Day on Torts - New Post: Defense Claims Counsel Interfered With Ex Parte Interviews of Health Care Providers

Defense Claims Counsel Interfered With Ex Parte Interviews of Health Care Providers

Posted: 22 Jan 2020 07:01 AM PST

An order awarding sanctions to defendants after plaintiffs sent a letter to healthcare providers allegedly interfering with ex parte interviews between defense counsel and the deceased’s patients former healthcare providers was not appealable as a final order.

In Ibsen v. Summit View of Farragut, LLC, No. E2018-01249-COA-R3-CV (Tenn. Ct. App. Dec. 11, 2019), plaintiffs brought an HCLA suit against defendants based on the care provided to a now-deceased patient. Defendants “filed a motion for a qualified protective order allowing them to conduct ex parte interviews with a list of [the deceased’s] treating healthcare providers pursuant to Tenn. Code Ann. § 29-26-121(f).” The trial court granted the motion and informed plaintiffs’ counsel that he could “contact the doctors and explain[] to them that this order is voluntary,” but that he could not “contact them and tell them not to participate” or otherwise “interfere with the Defendants’ rights to conduct these interviews[.]”

Defendants later filed a motion for sanctions against plaintiffs “asserting that six letters sent by plaintiffs’ counsel to [the deceased’s] treating healthcare providers violated the Court’s order by attempting to keep the health care providers from taking part in the interviews.”* The trial court agreed that the letters violated the order, and it entered an order imposing sanctions against plaintiffs, including having to pay costs and expenses for defendants related to preparing for and deposing the providers. “The trial court also ordered plaintiffs’ counsel to send a retraction letter to all of the treating healthcare providers he had contacted…” Plaintiffs then sought to appeal this case under Tenn. R. App. P. 3, but the Court of Appeals determined that there was no basis for appeal under that rule.

Tenn. R. App. P. 3 allows for appeals of final judgments and specifically states that “any order that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties is not enforceable or appealable…” Plaintiffs argued that the order imposing sanctions was appealable because it “imposes penalties that necessitate a finding of criminal contempt,” but the Court of Appeals rejected this argument. The Court noted that criminal contempt is usually punished by “confinement for a definite term,” and that its purpose was to “restore the dignity and authority of the court.” (internal citations here). The Court found that none of those qualities were present in the order at issue here, as the order only “imposed monetary sanctions and required the plaintiffs’ attorney to write a letter of retraction,” and that the trial court “expressly referred to the order as one governing discovery rights.”

Plaintiff also argued that “this appeal [was] proper under the collateral order doctrine,” but the Court pointed out that “the only Tennessee cases cited by the plaintiffs that apply the collateral order doctrine are federal civil rights claims.”

Having rejected both of plaintiffs’ arguments, the Court held that the case was not appealable under Rule 3. Instead, the appeal of the order imposing sanctions should have been filed as an extraordinary appeal under Tenn. R. App. P. 10.

*The Court said the following portions of the letters as quoted by the defendants in their motion include the following:
—– “WE BELIEVE IF YOU GRANT THIS INTERVIEW YOU WILL VIOLATE HIPAA AND
THE COVENANT OF CONFIDENTIALITY YOU OWE TO YOUR PATIENT AND HER ESTATE.”

—– “If you violate HIPAA, we believe no Tennessee Court Order can excuse such a violation . . . .”

—– “I urge you in the strongest terms possible not to do so [participate in the interview].”

—– Reference to the possibility of “pursuing legal remedies against you for an illegal interview.”

Hmmm.