Anthony Huber, Belmont Law, Class of 2021

Last week, on February 28, in the case Willeford v. Klepper, the Tennessee Supreme Court (“Court”) found that a statutory provision in Tennessee Code Annotated section 29-26-121(f) violated the separation of powers clause in the Tennessee Constitution. The provision struck down by the Court allowed defense counsel to conduct ex parte interviews with patients’ non-party treating healthcare providers during the course of discovery in a healthcare liability lawsuit.

Section (f)(1) of the statute provided:

Upon the filing of any “healthcare liability action,” . . . the named defendant or defendants may petition the court for a qualified protective order allowing the defendant or defendants and their attorneys the right to obtain protected health information during interviews, outside the presence of claimant or claimant’s counsel, with the relevant patient’s treating “healthcare providers,” . . . .  Such petition shall be granted under the following conditions[.]

(Emphasis added.)  The plaintiff in the case argued that the statutory provision was unconstitutional because it deprived trial courts of their inherent authority over court proceedings.  In effect, the provision mandated that trial courts must issue qualified protective orders to allow defendants to conduct ex parte interviews with claimants’ treating healthcare providers.

The Court reasoned that legislative enactment which removes the discretion of a trial judge to make determinations of logical or legal relevancy “impairs the independent operation of the judicial branch of government.”  The Court reasoned that a trial court’s discretion to grant or deny discovery requests goes straight to the heart of the judicial function.  The Court concluded that the provision, as constructed, violated the separation of powers clause of the Tennessee Constitution because it divested trial courts of their inherent discretion over discovery.

However, the court noted that the overriding purpose of the statute was within the purview of the legislature and a small portion of the statute could be elided to keep with the expressed intent of the legislature.  The Court determined that the phrase “[s]uch petition shall be granted under the following conditions” could be elided to make the provision permissive rather than mandatory on trial courts.

While the effect of this opinion remains to be determined in practice, we now know that a trial judge will have discretion over whether he/she should grant a Qualified Protective Order (“QPO”) in a case.  Perhaps trial judges will be reluctant to grant QPO’s – perhaps not.  After this decision, we will not have to wait long to find out.

Opinion:          http://www.tsc.state.tn.us/sites/default/files/willeford.rhonda.opn_.pdf