the motions in an abundance of caution. Wade insists that Dr. Vabnick should be limited to the use of formal discovery procedures to discover information from both Dr. Williams and Dr. Shah.

Dr. Vabnick contends that Overstreet,Alsip, and Givens are not applicable here because they only bar ex parte communications between opposing counsel and non-party, treating physicians who communicated with the patient. Dr. Vabnick argues that Dr. Williams was not a treating physician and that neither Dr. Shah nor Dr. Williams had any confidential communications with Wade. Dr. Vabnick contends that the rule established in Givens and Alsip does not apply because the covenant of confidentiality is premised on a contract created by payment of the patient to the physician and no such contract existed here because Alexander was never billed by EMAS or any physician for anesthesia services. Finally, Dr. Vabnick contends that the holding in Overstreet is limited to Worker's Compensation matters and is therefore inapplicable to this case, a medical malpractice action.

II. ANALYSIS

A. Choice of Law

Because this case is in federal court, the threshold question the court must resolve to decide this motion is whether the court should apply federal or state law.² Jurisdiction in this case is based on diversity of citizenship pursuant to 28 U.S.C. § 1332.³ In a conflict-of-laws analysis in a diversity case, a federal court applies the choice-of-law rules or conflict rules of the forum state, in this case, Tennessee. Cole v. Mileti, 133 F.3d 433, 437 (6th Cir.1998) (citing Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941)). In tort actions, Tennessee adheres to the “most significant relationship” analysis for conflict-of-law questions. Hataway v. McKinley, 830 S.W.2d 53, 59 (Tenn.1992). Here, the defendant is a Tennessee resident and the alleged tortious acts occurred in Tennessee. (Compl. ¶ 3.) Accordingly, the court must apply the substantive law of the state of Tennessee except in matters governed by the Federal Constitution or by acts of Congress. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78–79, 58 S.Ct. 817, 82 L.Ed. 1188 (1938)

(holding that a federal court exercising jurisdiction over state-law claims must apply state laws when deciding those claims unless those state laws are superceded by the United States Constitution or an act of Congress); 28 U.S.C. § 1652 (2006).⁴

B. HIPAA and Preemption of State Law

In 1996, Congress passed the Health Insurance Portability and Accountability Act of 1996, 42 U.S.C. 1320d et seq. (“HIPAA”), which governs the dissemination of protected health information. HIPAA became effective on April 14, 2003. “[Through] HIPAA, Congress has spoken about the protection that must be extended to patients regarding their health related information.” ⁵EEOC v. Boston Market Corp., No. CV 03–4227, 2004 WL 3327264, at *2, 2004 U.S. Dist. LEXIS 27338, at *7 (E.D.N.Y. Dec. 16, 2004). Thus, the court must first look to HIPAA to determine if it controls ex parte communications with non-party physicians in this case.⁶ The collective research of the partiesand the court has revealed that this is a case of first impression in the Western District of Tennessee.

Under the Supremacy Clause of the United States Constitution, the laws of the United States “shall be the supreme law of the Land; ... and Thing in the Constitution or laws of any state to the Contrary notwithstanding.” U.S. Const. Art. VI, cl. 2. The Supremacy Clause results in federal preemption of state law if: (1) Congress expressly preempts state law; (2) Congress has completely supplanted state law in that field; (3) adherence to both federal and state law is impossible; or (4) the state law impedes the achievements of the objectives of Congress. Wisconsin Public Intervenor v. Mortier, 501 U.S. 597, 604–05, 111 S.Ct. 2476, 115 L.Ed.2d 532 (1991). Although Congressional intent is commonly the starting point for federal preemption analysis, Ingersoll–Rand v....