Medical Records Law in Tennessee - Release of Records/Confidentiality of Patient Records of Physicians Clinics and Hospitals

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September 11, 2018
Author: Jeffery L. Lay
Organization: JONES, HAMILTON & LAY, PLC

A. Tennessee Law
1. Common law of Tennessee concerning confidentiality of medical records prior to Givens v. Mullikin, 75 S.W.3d 383 (Tenn. 2002).

Prior to the Givens case, the leading Tennessee case dealing with confidentiality and privilege as relates to the physician-patient relationship was Quarles v. Sutherland, 389 S.W.2d 249 (Tenn. 1965). In Quarles, the plaintiff was injured on October 14, 1963, as a result of an accident at the Top Value Stamp Store in Nashville. She was subsequently treated by the defendant, who was the regular physician of the Top Value Stamp Store, and to whom the plaintiff had been sent by the store.

On November 6, 1963, plaintiff’s attorney advised the defendant-physician that the plaintiff was represented by counsel and requested that no medical reports be given to anyone without first notifying plaintiff’s counsel’s office. Thereafter, the defendant-physician wrote a letter to plaintiff’s counsel dated November 8, 1963, advising plaintiff’s counsel of his medical findings and forwarded a copy of the letter to the attorney for the Top Value Stamp Store. Plaintiff sued the defendant-physician alleging he had a duty to keep private and privileged all information he obtained by virtue of his contract of employment as the plaintiff’s physician and that the defendant-doctor breached his duty by forwarding a copy of the report as alleged. The issue before the Court was whether communications between physician and patient are by law privileged communications and whether a disclosure of such information to a third party gives rise to a cause of action under the law.

The Court noted that the common law of England as it stood at and before the separation of the colonies had been adopted by the State of Tennessee. The Court found that under the English common law, neither the patient nor the physician had a privilege to refuse to disclose in Court a communication of one to the other, nor does either have a privilege that the communication not be disclosed to a third person. The Court further noted that the Tennessee General Assembly had not seen fit to enact any statute changing this common law rule.

The Court specifically rejected the argument that there was an implied contract between the plaintiff and the defendant physician requiring that the results of the examination would remain confidential. In so holding, the Court stated that the declaration (complaint) filed in the case made it clear that Dr. Sutherland was not the plaintiff’s physician nor did the plaintiff at any time attempt to compensate Dr. Sutherland for his services. Instead, the plaintiff simply received gratuitous medical treatment from Dr. Sutherland, the consulting physician of the Top Value Stamp Store. Accordingly, the Tennessee Supreme Court affirmed the dismissal of this case for failure to state a claim.

Quarles, as decided, stood for two propositions:
a. No implied covenant of confidentiality existed between physician and patient – (at least in those situations in which medical services were gratuitously rendered).
b. Physicians had no testimonial privilege at common law.

As will be discussed infra, in the wake of Givens, Alsip and Overstreet, the first proposition is no longer the law in Tennessee. However, the second proposition is still the law in Tennessee.

2. Givens v. Mullikin, 75 S.W.3d 383 (Tenn. 2002).
In 2002, the Tennessee Supreme Court, in a sweeping decision, held that an implied covenant of confidentiality of a patient’s medical records can arise from the original contract for treatment for payment. In 1988, the plaintiff, Connie Jean Givens, was involved in a traffic accident involving the defendant, Larry McElwaney.1 Plaintiff, Givens, filed a lawsuit for personal injuries against defendant, McElwaney. The defendant’s insurance carrier, Allstate Insurance Company, engaged The Richardson Firm to defend Mr. McElwaney. It is alleged The Richardson Firm issued more than seventy (70) discovery subpoenas to various records custodians; that in no case did The Richardson Firm actually depose a records custodian; that instead, all but six (6) of the discovery subpoenas stated that the records custodian could send a copy of the plaintiff’s “entire file” to The Richardson Firm “in lieu of personal appearance”. It was also alleged that The Richardson Firm also notified plaintiff’s counsel that depositions of records custodians would not be taken unless the plaintiff objected. After receiving this notice, the plaintiff’s attorney wrote letters to the custodians directing them not to comply with the subpoenas. In addition, it was alleged that counsel for the defendant had a private ex parte conversation with one of the plaintiff’s treating physicians.

On June 12, 1998, the plaintiff (Givens) filed a separate lawsuit against Mr. McElwaney and Allstate alleging, among other things, that The Richardson Firm’s practice of obtaining her medical records through use of defective subpoenas invaded her right to privacy and induced the involved health care providers to breach their confidential relationship with her. The plaintiff also alleged in her lawsuit that The Richardson Firm induced her treating physician to breach express and implied contracts of confidentiality with her by privately speaking with counsel from The Richardson Firm. Interestingly, the plaintiff (Givens) did not sue The Richardson Firm directly but instead sued McElwaney and Allstate alleging they were vicariously liable for the tortious acts of The Richardson Firm. Both McElwaney and Allstate filed motions to dismiss the complaint pursuant to Rule 12.02(6) for failure to state a claim on which relief can be granted.

In Givens, the Tennessee Supreme Court held that an implied covenant of confidentiality can arise from the original contract of treatment for payment.

In so holding, the Court stated:
Since our decision in Quarles, however, the General
Assembly has enacted several statutes that expressly
require a physician and others to keep a patient’s medical
records and identifying information confidential. See Tenn.
Code Ann. §§ 63-2-101(b)(1)(1997); 68-11-1502(2001); 68-
11-1503(2001). Through the enactment of these statutes
patients and physicians now clearly expect that the physician
will keep the patient’s information confidential, and this
expectation arises at the time that the patient seeks
treatment. Id. at 407.

The Court held that the physicians to whom the record subpoenas were directed were not under a duty to discover technical defects and would not be liable for responding to technically defective subpoenas absent a showing that the physician acted in bad faith or with actual knowledge of the subpoena’s invalidity. Finally, the Court held that the existence of an implied covenant of confidentiality prohibits a physician from having ex parte communications which divulge confidential medical information informally without the patient’s consent.

The Court in Givens distinguished the Quarles case by stating that the Givens decision arose from an implied covenant wherein the patient agreed to pay money in return for medical treatment while in Quarles there was no such agreement and the patient’s treatment was rendered gratuitously to the patient by the physician. The Court, however, did cite the Quarles case with approval for the proposition that there is no testimonial privilege between a physician and patient at common law and if called to give testimony in a court proceeding via deposition or live testimony the physician must do so.

3. Alsip v. Johnson City Medical Center, 197 S.W.3d 722 (Tenn. 2006).
In Alsip, the trial court entered an order permitting counsel for the defendants in a medical malpractice lawsuit to have private ex parte communications with the treating physicians for the plaintiff’s decedent. The Supreme Court held the trial court erred in issuing this order and ruled that such ex parte communications violated the implied covenant of confidentiality that exists between physicians and patients. In so holding, the Court stated:

Although no testimonial privilege protecting the doctorpatient
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. Id. at 725-726.
. . . .
Like all contract terms, however, the implied covenant of
confidentiality becomes unenforceable when it offends public
policy. (Citation omitted). 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 the duty to
break the patient’s confidence and risks no civil liability when
he does so. 75 S.W.3d at 409. State law also requires
doctors to report “any wound or other injury inflicted by
means of a knife, pistol, gun or other deadly weapon or other
means of violence” to police in clear violation of the covenant
of confidentiality, in order to promote vital societal interests
in public safety, law enforcement and crime deterrence.
Tenn. Code Ann. § 38-1-101 (2005). Public policy as
reflected by state law also vitiates the covenant of
confidentiality by requiring doctors to report suspected child
abuse, sexual assault and instances of venereal disease in
minors who are thirteen and under. Tenn. Code Ann. § 37-
1-403 (2001). Thus, the covenant of confidentiality is not
absolute and can be voided when its enforcement would
compromise the needs of society.

Most important to this case, public policy considerations
reflected in the Tennessee Rules of Civil Procedure require
the covenant of physician-patient confidentiality be voided
for the purpose of discovery. (Citations omitted).
Tennessee Rule of Civil Procedure 26.02, which defines the
scope of discovery, clearly states that unprivileged
information relevant to the lawsuit is discoverable. In Givens
we stated “a physician cannot withhold [the plaintiff’s
relevant medical] information in the face of a subpoena or
other request cloaked with the authority of the court.” 75
S.W.3d at 408. This exception stems from “public policy
[concerns] as expressed in the rules governing pre-trial
discovery: in any medical malpractice action, the dictates of
due process require voidance of the covenant of
confidentiality so that the truth of the matter can be revealed
and the defendant can defend himself against civil liability.
Id. Thus, for example, if the parties dispute whether certain
information is relevant, the trial court may order discovery
upon a finding of relevance because, by filing the lawsuit,
the plaintiff impliedly consents to disclosure of his
relevant medical information. Id. at 726-727. (Emphasis

The Court went on to hold:

Because consent here to disclose the decedent’s
confidential, relevant medical information was implied at law
as a consequence of the plaintiff’s conduct (i.e., by the filing
of the lawsuit), rather than done expressly (e.g. by written
waiver) the scope of the plaintiffs’ consent must be
determined by the express terms of the Tennessee
Rules of Civil Procedure, which do not prescribe ex
parte communications. Id. at 728 (Emphasis Added).

4. Overstreet v. TRW Commercial Steering Division, 256 S.W.3d, 626 (Tenn. 2008).
In Overstreet, the Tennessee Supreme Court abandoned the legal fiction that the covenant of confidentiality was “implied in fact” based upon the patient’s agreement to pay for services provided by the physician and instead held that the covenant of confidentiality was implied in law. In so holding, the Supreme Court stated:

We maintain that “[a]ny time a doctor undertakes the
treatment of a patient, and the consensual relationship of
physician and patient is established . . . the doctor warrants
that any confidential information gained through the
relationship will not be released without the patient’s
permission”. Id. at 634.2

5. The Tennessee Patient’s Privacy Protection Act, T.C.A. § 68-11-1501, et seq.
In 1996, the Tennessee General Assembly passed the “Patient’s Privacy Protection Act” found in Tenn. Code Ann. § 68-11-1501 et. seq.. This Act statutorily recognizes that every patient entering and receiving care at a health care facility licensed by the board for licensing health care facilities has the expectation of and right to privacy for care received at such facility. T.C.A. § 68-11-1502.

The Act further provides that the name, address and other identifying information of a patient shall not be divulged except in certain limited instances. These limited instances include the following:
(a) Any statutorily required reporting to health or governmental authorities;
(b) Access by an interested third-party payer or designee, for the purpose of utilization reviews, case management, peer reviews or other administrative functions;
(c) Access by health care providers from whom the patient receives or seeks care;
(d) If the patient does not object, any directory information, including not only the patient, the patient’s general health status and the patient’s location and telephone number.

Directory information shall be released to all inquirers, only if the patient has been notified, upon admission to the hospital, of the patient’s right to object to the information that may be released and has not objected; or, if the patient is in a physical or mental condition such that the patient is incapable of making an objection and the next of kin or patient representative does not come forward and object; and
(e) Any request by the office of inspector general or Medicaid fraud control unit with respect to an ongoing investigation.3

The Act provides that any violation of the confidentiality provision of the Act shall be an invasion of the patient’s right to privacy.4 Civil lawsuits for damages for invasion of privacy shall be available to a person for violation(s) of the Act.5 The Act further provides that it shall not be unlawful to disclose nor shall there be any liability for disclosing, medical information in response to a subpoena, court order or other request authorized by state or federal law.6

6. Medical Records Act of 1974, T.C.A. § 68-11-301, et seq.
This Act deals exclusively with hospital records.
T.C.A. § 68-11-302(5)(A) defines “hospital records” as including “those medical histories, records, reports, summaries, diagnoses, prognoses, records of treatment and medication ordered and given, entries, X-rays, radiology interpretations and other written, electronic, or graphic data prepared, kept, made or maintained in hospitals that pertain to hospital confinements or hospital services rendered to patients admitted to hospitals or receiving emergency room or outpatient care.”

T.C.A. § 68-11-302(4) defines “hospital” as “any institution, place, building or agency that has been licensed by the board, as defined in § 68-11-201, or any clinic operated under the authority of a local or regional health department established under chapter 2, parts 6 and 7 of this title.

T.C.A. § 68-11-302(6)(A) defines “patient” to mean “outpatients, inpatients, persons dead on arrival, persons receiving emergency care and the newborn.” However, a “patient” under the Act does not include an unborn fetus.

T.C.A. § 68-11-302(6)(B).
The Act provides that “unless restricted by state or federal law or regulation, a hospital shall furnish to a patient or a patient’s authorized representative such part or parts of the patient’s hospital records without unreasonable delay on request in writing by the patient or the representative.”

T.C.A. § 68-11-304(a)(1). The party requesting the patient’s records is responsible for the reasonable cost of copying and mailing the patient’s records. T.C.A. § 68-11-304(a)(2)(A)(i). The charges to a patient or lawyer authorized by the patient to review the patient’s records shall not exceed the “reasonable cost for copying and the actual cost of mailing the records”. T.C.A. § 68-11- 304(a)(2)(A)(ii). The statute also sets forth certain copying charges which are presumed to be reasonable. The copying charges presumed to be reasonable are a fee of $18.00 for the first five (5) pages, a fee of $.85 per page for the 6th through the 50th page and a fee of $.60 per page for the 51st to the 250th page and $.35 for each page thereafter. T.C.A. § 68-11-304(a)(2)(A)(i). A fee for certifying medical records not to exceed $20.00 for each record certified is also presumed to be reasonable. T.C.A. § 68-11-304(a)(2)(A)(i).

Practice Point: It is not uncommon for the cost of hospital records to run in excess of $1,000.00 or more in the event of extended or multiple hospitalizations. Before obtaining all records of all hospitalizations of a patient at a particular hospital, thought should be given as to whether you need all these records. If you do, by all means obtain them via authorization, subpoena or court order. However, if you do not, there is nothing wrong with limiting your request to certain types of records or a certain hospitalization.
T.C.A. § 68-11-312 provides that as relates to communications between health care providers while rendering care to their patients there is “no implied covenant of confidentiality or other restriction that precludes health care providers from communicating with each other in the course of providing care and treatment to a patient”. T.C.A. § 68-11-312(b)(1)(A). The statute also provides there is no implied covenant of confidentiality or other restriction that precludes a health care provider from responding to a request from a hospital regarding entries in the patient’s records of the requesting hospital made or reviewed by that health care provider during the patient’s hospitalization. T.C.A. § 68-11-312(b)(1)(B).

7. “Hospital Records as Evidence” Act, T.C.A. § 68-11-401 et seq. The “Hospital Records as Evidence” Act provides a process to admit into evidence a hospital record provided pursuant to subpoena in such a way as it minimizes the need for the custodian to appear in person at trial. The Act should be read in pari materia with Tenn. R. Evid. 803(6) and Tenn. R. Evid. 902(11) to insure that it falls within the hearsay exception relating to records of regularly conducted activity and the self-authentication of such records. The records covered by this Act are the same “hospital records” as defined in T.C.A. § 68-11-302 provided a subpoena duces tecum for records under the Act shall not be deemed to include x-rays, electrocardiograms and like graphic matter unless specifically referred to in the subpoena.7 The Act provides that when a subpoena duces tecum is served upon a custodian of records of a hospital or any community mental health center in an action or a proceeding in  which the hospital is neither a party nor the place where the cause of action is alleged to have arisen and the subpoena requires the production of any part of the records of the hospital or the community health center relating to the care or treatment of a patient, it is sufficient compliance with the subpoena if the custodian or other officer of the hospital or community health center within five (5) days after being served with a subpoena duces tecum either by personal delivery or certified or registered mail, files with the court clerk or the officer, body or tribunal conducting the hearing, a true and correct copy.8 Any party intending to use this statute must furnish the adverse party or the adverse party’s attorney a copy of the subpoena duces tecum not less than ten (10) days prior to the date set for the trial of the matter for which the records may be introduced.9

Practice Point: This statute does not, on its face, apply in instances in which the hospital is a party to the case or the place where the medical care which was the subject of the lawsuit was rendered. Thus, in those cases in which the hospital is not sued but the subject matter of the lawsuit occurred at the hospital (i.e. a surgeon is sued over an alleged negligently performed procedure), it would appear this statute has no application and the medical records custodian would not be exempt from subpoena to trial.

The copy of the records so produced shall be separately enclosed in an inner envelope or wrapper, sealed, with the title and number of the action, name of witness (medical records custodian) and date of subpoena clearly inscribed on the inner envelope or wrapper; the sealed envelope or wrapper shall then be enclosed in an outer envelope or wrapper directed to the clerk of the court or to the judge if the subpoena directs attendance in court or if the subpoena directs attendance at a deposition to the officer before whom the deposition is to be taken, at the place designated in the subpoena for taking of the deposition or at such officer’s place of business; and in any other case to the officer, body or tribunal conducting the hearing at a like address.10

The copy of the records shall remain sealed and shall be opened only at the time of trial, deposition or other hearing, upon the direction of the judge, court, officer, body or tribunal conducting the proceeding, in the presence of all parties who have appeared in person or by counsel at such trial, deposition or hearing. T.C.A. § 68-11-404(a)(1).

Upon receipt of a subpoena, the custodian is required to send the records to the attorney responsible for the issuance of the subpoena at the place, and on or before the date specified in the subpoena if such subpoena states conspicuously on its face that “the records are required in a tort action or proceeding in which the plaintiff has raised the issue of plaintiff’s physical or emotional condition” and directs the custodian’s attendance at a deposition.11 In such instances, the attorney responsible for the issuance of the subpoena need not meet the requirements of subsection (a) before opening the sealed records, if the attorney provides a copy of the records to the plaintiff or someone authorized on the plaintiff’s behalf to receive them.12

The records are required to be accompanied by an affidavit of a custodian stating in substance:
a. That the affiant is duly authorized custodian of the records and has authority to certify the records;
b. That the copy is a true copy of all the records described in the subpoena;
c. That the records have been prepared by the personnel of the hospital or the community mental health center, staff physicians or persons acting under the control of either, in the ordinary course of the hospital or the community mental health care center business, at or near the time of the act, condition or event reported in the records; and
d. Certifying the amount of reasonable charges of the hospital or community mental health center for furnishing such copies of the records.13

If the hospital or community health center has none of the records described or only part of the records, the custodian is required to so state in the affidavit and file the affidavit and such records as are available.14 The filing of the affidavit with respect to reasonable charges shall be sufficient proof of the expense which shall be taxed as court costs.15

The copy of the record so produced shall be admissible into evidence to the same extent as though the original of the records were offered and the custodian had been present and testified as to the matters stated in the affidavit.16 Caveat – Consider T.C.A. § 24-7-122 which, among other things, provides when medical records or copies thereof are used at trial, the party desiring to use the records must serve the opposing party with a copy of the records no later than sixty (60) days before the trial, with notice that the records may be offered in evidence, notwithstanding any other rules or statutes to the contrary.

The affidavit shall be admissible into evidence and the matters stated in the affidavit shall be presumed true in the absence of the preponderance of the evidence to the contrary.17 Under the Act, when the personal attendance of the custodian is required for trial or deposition, the subpoena duces tecum shall contain a clause which reads:
The procedure authorized pursuant to § 68-11-402 will not be deemed sufficient compliance with the Subpoena.18 Where both the personal attendance of the custodian and production of the original records are required, the subpoena duces tecum must contain a clause that reads:

Original records are required and the procedure authorized pursuant to § 68-11-402 will not be deemed sufficient compliance with the subpoena.19

8. “Medical Records” of Health Care Providers Statute, T.C.A. § 63-2-101 et seq.
T.C.A. § 63-2-101(a)(1) provides that a health care provider is required to furnish to a patient or a patient’s authorized representative a copy or summary of such patient’s medical records, at the option of the health care provider, within ten (10) working days upon request in writing by the patient or such patient’s authorized representative. Upon a failure of the health care provider to comply with this provision, proper notice shall be given to the provider’s licensing board or boards and the provider may be subject to disciplinary actions that include sanctions and a monetary fine.20

The statute defines “health care provider” as any person required to be licensed under Title 63 of Tennessee Code Annotated. This includes, but is limited to, the following: medical doctors, dentists, chiropractors, podiatrists, nurses, osteopathic physicians, pharmacists, psychologists, physician assistants and professional counselors.

“Medical records” means “all medical histories, records, reports and summaries, diagnoses, prognoses, records of treatment and medication ordered and given, X-ray and radiology interpretations, physical therapy charts and notes and lab reports.21

T.C.A. § 63-2-102(a) provides the party requesting the patient’s records is responsible to the provider for the reasonable cost of copying and mailing such patient’s records. The statute sets forth certain charge limits for copying which cannot be exceeded.22 Copying charges cannot exceed $20.00 for 5 pages or less, and $0.50 per page for each page copied after the first 5 pages. Upon request, the health care provider is required to submit a notarized affidavit by the custodian of records certifying that the records provided in response to the request:
(a) Are true and correct copies of the records in the custody of the affiant;
(b) Were made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of and a business duty to record or transmit these matters;
(c) Were kept in the course of regularly conducted activity; and
(d) Were made by the regularly conducted activity as a regular practice.23

In addition to the charges for the copying of the records, the provider may charge up to $20.00 for this affidavit and the affidavit shall qualify for the business record exception to the hearsay rule.24 Caveat – Consider T.C.A. § 24- 7-122 which, among other things, provides when medical records or copies thereof are used at trial, the party desiring to use the records must serve the opposing party with a copy of the records no later than sixty (60) days before the trial, with notice that the records may be offered in evidence, notwithstanding any other rules or statutes to the contrary.

The statute specifically provides that payment of such costs may be required by the provider prior to the records being furnished; however, upon payment of costs, the patient or the patient’s authorized representative has the right to receive the records without delay.25

9. Statutory Rules Relating to Workers’ Compensation Cases, T.C.A. § 50-6-204
In workers’ compensation cases, the employer is obligated to furnish free of charge to the employee who has sustained a work-related injury such medical and surgical treatment, supplies and equipment as are reasonably necessary because of the work-related accident. Because of this and in order to facilitate the timely resolution of workers’ compensation claims, the employer is entitled to reasonable access to the employee’s medical information.26 The procedure which must be followed for the employer to obtain access to the employee’s medical information is as follows:
(1) An employee claiming workers’ compensation benefits is required to provide the employer or the division of workers’ compensation with a signed, written medical authorization form as prescribed by the commissioner addressed to a specific medical provider authorized by the employer pursuant to the Workers’ Compensation Laws permitting the release of information through communication either orally or in writing as authorized by the Workers’ Compensation Laws.

The Tennessee Department of Labor and Workforce Development has adopted a form that complies with the statutory requirements. A copy of the “Medical Waiver and Consent” (Form C-31) is provided in the Appendix.

The statute further provides that upon compliance with the means provided in T.C.A. § 50-6-204(a)(2)(c) for obtaining access to the employee’s medical information, there shall be no implied covenant of confidentiality, prohibition against ex parte communications or privacy of medical records in the custody of authorized treating physicians with respect to case managers, employers or insurance companies or their attorneys.28 The statute further provides limits on the provider’s charges for copying records. The statute specifically provides that no medical provider shall charge more than $10.00 for the first 20 pages or less and $0.25 per page for each page after the first 20 pages.29

The employee or the employee’s attorneys shall be provided copies, no later than ten (10) days in advance of the deposition of the authorized treating physician of all written memorandum or visual recorded materials including emails or other written materials provided to the employee’s authorized treating physician by case managers, employers, insurance companies or other attorneys or received from the employee’s authorized treating physician.30

10. Statutory exemption from subpoenas to trial, T.C.A. § 24-9-101.
T.C.A. § 24-9-101(a)(8) provides that a custodian of medical records, if such custodian files a copy of the applicable records with an affidavit with the Court and follows the procedure provided in Title 68, Chapter 11, Part 4 for the production of hospital records pursuant to a subpoena duces tecum is exempt from a subpoena to trial but subject to a subpoena for a deposition. This exemption applies only to a hospital’s records custodian and does not apply to other record custodians such as one in a doctor’s office. Phipps v. Insurance Co. of the State of Pennsylvania, 2002 WL 83602 (Tenn. 2002); Shipley v. Insurance Company of North America, 1995 WL 688886 (Tenn. 1995). T.C.A. § 24-9 -101(b) provides that if a records custodian exempt from subpoena is required to file a motion to quash the subpoena, the court may award reasonable attorneys fees incurred in defending against the subpoena.

11. Tenn. R. Civ. P. 45 – Subpoenas.
Rule 45 of the Tennessee Rules of Civil Procedure is the applicable court rule dealing with subpoenas in state court. Effective July 1, 2013 the provisions of Rules 45.01, 45.04 and 45.07 have been amended. Rule 45.01 now reads as follows:
Every subpoena shall be issued by the clerk, shall state the name of the court and the title of the action, and shall command each person to whom it is directed to attend and give testimony at the time and place and for the party therein specified. The clerk shall issue a subpoena or a subpoena for the production of documentary evidence, signed but otherwise in blank, to a party requesting it, who shall fill it in before service.31

Tenn. R. Civ. P. 45.02 relates to subpoenas requiring production of documents and things, or for inspection of property and provides in part as follows:
A subpoena may command a person to produce and permit inspection, copying, testing, or sampling of designated books, papers, documents, electronically stored information, or tangible things, or inspection of premises with or without commanding the person to appear in person at the place of production or inspection.

When appearance is not required, such a subpoena shall also require the person to whom it is directed to swear or affirm that the books, papers, documents, electronically stored information, or tangible things are authentic to the best of that person’s knowledge, information and belief and to state whether or not all books, papers, documents, electronically stored information or tangible things responsive to the subpoena have been produced for copying, inspection, testing, or sampling. Copies of the subpoena must be served pursuant to Rule 5 on all parties, and all material produced must be made available for inspection, copying, testing or sampling
by all parties.

Tenn. R. Civ. P. 45.02 also provides that a subpoena may specify the form or forms in which electronically stored information is to be provided.

Tenn. R. Civ. P. 45.04 addresses deposition subpoenas and says: (1) A subpoena for taking depositions may be issued by the clerk of the court in which the action is pending. A subpoena for taking depositions may be served at any place within the state. If the subpoena commands the person to whom it is directed to produce designated books, papers, documents, electronically stored information, or tangible things which constitute or contain evidence relating to any of the matters within the scope of the examination permitted by Rule 26.02, the subpoena will be subject to the provisions of Rules 30.02, 37.02, 45.02, and 45.07. A deposition subpoena for testimony or subpoena for production of documentary evidence also must state in prominently displayed, bold-faced text:
“The failure to serve an objection to this subpoena within twenty-one days after the day of service of the subpoena waives all objections to the subpoena, except the right to seek the reasonable cost for producing books, papers, documents, electronically stored information, or tangible things.”

Tenn. R. Civ. P. 45.07 gives certain persons subject to the subpoena certain protections, and states how and when the protections may be invoked. The newly amended rule includes the following provisions: (1) A party or attorney responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on a non-party witness subject to the subpoena and shall provide the non-party witness at least twenty-one (21) days after service of the subpoena to respond, absent agreement of the non-party witness or a court order. (2) A non-party witness commanded to give deposition testimony or to produce documents or tangible things or to permit inspection shall serve on the party or attorney designated in the subpoena a written objection, if any, to having to give testimony or to inspecting, copying, testing or sampling any or all of the materials or to inspecting the premises, or to producing electronically stored information in the form or forms requested. Such objection must be served on the party or attorney designated in the subpoena within twenty-one days after the subpoena is served.

(3) At any time, on notice to the commanded person, the serving party may move the issuing court for an order compelling testimony, production or inspection.

Rule 45.08 informs the person subject to the subpoena how they are to respond. They must produce requested documents as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the demand.32 Unless otherwise stated in the subpoena electronically stored information must be produced in the form or forms in which the person ordinarily maintains it, or in a form or forms that are reasonably usable.33 When information subject to discovery is withheld claiming it is privileged or subject to a work product protection, the claim must be made expressly and must be supported by a description of the nature of the documents, communications or things not produced that is sufficient to enable the demanding party to contest the claim.34

Practice Point: With the advent of e-records becoming the order of the day, some thought ought to be given to subpoenaing records in an electronic format as opposed to a paper format. It would seem this would cut down considerably on copying expense, mailing expense and the “clutter” found in many lawyers’ offices. After all, HIPAA now requires covered entities that manage PHI via electronic health records to make records available to patients in an electronic format if requested.

12. Requirement that Pre-suit Notice Letter in Health Care Liability Actions Include HIPAA Compliant Medical Authorization, T.C.A. § 29-26-121. Prior to filing a health care liability action, the person asserting the potential claim or such person’s authorized agent must give each health care provider who will be a named defendant at least sixty (60) days prior notice. 35 In order for this notice to be valid, one of the requirements is that it must include a HIPAA compliant authorization permitting the recipient of the notice to obtain complete medical records from all other health care providers receiving pre-suit notice.36

All potential parties to a health care liability action are entitled to a complete copy of the claimant/patient’s medical records from any other provider receiving pre-suit notice. Each provider receiving pre-suit notice is entitled to such other provider’s records within thirty (30) days of the latter’s receipt of a request and a copy of the HIPAA complaint authorization. T.C.A. § 29-26-121(a). The provider receiving the request and accompanying HIPAA compliant authorization may comply with T.C.A. § 29-26-121 by (1) mailing a copy of the requested portions of the records with a statement of the cost of duplication of the records to the requesting provider; or (2) informing the requesting provider that the records will be mailed only upon advance payment for the records for the stated cost of the records calculated as provided in T.C.A. § 63-2-102; provided, the request for advance payment is made in writing within twenty (20) days after receipt of the request for medical records. T.C.A. § 29-26-121(d)(1)(B). Upon payment of the advance costs, the provider must send the records in three (3) business days. The records received under this section shall be treated as  confidential to be used only by the parties, their counsel and their consultants.

T.C.A. § 29-26-121(d)(2).
In Stevens ex rel. Stevens v. Hickman Cmty. Health Care Servs., Inc., 418 S.W.3d 547, 558 (Tenn. 2013) it was held that “Because Tenn. Code Ann. § 29– 26–121(a)(2)(E) is not inconsistent with Tennessee law regarding the implied covenant of confidentiality in doctor-patient relationships as recognized in Givens and Alsip, this implied covenant does not excuse plaintiff's failure to comply with the statutory requirement.” The Court declined to extend Alsip, finding that the defendant was only entitled to records “relevant to the subject matter involved in the pending action” despite the statutory language of Tenn. Code Ann. §29-26- 121(a)(2)(E) requiring the plaintiff to provide an authorization to obtain “complete medical records.” Id. at 558.

In Stevens the Court went on to hold that a plaintiff must substantially comply, rather than strictly comply, with the requirements of Tenn. Code Ann. § 29–26–121(a)(2)(E), noting that less-than-perfect compliance with the statute should not derail a health care liability claim. Id. at 555. The errors and omissions in the medical authorization included with the pre-suit notice letter in Stevens were numerous and significant, such that the defendants were not authorized to receive any of the plaintiff’s medical records. As a result of these multiple errors, the Court found that the plaintiff had failed to substantially comply with the requirements of Tenn. Code Ann. § 29–26–121(a)(2)(E). Id. at 556.

Practice Point: Failure to substantially comply with the pre-suit notice requirements of T.C.A. § 29-26-121 makes the lawsuit subject to dismissal. The court can only excuse substantial compliance with this section for “extraordinary cause”. Consequently, the party giving pre-suit notice should make absolutely certain the authorization that is included is truly HIPAA compliant, is signed by the proper person and is directed to all other providers receiving pre-suit notice. Foreinstance, in the case of a wrongful death action, review the applicable HIPAA rule to make sure the person signing the authorization is an eligible person to do so under HIPAA. See also, T.C.A. § 63-2-101(b)(3).

13. Ex Parte Communications in Health Care Liability Actions Upon Court Order.
During the 2012 legislative session, T.C.A. § 29-26-121 of the Health Care Liability Act was amended to add a subpart (f), which allowed the defendants in such actions to have ex parte communications with treating health care providers. During the 2013 legislative session, the Tennessee General Assembly amended T.C.A. § 29-26-121(f)(1)(c) by deleting the subsection in its entirety and by substituting the following language:

(i) The qualified protective order shall expressly limit the dissemination of any protected health information to the litigation pending before the court and require the defendant or defendants who conducted the interview to return to the health care provider or destroy any protected health information obtained in the course of any such interview, including all copies, at the end of the litigation.
(ii) The qualified protective order shall expressly provide that participation in any such interview by a treating health care provider is voluntary.

The statue is being routinely challenged by counsel for health care liability action plaintiffs raising various grounds primarily relating to preemption by HIPAA. The statute has been upheld and enforced by both state and federal trial courts, but a number of courts have placed limitations or conditions on the ex parte communications. Challenges to the statute are just now making their way into the appellate courts.

Practice Point: Defense counsel seeking a qualified protective order under T.C.A. § 29-26-121(f) should make sure the language of their motion is consistent with the HIPAA requirements for “qualified protective orders” discussed infra. Counsel should also be mindful that such orders are being opposed by plaintiff’s counsel in certain instances on various grounds including the constitutionality of the statute and preemption by HIPAA. As yet, there has not been any definitive resolution of challenges to the statute.

14. Prerequisites to Admission of Medical Records into Evidence at Trial Under T.C.A. § 24-7-122
T.C.A. § 24-7-122 sets forth certain requirements to be followed before medical records can be admitted into evidence under that statute at trial. The statute provides as follows:

(a) As used in this section, “medical records” means all written clinical information that relates to the treatment of individuals, when the information is kept in an institution.
(b) Medical records or reproductions of medical records, when duly certified by their custodian, physician, physical therapist or chiropractor, need not be identified at the trial and may be used in any manner in which records identified at the trial by these persons could be used. The records shall be accompanied by a statement signed by the person containing the following information:
(1) The person has authority to certify the records;
(2) The copy is a true copy of all the records described in the subpoena; and
(3) The records were prepared by the personnel of the company acting under the control of the company, in the ordinary course of business.
(c) When records or reproductions of records are used at trial pursuant to this section, the party desiring to use the records or reproductions in evidence shall serve the opposing party with a copy of the records or reproductions not later than sixty (60) days before the trial, with notice that the records or reproductions may be offered in evidence, notwithstanding any other rules or statutes to the contrary.

Practice Point: It is unclear how T.C.A. § 24-7-122; T.C.A. § 68-11- 401, et seq; T.C.A. § 63-2-101 et seq; Tenn. R. Civ. P. 45; Tenn. R. Evid. 803(6) Records of Regularly Conducted Activity – Exception to Hearsay Rule; and Rule 902(11) Self-Authentication – Certified Records of Regularly Conducted Activity are to be reconciled. These statutes and rules have some degree of inconsistency between and among them unless you look at each as simply being one road to a common destination, namely the admission of hospital and medical records into evidence. However, no matter how you try to resolve conflicting provisions in these rules and statutes the safe and prudent thing to do is serve records you may use at trial with the required notice on the opposing party at least sixty (60) days before trial.

15. “Tennessee Patient Safety And Quality Improvement Act of 2011”, T.C.A. § 68-11-272.
a. Introduction:
In 1967, the Tennessee legislature passed the “Tennessee Peer Review Law”, codified at Tenn. Code Ann. § 63-6-219. This law protected information and findings of a “peer-review committee” from discovery. Tenn. Code Ann. § 63- 6-219(e). However, the law was ambiguous and sometimes contradictory. Courts had a difficult time interpreting the statute, noting that the statute contained syntax errors and irreconcilable differences. See Roy v. City of Harriman, 279 S.W.3d 296, 305 (Tenn. Ct. App. 2008). In 2010, two decisions of the Tennessee Supreme Court severely limited the scope of Tenn. Code Ann. § 63-6-219.37 Many records of health care providers thought to be protected by peer review privilege were in fact not protected under T.C.A. § 63-6-219.
b. Repeal of Tenn. Code Ann. § 63-6-219 and Enactment of the “Tennessee Patient Safety and Quality Improvement Act of 2011”:

On April 12, 2011, in apparent response to the Court’s decisions in Beecher and Powell, the Tennessee legislature repealed Tenn. Code Ann. § 63- 6-219 and passed the “Tennessee Patient Safety and Quality Improvement Act of 2011,” codified at Tenn. Code Ann. § 68-11-272 (2011). Section 68-11-272 has significant differences from the law it replaced. First, it never uses the language “peer-review.” Instead, committees are termed “Quality Improvement Committees.” Second, the purpose is stated distinctively different than the limited purpose as stated in § 63-6-219(b). The new statute states the purpose as, “… to encourage the improvement of patient safety, the quality of patient care and the evaluation of the quality, safety, cost, processes and necessity of health care services by hospitals, health care facilities and health care providers.”

Tenn. Code Ann. § 68-11-272(a). Both of these differences are significant because the court in Beecher based its holding that a peer review proceeding only applied to a “physician’s professional conduct, competence, or ability to practice medicine” on the fact that the legislature used the term “peer” review and that § 63-6-219(b) only referred to a “physician’s professional conduct, competence, or ability to practice medicine.” With these differences, the legislature cleared up the ambiguities that were present between § 63-6-219(b) and § 63-6-219(c) in a very different way than did the Court.

The “Tennessee Patient Safety and Quality Improvement Act’s privilege section reads:
Records of a Quality Improvement Committee (QIC) and testimony or statements by a health care organization's officers, directors, trustees, health care providers, administrative staff, employees or other committee members or attendees relating to activities of the QIC shall be confidential and privileged and shall be protected from direct or indirect means of discovery…

Tenn. Code Ann. § 68-11-272(c)(1). The statute defines \"Records\" as “all reports, incident reports, statements…and any and all other documentation generated by or in connection with activities of a QIC...” Tenn. Code Ann. § 68- 11-272(b)(5). In order for the records to be protected by § 68-11-272(c)(1), they must have been “generated by or in connection with the activities of a QIC.” Under the statute, there are two basic requirements for a committee or individual to meet the definition of a QIC. First, the committee must have been either formed or retained by a health care organization or it must be one or more individuals employed by the health care organization. Tenn. Code Ann. § 68-11- 272(b)(4). Second, at least one of the purposes of the committee or individual must be to evaluate the “safety, quality, processes, costs, appropriateness or necessity of health care services…” Id. The statute provides a non-exclusive list of functions that meet the purpose of evaluating the “safety, quality, processes, costs, appropriateness or necessity of health care services.” One such function is “the evaluation of reports made pursuant to § 68-11-211 and any internal reports related thereto or in the course of a health care organization's patient safety and risk management activities.” Tenn. Code Ann. § 68-11-272(b)(4)(N).

The new law specifically includes “incident reports” in the definition of “records”. § 68-11-272(b)(5). It also includes filling out incident reports as a function of a QIC. § 68-11-272(b)(4)(N). The Powell court said that incident reports were not protected when the definition of a “peer-review” proceeding was very narrow. The legislature has significantly broadened the scope of the privilege and has specifically included incident reports.

B. Parental Access.
In Tennessee, parents are the joint natural guardians of their minor children and are equally and jointly charged with their care, nurture, welfare, education and support. T.C.A. § 34-1-102. In Tennessee, these responsibilities of the parent for an unemancipated minor child continue until the child reaches the age of majority which is eighteen (18) years of age. T.C.A. § 1-3-105(1); T.C.A. § 1-3-113(a). Thus, parents generally should have access to their unemancipated minor child’s records until they reach the age of majority (18 years of age). However, there are instances in which an unemancipated minor child is statutorily entitled to obtain medical care or services without parental knowledge, notification or consent. At the federal level, Title X of the Public Health Services Act provides confidentiality to teenagers seeking family planning services. Unemancipated minors are entitled by statute in certain instances to consent without parental knowledge to a range of sensitive health services in Tennessee, including, but not limited to, the following:
(a) Contraceptives supplies and information;38
(b) Prenatal treatment;39
(c) Drug abuse treatment.40

A study which appeared in a 1999 issue of the Journal of the American Medical Association (JAMA) showed a significant number of teenagers had decided not to seek health care that they thought they needed due to confidentiality concerns. A 2002 JAMA study found that almost half of sexually active teens visiting a family planning clinic would stop using the services furnished by the clinic if their parents were notified they were seeking birth control. The issue stemming from all this is whether the confidential access of unemancipated minors to certain health care services also means that the parents who become aware of it should be denied access to information or records concerning the services which their unemancipated minor child has received. Unfortunately, there is no definitive federal law on this issue and this issue has not been dealt with directly by either the Tennessee General Assembly or our state courts.41 Proponents of denying the parents access to this information cite that the purpose of the laws allowing minors to seek certain services related to matters like reproductive health without requiring parental consent, knowledge or notification would be frustrated if the parents could obtain access to such confidential information. On the other hand, Tennessee has a strong policy favoring parental rights. Decker v. Carroll Academy, 199 WL 332705 (Tenn. Ct. App. 1999) (application for permission to appeal to the Supreme Court not sought). Absent definitive federal and/or state law on the point, medical records requested by parents concerning their unemancipated minor children in areas where the minor has a statutory right of consent because of the sensitivity of such care must be looked at carefully and on a case by case basis.

T.C.A. §§ 36-6-101, 36-6-103 and 36-6-110 govern a parent’s access to a minor child’s medical records in a domestic relations proceeding or situation.

T.C.A. § 36-6-101(a)(3)(A)(b) provides:
Except when the Court finds it not to be in the best interest of the affected child, each order pertaining to the custody or possession of a child arising from an action for absolute divorce, divorce from bed and board or annulment shall grant to each parent the rights listed in subdivisions (a)(3)(A)(i)-(iv) during periods when the child is not in that parent’s possession or shall incorporate such rights by reference to a prior order. Other orders pertaining to custody or possession of a child must contain the rights listed in subdivisions (a)(3)(A)(i)-(iv), which were recently amended with an effective date of July 1, 2014.42

(A) The referenced rights are as follows:
(v) Unless otherwise provided by law, the right to receive copies of the child's medical, health or other treatment records directly from the treating physician or healthcare provider. Upon request from one parent, the parent who has arranged for such treatment or health care shall provide to the other parent the name, address, telephone number and other contact information of the physician or healthcare provider.

The keeper of the records may require a written request including a current mailing address and may further require payment of the reasonable costs of duplicating such records. No person who receives the mailing address of a requesting parent as a result of this requirement shall provide such address to the other parent or a third person; T.C.A. § 36-6-101(a)(3)(B) does permit the Court to deny a parent access, in whole or in part, to medical records when such denial of medical records is in the best interest of the child.

T.C.A. § 36-6-103(a)(1) states: A copy of a child’s medical records shall be furnished by the treating physician or treating hospital upon a written request by any of the following:
(A) The non-custodial parent;
(B) In the case of parents having joint custody of a child, the parent with whom the child is not residing; or
(C) In case of a child in custody of a legal guardian, then either parent.

The statute further provides that the requesting party shall provide his or her current address to the treating physician or treating hospital. Once a treating physician or hospital has received a request, the treating physician or hospital shall send a copy of the medical record to the requesting party unless furnished with a court order closing the records.

T.C.A. § 36-6-110 addresses the rights of a non-custodial, biological parent. The statute provides:
Except when the Juvenile Court or other appropriate court
finds it is not in the best interest of the affected child, upon
petition by a non-custodial, biological parent whose parental
rights have not been terminated, the Court shall grant the
rights set forth in § 36-6-101(a)(3)(A).

There is also a Tennessee Attorney General’s opinion dealing with the issue of a release of a minor’s medical records. Specifically, the Tennessee Attorney General was asked if the release of a minor’s medical records is permitted pursuant to T.C.A. § 36-6-101, 103, and 110 if the release is to a parent defined as “abusive” in T.C.A. § 36-6-101(4). The Attorney General’s opinion noted that under all three statutes cited above, a request for medical records can always be denied when such a release of medical records is not in the best interest of the child. The Attorney General observed that although the statutes do not specifically contain language which would prohibit a parent who has committed abuse from obtaining a child’s medical records, it is likely that such a restriction would be in the child’s best interest.

C. Patient Authorization and Minimum Necessary Standards (HIPAA Compliant Authorizations)
Generally, a covered entity must obtain the individual’s written authorization for any use or disclosure of protected health information that is not necessary for treatment, payment, health care operations and otherwise permitted or required by the HIPAA Privacy Rule. A covered entity may not condition treatment, payment, enrollment or benefits eligibility on an individual granting an authorization except in limited circumstances. An authorization must be written in specific terms. It may allow use and disclosure of protected health information by the covered entity seeking the authorization or by a third-party. All authorizations must be in plain language and contain specific information regarding the information to be disclosed or used, the person or persons disclosing and receiving the information, expiration, right to revoke in writing, and other data. When psychotherapy notes are sought a separate authorization related solely to use and disclosure of those records should be used.

A checklist for a HIPAA Compliant Authorization and a sample authorization are provided in the Appendix.

D. Legal Process Request
Medical records are often obtained by a form of legal process known as a subpoena duces tecum. This is a process by which the involved Court, at the instance of one of the litigants, commands a witness who has in his or her possession or control certain documents or papers pertinent to the issues in the pending controversy to produce them either for a deposition or a trial. This is permissible under both Tennessee law and federal law provided certain requirements have been met.

As relates to Tennessee law, we have previously discussed those requirements. As relate to federal law, the HIPAA Privacy Rule set forth in 45 CFR § 164.512(e) permits disclosure for judicial and administrative proceedings of protected health information in response to a subpoena, discovery request or other lawful process even though it is not accompanied by an order of the court or administrative tribunal if the covered entity receives either (1) “satisfactory assurance” from the parties seeking the information that reasonable efforts have been made by such party to insure that the person who is the subject of the protected health information that has been requested has been given notice of the request; or (2) the covered entity receives “satisfactory assurance” that reasonable efforts have been made by the requesting party to secure a qualified protective order.

“Satisfactory Assurance” regarding notice to the patient means:
(1) The covered entity must receive a written statement from the party requesting the protected health information and accompanying documentation demonstrating that (1) the party requesting such information has made a good faith attempt to provide written notice to the individual (or, if the individual’s location is unknown, to mail a notice to the individual’s last known address);
(2) This notice must include sufficient information about the litigation or proceeding in which the protected information is requested to permit the individual to raise an objection to the court or tribunal; and
(3) The time for the individual to raise objections to the court or administrative tribunal has elapsed and no objections were filed or all objections had been resolved by the Court or the administrative tribunal and the disclosures being sought are consistent with such resolution.

“Satisfactory Assurance” as relates to reasonable efforts to obtain a qualified protective order means a written statement from the requesting party and documentation demonstrating that the parties to the dispute have agreed to a qualified protective order and have presented it to the Court or the requesting party has requested a qualified protective order from the Court.

The HIPAA Privacy Rule set forth in 45 CFR § 164.512(e) also permits disclosure of protected health information in response to an order of the Court or administrative tribunal. This order is referred to as a “qualified protective order” and must provide that:
(1) That the parties are prohibited from using or disclosing the protected health information for any purpose other than the litigation or proceeding for which such information was requested; and
(2) All of the protected health information obtained with the “qualified protective order” must be returned to the covered entity or destroyed at the end of the litigation or proceeding.

E. What to Release
The custodian of records who receives a request to release medical records pursuant to a properly executed authorization, subpoena or qualified protective order should first look carefully at the list of records requested and under no circumstances release records other than those expressly authorized by the authorization, subpoena or qualified protective order. Under HIPAA, covered entities and business associates when releasing information must take steps to ensure that the “minimum necessary information” is released to accomplish the intended purpose of the disclosure. In short, the first rule is under no circumstances should records other than those expressly asked for be released. Second, a category such as “all the patient’s medical records” or “all the patient’s hospital admissions” bears watching because certain categories of records cannot be disclosed unless there is a specific authorization allowing that category of records to be released or the patient affirmatively states he is aware the authorization covers that type of records. Foreinstance, records of patients who have participated in or received counseling or any other service from a federally assisted alcohol abuse program are discloseable only upon the patient’s specific consent to the disclosure of such records. 42 CFR Part 2. In Tennessee, certain statutory privileges exist which protect communications between certain health care providers and their patients including the following:
(1) T.C.A. § 63-11-213. Psychologist/Psychological Examiner- Client Privilege;
(2) T.C.A. § 24-1-207. Psychiatrist-Patient Privilege; and
(3) T.C.A. § 63-22-114. Professional Counselor/Marital and Family Therapist/Clinical Pastoral Therapist – Client Privilege.

Generally, information protected by statutory privilege should only be disclosed upon written waiver and properly executed authorization of the patient unless there is statutory exception to the privilege. Also, care should be undertaken not to release any information which is privileged or protected by the Tennessee Safety and Quality Improvement Act of 2011 (T.C.A. § 68-11-272) or which has been undertaken in anticipation of litigation. (i.e. legal papers relative to lawsuit or documents prepared by or at the request of the health care provider’s attorney or insurance company).

F. Examples of Things We Have Seen (or Heard About) – Things to Avoid.
1. Retaining a Rule 26 Expert who turns out to be a treating physician.

In medical malpractice litigation, defendant-health care providers will early on in the lawsuit retain experts to review the records of the defendant-health care provider in hopes that such retained expert will be able, after reviewing the records, to be supportive of the defendant-health care provider’s care and offer favorable opinions and testimony.

If it later turns out that your retained expert reviewer had at some time provided medical care to the plaintiff, both you and the expert have a problem. The person who you retained as your expert has a physician-patient relationship with the plaintiff which under Givens and Alsip creates a duty of confidentiality which has inadvertently been breached by your discussions with the physician of the patient’s condition.

Consequently, due diligence should be exercised by the defendant-health care provider’s attorney and the retained expert reviewer to make sure no physician-patient relationship has ever existed between the defendant’s retained expert reviewer and the plaintiff patient.

2. Be mindful that “medical records” may turn up in nontraditional places. For the longest, we have thought about medical records as being “the chart” or “the file” in the physician’s office or at the hospital. However, increasingly decisions concerning a patient’s health care are made via text messaging and email which often does not find its way into the patient’s permanent file. Consequently, in health care litigation, plaintiff’s counsel needs to be mindful of this and specifically request records in such nontraditional areas and counsel defending health care providers should at the outset request that your client check his or her text messages and emails for anything involving the patient’s care. Such entries may readily qualify as “medical records” under applicable law.

3. Be leery of requests for medical information on a patient from a government agency conducting an investigation when the agency is not clearly a health oversight agency. Foreinstance, it is extremely doubtful that a request made as part of an investigation by the State of Tennessee Department of Commerce and Insurance Division of Consumer Affairs based on a patient complaint would permit disclosure of protected health information of the patient without proper consent or other legal process authorized under the Privacy Rule of HIPAA. This does not mean you should ignore the request but by reply letter request that the government agency provide you with a signed HIPAA compliant authorization of the patient allowing the information to be provided or to point to you a specific provision in the law whereby the health care provider is obligated to furnish that information without the patient’s authorization.

4. Never confuse the service of a complaint and summons with
a subpoena for medical records.
We had an occasion when a summons and complaint which initiated a lawsuit against a health care provider was served upon one of the employees of the provider. The employee mistakenly thought the summons and complaint (which was required to be answered in writing within 30 days) was a subpoena for the patient’s medical records. The records were promptly sent to the attorney shown as representing the plaintiff-patient in the summons and the summons and complaint then placed in the medical records file without any response. After 30 days had expired, a Motion for Default Judgment for failure to timely answer was filed against the health care provider which although denied by the trial court caused several sleepless nights before a final resolution was reached.

1 Defendant McElwaney died during the course of the litigation and Mr. Ed Mullikin, as Administrator Ad Litem of the McElwaney estate was substituted as a party-defendant.
2 The holding in Overstreet was abrogated by T.C.A. §50-6-204(a)(1) which requires an employee to authorize direct communication.
3 T.C.A. § 68-11-1503(a)(1).
4 T.C.A. § 68-11-1503(c).
5 T.C.A. § 68-11-1504.
6 T.C.A. § 68-11-1503(d).
7 T.C.A. § 68-11-401(2)(A)
8 T.C.A. § 68-11-402(a)
9 T.C.A. § 68-11-402(b)
10 T.C.A. § 68-11-403
11 T.C.A. § 68-11-404(b)(1)
12 T.C.A. § 68-11-404(b)(2)
13 T.C.A. § 68-11-405(a)
14 T.C.A. § 68-11-405(b)
15 T.C.A. § 68-11-405(c)
16 T.C.A. § 68-11-406(a)
17 T.C.A. § 68-11-406(b)(1)
18 T.C.A. § 68-11-407
19 T.C.A. § 68-11-407(b)
20 T.C.A. § 63-2-101(a)(2)
21 T.C.A. § 63-2-101(c)(4)
22 T.C.A. § 63-2-102(a)
23 T.C.A. § 63-2-102(c)(1)
24 T.C.A. § 63-2-102(c)(2)
25 T.C.A. § 63-2-102(e)
26 T.C.A. § 50-6-204(a)(2)(A)
27 T.C.A. § 50-6-204(a)(2)(C)
28 T.C.A. § 50-6-204(a)(2)(A)
29 T.C.A. § 50-6-204(a)(1)(B)
30 T.C.A. § 50-6-20431 Provisions relating to the time within which an objection must be made to the subpoena were deleted from Rule 45.01, as they would not apply to a trial subpoena, and new provisions relating to such objections were added to Rules 45.04 and 45.07. See Advisory Commission Comment [2013].
32 Tenn. R. Civ. P. 45.08(1)(A).
33 Tenn. R. Civ. P. 45.08(1)(B).
34 Tenn. R. Civ. P. 45.08(2)(B)
35 T.C.A. § 29-26-121(a)(1).
36 T.C.A. § 29-26-121(a)(2).
37 Lee Medical, Inc. v. Beecher, 312 S.W.3d 515 (Tenn. 2010); Powell v. Community Health Systems, 312 S.W.3d 496 (Tenn. 2010).
38 T.C.A. § 68-34-107
39 T.C.A. § 63-6-223
40 T.C.A. § 63-6-220
41 The HIPAA privacy rule generally allows a parent to have access to the medical records of his or her minor child as such child’s personal representative. There are three exceptions to this, one of which is when the minor child is the one who consents to care and the consent of the parent is not required under applicable law. Even then HIPAA recognizes the parent may be entitled to access if applicable State law allows it.
42 2014 Tennessee Laws Pub. Ch. 617 (S.B. 1488)

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