Kelly on Malpractice

In Alsip v. Johnson City Medical Center, 197 S.W.3d 722 (Tenn.2006), the Supreme Court reviewed a trial court order that allowed defense counsel to have ex parte dialogue with the patient’s treating physicians. The court concluded that the trial court erred in entering the order that permitted defense counsel to have private conversations with the non-defendant physicians who treated the deceased during his last illness. Much of the Alsip derives from the Court’s declarations about the implied covenant of confidentiality. The Court recognized an implied covenant of confidentiality between a physician and patient in Givens v. Mulliken, 75 S.W.3d 383 (Tenn.2002). This covenant of confidentiality survives the death of the patient.

The issue in Alsip involved a trial court order. The issue in Givens involved subpoenas for medical records. It was whether a physician had a duty to keep a patient’s medical information confidential in the face of a “technically defective subpoena.” The Givens Court found no violation of the covenant in a physician’s response to such a subpoena. When the Court turned next to the subject of opposing counsel’s private conversations with a plaintiff’s physician, the tenor of the Court’s comments changed dramatically. A much different case is presented, however, with respect to whether the physician breached his implied covenant of confidentiality by informally speaking to members of the Richardson Firm about the plaintiff’s medical information. While the understanding of the parties giving rise to the implied covenant of confidentiality permits a physician to disclose information pursuant to subpoena or court order, this understanding does not include permission to divulge this information informally without the patient’s consent…. [W]e hold that a physician breaches his or her implied covenant of confidentiality by divulging medical information, without the patient’s consent, through informal conversations with others….we are not inclined to find that patients or physicians typically expect that the physician’s implied covenant of confidentiality contains an “informal interview” exception.

Certain rules are clear from Givens: (1) there is an implied covenant of confidentiality between a doctor and his or her patient unless there is a contrary understanding between them, (2) with respect to subpoenas, valid or defective, a physician does not breach that covenant when he or she responds to the subpoena, (3) a physician does not breach the covenant if he or she responds to a court order directing the physician to turn over medical records, (4) there is no privilege that bars a physician from testifying, or countenances a physician’s refusal to testify, in court or by deposition, (5) there are no exceptions to a physician’s statutory duty of confidentiality that permit disclosure of medical information in private conversations without the patient’s consent.

Notwithstanding these clear rules in Givens, the trial court in Alsip believed that the references to requests cloaked with the authority of the court, and the language pursuant to subpoena or court order, were sufficient authorization for a trial court to sign an order authorizing an opposing attorney to have private conversations with a plaintiff’s treating physicians. It seems clear that the trial court sought to resurrect the traditional practice of allowing defense counsel to speak informally to the plaintiff’s treating physician.

The Supreme Court disagreed. Even though the trial court in Alsip designed a thoughtful, limited-in-scope order, the order would result in a physician breaching his or her covenant of confidentiality with the patient. It countermanded the Court’s clear edict in Givens—“physicians, thou shalt not talk informally with another about your patient’s medical information lest ye violate your covenant of confidentiality with your patient in so doing.” Finally, the filing of a lawsuit does not constitute a waiver of the covenant of confidentiality. Once and for all, the days of defense counsel’s ex parte discussions with a plaintiff’s treating physician are over.

In Small v. Shelby County Schools, 2008 WL 360925 (Tenn.Ct.App.), plaintiffs brought a negligence claim against the school board pursuant to the Tennessee Governmental Tort Liability Act. The plaintiff, a student at Millington Middle School, began experiencing breathing problems after physical education class. The physical education teacher was unaware of the student’s asthma, or the fact that the student was mentally retarded. The mother came to school and picked up her son, who was later taken to Le Bonheur Children’s Medical Center in Memphis, where he remained for six months. The mother then brought a negligence claim on behalf of her son against the school board. During discovery, the student’s attorney failed to disclose the student’s treating doctor as an expert witness. The school board sought to exclude testimony from the doctor concerning causation of the student’s injuries and the reasonableness and/or necessity of the medical charges. The school board argued that the court erred by allowing the doctor to testify concerning causation and necessity because the student’s attorney failed to disclose the doctor as an expert witness. The plaintiff argued, on the other hand, that Dr. Barnes testified in the capacity of a treating physician. Therefore, they did not have to disclose him as an expert witness.

The Court of Appeals reviewed the applicable discovery law as landscape for the issue. “[D]iscovery should enable the parties and the courts to seek the truth so that disputes will be decided by facts rather than by legal maneuvering.” White v. Vanderbilt University, 21 S.W.3d 215, 223 (Tenn.Ct.App.1999). Rule 26.02(4) of the Tennessee Rules of Civil Procedure provides for the following discovery concerning expert witnesses:

(4) Trial Preparation: Experts. Discovery of facts known and opinions held by experts, otherwise discoverable under the provisions of subdivision (1) of this rule and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows:
(A)(i) A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.
(emphasis added). Parties also have a duty to supplement their answers as follows:
(1) A party is under a duty seasonably to supplement the party’s response with respect to any question directly addressed to (A) the identity and location of persons having knowledge of discoverable matters, and (B) the identity of each person expected to be called as an expert witness at trial, the subject matter on which the person is expected to testify, and the substance of that testimony. Tenn. R. Civ. P. 26.05.

The rules of discovery allow for the parties to narrow the issues in order to avoid “trial by ambush.” Austin v. City of Memphis, 684 S.W.2d 624, 632 (Tenn.Ct.App.1984). Trial courts have the authority, in certain circumstances, to exclude the testimony of an expert witness when that party failed to name the witness during discovery. Mercer v. Vanderbilt University, Inc., 134 S.W.3d 121, 137 (Tenn.2004); see also Lyle v. Exxon Corp., 746 S.W.2d 694, 699 (Tenn.1988). On the other hand, parties do not have a duty to name an expert witness, as required by Rule 26 of the Tennessee Rules of Civil Procedure, if that witness acquired the information as “an actor or viewer in regard to the occurrence,” and did not acquire the information in preparation for trial. Alessio v. Crook, 633 S.W.2d 770, 779 (Tenn.Ct.App.1982). In Alessio, the plaintiffs argued that the defendant failed to supplement answers to interrogatories concerning the testimony of an expert witness. Id. at 778-79. The Middle Section of this Court held that the witness in dispute, the treating surgeon, gathered his information ” ‘because he was an actor or viewer with respect to transactions or occurrences’ that were the ’subject matter of the lawsuit.’ ” Id. at 780. Thus, the witness should be treated as an ordinary witness, and not as an expert witness subject to the disclosure requirement of Rule 26. Id. at 779. Subsequently, the Eastern Section of this Court addressed a similar issue in Buckner v. Hassell, 44 S.W.3d 78 (Tenn.Ct.App.2000). In Buckner, the plaintiff failed to disclose a witness, her treating physician, as an expert. The plaintiff then tried to elicit testimony from this witness concerning the standard of care for dermatologists. Id. at 81. Distinguishing the case from the Alessio decision, the Eastern Section found that although the witness was one of the plaintiff’s treating physicians, “the substance of the excluded testimony involved matters outside [the doctor’s] mere treatment of [the plaintiff].” Id. at 84. Unlike the witness in Alessio, the witness in Buckner obtained his information relating to the applicable standard of care from his own “expertise and experience,” and not from just participating in the treatment of the plaintiff. Id. Thus, the Court found that this testimony concerning the standard of care rendered this witness an expert under the Tennessee Rules of Civil Procedure. Id.

The Board argued that this case is more akin to the Buckner decision, because the deposition testimony of Dr. Barnes concerning causation, reasonableness, and necessity of the medical charges was drawn from his expertise and experience, and not as an actor or viewer in Small’s treatment. The Court of Appeals disagreed. In Buckner, the witness in question clearly did not obtain his knowledge of the applicable standard of care by treating the plaintiff. But in this case, Small’s attorney sought to introduce testimony concerning the cause of Small’s injuries, not the standard of care, as this is not a medical malpractice case. The Court found that the substance of Dr. Barnes’ testimony did not involve matters outside the treatment of Small; rather, information related to the cause of Small’s injuries came from his involvement with the treatment. This case is more in line with Heath v. Memphis Radiological Professional Corp., 79 S .W.3d 550 (Tenn.Ct.App.2001). In this post Alessio and Buckner case, the Court addressed the same issue of whether the testimony of a witness should be excluded because the defendants failed to supplement their answers to interrogatories, naming the witness as an expert. Id. at 559. The witness was one of the plaintiff’s treating physicians who the plaintiff previously listed as a person with knowledge of the facts. Id. The Court applied Alessio and held that the witness acquired his knowledge through the plaintiff’s treatment and thus, could testify as an ordinary witness. Id. Likewise in this case, the Court of Appeals believed Alessio was on point and held that Dr. Barnes obtained his knowledge and information concerning Small’s injuries through the treatment of Small. Thus, the trial court did not err by considering the deposition testimony of Dr. Barnes.

The lesson from this case applies to proving causation and medical expenses in medical malpractice cases as well. Plaintiff’s counsel need not submit a Rule 26 report for a treating physician who will testify about (1) the cause of the injury and (2) the reasonable and necessity of medical expenses.