In Hall v. Crenshaw, 449 S.W.3d 463 (Tenn. App. 2014), a plaintiff filed a medical malpractice lawsuit against Johnson Clinic, among other defendants, alleging wrongful death arising out of treatment rendered to the plaintiff’s decedent. Plaintiff sought the depositions of two physicians employed by the Clinic who had treated decedent during the relevant timeframe but were not named in the lawsuit. The malpractice allegations against the Clinic were not based on the conduct of the two non-party physicians. Defense counsel for the Clinic sought to meet ex parte (outside the presence of plaintiff’s counsel) with the non-party physicians to discuss the lawsuit and treatment rendered to decedent and to prepare for the depositions. Plaintiff objected to the ex parte communications and contended communications with the non-party physicians were only permitted in formal depositions.
The Trial Court’s Ruling
The trial court denied defense counsel permission to have ex parte communications with the two non-party physicians, relying on Alsip v. Johnson City Medical Center, 197 S.W.3d 722 (Tenn. 2006). In Alsip, a medical malpractice lawsuit, the Tennessee Supreme Court held counsel for the defendant medical center could not have ex parte communications with the plaintiff’s non-party physicians, and that defense counsel would have to engage in formal discovery such as a deposition. In Hall, the trial court reasoned that because the two physicians were not individually named as defendants, they should be considered non-party treating physicians.
The issue presented on appeal in Hall was whether defense counsel for the defendant medical entity (Jackson Clinic) could communicate ex parte with treating physicians who were employees of the Clinic but not named as defendants in the medical malpractice lawsuit.
While acknowledging ex parte communications between defense counsel and a patient’s non-party treating physicians violated the implied covenant of confidentiality, the appellate court in Hall found Alsip was distinguishable because the two non-party physicians in Hall were employees of the Clinic.
In considering the situation involving employees of a medical entity, the court found persuasive the reasoning of cases from other states that have recognized a distinction when the non-party treaters are employees of the defendant medical entity. For example, Florida courts allow defense counsel to communicate with non-party hospital employees on the basis that there is no disclosure of confidential patient information when a hospital talks with its employees about information obtained in the course of employment.¹ Similarly, Arizona permits a hospital’s defense counsel to confer ex parte with treating physicians of the defendant hospital, reasoning a corporate defendant has an independent right to speak freely with its employees.²
Some states have taken more restrictive approaches on the issue of whether defense counsel for a medical entity can speak ex parte with employees or agents of the medical entity. Illinois generally prohibits such ex parte communications, “unless and until the actions of the [medical entity’s] employees are alleged to be a basis for plaintiff’s injuries.”³ Under Washington state law, defense counsel can only communicate ex parte with employees “who have firsthand knowledge of the alleged negligent incident and only as to communications about the facts of that incident.”4
Ultimately, the appellate court in Hall found persuasive and adopted the rationale from cases holding counsel for a defendant medical entity could confer ex parte with non-party treating physicians who are employed by the defendant medical entity. The court reasoned that an entity can only function through its agents and employees, employees’ acts are attributed to the entity itself, and any knowledge that non-party physicians may have was acquired in the course and scope of their employment by the defendant entity, with such knowledge being imputed to the entity. Medical entities have an independent right to discuss a patient with their own employees, separate and independent of any implied waiver arising from the filing of a medical malpractice lawsuit. Furthermore, the filing of a medical malpractice lawsuit did not somehow bar these permissible communications.
There are undoubtedly important patient privacy concerns for restricting or prohibiting ex parte communications with a patient’s treating professionals. Nonetheless, prohibiting ex parte communications with employees of a defendant medical entity does not protect patient privacy; such a prohibition would lead to absurd results. For instance, if ex parte communications with employees were prohibited, a plaintiff could sue just a medical entity (or make a pre-suit demand only against the entity), such that defense counsel would be prohibited from speaking with any treating employees outside of a deposition. Blocking communications with an entity’s employees would serve only to unfairly further the litigation interests of those attempting to interfere with employee communications.
¹ Estate of Stephens ex rel. Clark v. Galen Health Care, Inc., 911 So.2d 277, 281-82 (Fla. App. 2005).
² Phoenix Children’s Hosp., Inc. v. Grant, 265 P.3d 417, 418 (Ariz. App. 2011).
³ Aylward v. Settecase, 948 N.E.2d 769 (Ill. App. 2011).
4 Youngs v. Peacehealth, 316 P.3d 1035, 1048 (Wash. 2014).