Academic journal article The University of Memphis Law Review

Physician-Patient Confidentiality in Health Care Liability Actions: HIPAA's Preemption of Ex Parte Interviews with Treating Physicians through the Obstacle Test

Academic journal article The University of Memphis Law Review

Physician-Patient Confidentiality in Health Care Liability Actions: HIPAA's Preemption of Ex Parte Interviews with Treating Physicians through the Obstacle Test

Article excerpt

I. Introduction 98

II. Background: Evolution of Tennessee Law Permitting Ex Parte Interviews 101

A. Tennessee Law Prior to Section 121(f): The Implied Covenant of Confidentiality and the Risk of Improper Disclosures 102

B. "The Givens Fix": Working Around Physician-Patient Confidentiality in Health Care Liability Discovery... 105

III. Federal Protection of Health Information: HIPAA, the Privacy Rule, and Preemption of State Law 110

A. HIPAA 's Regulatory Scheme and Preemption Provision .110

B. Preemption Analysis Performed by Other Courts 114

1. The First View: The Privacy Rule Does Not Preempt Ex Parte Interviews 114

2. The Second View: The Privacy Rule Preempts Ex Parte Interviews 118

C. Problems with Other Courts ' Preemption Analysis: Overlooking the Obstacle Test 121

1. Applying the Impossibility Test 122

2. Applying the Obstacle Test 123

IV. A Solution 127

A. Section 121(f) Fails the Obstacle Test..............................128

B. Mandating Attendance of Plaintiff's Counsel at All Interviews to Avoid Obstacle Preemption..................136

V. Conclusion...........................................................................137


Within the last decade, the Tennessee General Assembly has significantly transformed the procedure for bringing and defending "health care liability actions"-more commonly known as medical malpractice claims.1 Under the current system, a plaintiff must give notice of the potential lawsuit to any named defendant at least sixty days prior to filing suit.2 Because the General Assembly intended to facilitate the early assessment and settlement of claims,3 the plaintiff must also execute a valid authorization, compliant with the federal Health Insurance Portability and Accountability Act ("HIPAA"),4 allowing the defendant to obtain and review the plaintiffs medical records.5 Moreover, when filing a complaint, a plaintiff must submit certification that plaintiffs counsel has consulted with a competent medical expert who finds that the plaintiffs health care liability claim has a good-faith basis.6 Prior to these reforms, the plaintiffs counsel needed ensure only that the complaint was filed within the applicable limitations period and that an expert was retained and disclosed within the time frame of traditional discovery procedures. Unsurprisingly, health care liability actions decreased by forty-four percent from 2008 to 2011.7

In addition to these more stringent procedural requirements for filing health care liability claims, another reform has taken effect for all health care liability claims filed on or after July 1, 2012.8 This reform is found in section 29-26-121(f) of the Tennessee Code, which now permits defense counsel to petition a trial court for a qualified protective order granting the right to conduct ex parte interviews with the plaintiffs treating physicians.9 As with informal interviews of witnesses in other types of cases, the meetings with treating physicians are off-the-record, and defense counsel has no obligation to disclose to the plaintiff the information revealed by the treating physician during the interview.10 Section 121 (f)'s reforms are of a very different nature from the new pre-suit notice, authorization, and good-faith certificate requirements because ex parte interviews with treating physicians may impact the physician-patient relationship and implicate federal law protecting private health information." As the Tennessee Supreme Court has explained:

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." 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. …

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