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Wednesday, April 1, 2020

Tennessee woman wins appeal of order allowing ex parte interviews in wrongful death suit

State Court

By Juliette Fairley | Mar 17, 2020

Tennesseesupremecourt
The Tennessee Supreme Court | Wikimedia Commons/Thomas R. Machnitzki/https://creativecommons.org/licenses/by/3.0/deed.en

NASHVILLE, Tenn. (Legal Newsline) – An Overton County, Tennessee, trial court’s order allowing the defendants in a wrongful death lawsuit to interview non-party health care providers without the presence of plaintiff’s attorney was overturned by the Tennessee Supreme Court.

Plaintiff Rhonda Willeford’s counsel challenged Tennessee Code Annotated Section 29-26-121(f), arguing that the provision to protect defendants, enacted by the state Legislature, not only undermines the trial court’s power but also violates the Tennessee Constitution’s separation of powers, according to the Supreme Court's ruling.

“We hold that Section 29-26-121(f) is unconstitutional as enacted, to the limited extent that it divests trial courts of their inherent discretion over discovery,” wrote Tennessee Supreme Court Chief Justice Jeffrey Bivins in the Feb. 28 opinion. “We also conclude that the statute can be elided to make it permissive and not mandatory upon trial courts. As such, we hold that the elided statute is constitutional.”

Tennessee Code Annotated section 29-26-121(f) permits opposing counsel ex-parte access to a patients’ treating physicians during the litigation of a plaintiff’s health care liability lawsuit, such as in the case of Willeford v. Dr. Timothy P. Klepper, et al.

Willeford sued Dr. Timothy P. Klepper; Overton Surgical Services, assumed name of Algood Medical Clinic, doing business as AMG-Livingston LLC; and Livingston Regional Hospital LLC, doing business as Livingston Regional Hospital, for wrongful death, alleging they were negligent in treating her now-deceased mother Jewel Margaret Colson.

Although Overton County Judge Jonathan L. Young granted the defendants a protective order in the case, he stated in open court that he did not like Tennessee Code Annotated Section 29-26-121(f), according to Bivins' ruling.

“Anytime that the legislature says the court shall do something, I think that’s an overstepping of their bounds,” Young said.

The Tennessee Supreme Court settled Willeford’s appeal by vacating the protective order and remanding it to the Circuit Court for Overton County.

“We vacate the trial court’s qualified protective order entered in this case and remand the case to the trial court for reconsideration based on the guidance set forth in this opinion,” Bivins wrote.

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