Cheryl Hall v. James H. Crenshaw, M.D., The Jackson Clinic Professional Association

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
February 20, 2014 Session
CHERYL HALL, SURVIVING SPOUSE AND NEXT OF KIN OF MARK
LAMAR HALL, JR., DECEASED
v.
JAMES H. CRENSHAW, M.D., THE JACKSON CLINIC
PROFESSIONAL ASSOCIATION, KEITH ADKINS, M.D., S.
PATRICK WHALEN, VANDERBILT HEART AND VASCULAR
INSTITUTE, VANDERBILT SCHOOL OF MEDICINE,
VANDERBILT UNIVERSITY a/k/a VANDERBILT UNIVERSITY
MEDICAL CENTER
Appeal from the Circuit Court of Madison County
No. C-11-134 Donald H. Allen, Judge
No. W2013-00662-COA-R9-CV - Filed July 18, 2014
This interlocutory appeal involves ex parte communications between defense counsel for
a defendant medical entity and non-party physicians who treated the plaintiff’s decedent and
are employed by the defendant medical entity. The plaintiff filed this healthcare liability
action against the defendant medical entity arising out of treatment of the plaintiff’s
decedent. The trial court held that the attorneys for the defendant medical entity are barred
under Alsip v. Johnson City Medical Center, 197 S.W.3d 722 (Tenn. 2006), from conferring
ex parte with treating physicians employed by the defendant medical entity who are not
named as defendants in the lawsuit. The defendant medical entity was granted permission
for this interlocutory appeal. We hold that the defendant medical entity has an independent
right to communicate privately with its employees, and this right is not abrogated by the
filing of the plaintiff’s healthcare liability lawsuit. Therefore, Alsip does not bar the medical
entity’s attorneys from communicating ex parte with physicians employed by the medical
entity about the physician employee’s medical treatment of the plaintiff’s decedent.
Accordingly, we reverse.
Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Circuit Court is Reversed
and Remanded
H OLLY M. K IRBY, J., delivered the opinion of the Court, in which J. S TEVEN S TAFFORD, J.,
and J OHN E VERETT W ILLIAMS, S P. J., joined.
Marty R. Phillips and Ashley D. Cleek, Jackson, Tennessee, for Defendant/Appellants James
H. Crenshaw, M.D. and The Jackson Clinic Professional Association
Lee J. Chase, Memphis, Tennessee, for Plaintiff/Appellee Cheryl Hall, surviving spouse of
Mark Emmett Lamar Hall, Jr.
OPINION
F ACTS AND P ROCEEDINGS B ELOW
The facts pertinent to this appeal are undisputed. The decedent in this lawsuit, Mark Emmett
Hall, Jr., was treated by healthcare professionals associated with Defendant/Appellant The
Jackson Clinic Professional Association (“Jackson Clinic”), a Tennessee for-profit
corporation located in Jackson, Tennessee, and by healthcare professionals associated with
Vanderbilt University in Nashville, Tennessee. Mr. Hall died on February 23, 2010.
In May 2011, Mr. Hall’s wife, Plaintiff/Appellee Cheryl Hall filed a healthcare liability
action in the Circuit Court of Madison County, Tennessee, against several defendant
healthcare providers, alleging the wrongful death of her husband. Among the defendants
named in the lawsuit are the Jackson Clinic and Defendant/Appellant James H. Crenshaw,
M.D., a physician with the Jackson Clinic.1
The complaint alleges: “The Defendants, physicians and their employers, under the doctrine
of respondeat superior and/or ostensible or apparent agency or agency in general and/or as
owners, agents, servants or employees, officers or directors, owed a duty of care to Mr. Hall”
and that “Defendants, physicians and their employees . . . deviated from the recognized
standard of professional practice. . . .” As to the Jackson Clinic, the complaint alleged:
The Jackson Clinic, Professional Association (a Tennessee for-profit
corporation) provides medical physician services to its patients through its
principals, owners, employees, servants, agents and/or contractors, including
1
Vanderbilt University and some healthcare providers associated with Vanderbilt are also named in the
lawsuit, but the claims against them are not at issue in this appeal.
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Dr. Crenshaw, who was at all times relevant hereto acting within the course
and scope of his employment and as its agent, servant and employee under the
doctrine of respondent superior and under the doctrine of apparent authority,
and/or agency. Therefore, The Jackson Clinic is vicariously liable for the
medical negligence of Dr. Crenshaw in regard to his care and treatment of his
patient, Mark Emmett Lamar Hall, Jr.
Jackson Clinic retained the law firm Rainey, Kizer, Reviere & Bell, P.L.C. (“Rainey Kizer”)
to represent its interests in the lawsuit. Discovery ensued.
In the course of discovery, Hall noticed the depositions of Jason Cherry, M.D., a Jackson
Clinic cardiologist who practices with Dr. Crenshaw, and William Mariencheck, M.D., a
Jackson Clinic pulmonologist and critical care specialist. Neither were named as a defendant
in the lawsuit, but both treated the decedent during the pertinent time frame. Drs. Cherry and
Mariencheck are shareholders and employees of the Jackson Clinic.
In short order, Rainey Kizer filed a motion asking the trial court for permission to meet ex
parte with Drs. Cherry and Mariencheck to discuss matters relevant to the case, including
their treatment of the decedent. Specifically, Rainey Kizer wanted to meet ex parte with the
two physicians prior to their depositions. The motion argued that Rainey Kizer, as the
attorneys for the Jackson Clinic, had an obligation to investigate before engaging in
discovery and that the Jackson Clinic would be “unfairly oppressed and burdened” by having
to engage in discovery without giving its attorneys the opportunity for such ex parte
communication with Drs. Cherry and Mariencheck. Hall objected, so the trial court
scheduled a hearing to resolve the dispute.
Prior to the hearing, in support of the motion, counsel for Jackson Clinic filed affidavits by
Drs. Cherry and Mariencheck. Both said that they wanted Rainey Kizer to represent them in
the lawsuit, and that they specifically wanted the law firm to represent them in the upcoming
depositions. Each affidavit said: “I am currently a partner/shareholder in Defendant Jackson
Clinic P.A. and was also a partner/shareholder in Defendant Jackson Clinic, P.A. in 2010
when I provided medical care to Mark Emmett Hall, Jr. Any knowledge I have pertaining
to Plaintiff Mark Emmett Hall, Jr. or his medical care was obtained while I was acting in my
capacity as a physician and partner/shareholder in Defendant Jackson Clinic, P.A. ”
On December 20, 2012, the trial court held a hearing on this issue; the record does not
indicate what transpired at this hearing. Following the hearing, the trial court entered an
order denying the Jackson Clinic’s motion for permission to communicate ex parte with Drs.
Cherry and Mariencheck. The trial court reasoned that the two physicians are not individually
named as defendants, so they should be considered non-party treating physicians. Relying
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on Alsip v. Johnson Medical Center, 197 S.W.3d 722 (Tenn. 2006), the trial court denied
Rainey Kizer permission to have ex parte communications with them. The trial court added
that Drs. Mariencheck and Cherry could choose to have Rainey Kizer represent them at the
depositions, “if counsel believes it would be ethically permissible to do so.” Regardless, the
trial court held, the Rainey Kizer attorneys may not communicate ex parte “with the
‘nonparty treating physicians’ since they are not individually named parties to this lawsuit.”
Jackson Clinic filed a motion for permission to file an interlocutory appeal of the trial court’s
ruling pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure. Jackson Clinic
attached to the motion supplemental affidavits from Drs. Cherry and Mariencheck. Each
affidavit stated: “I . . . do hereby testify that in addition to being a partner and shareholder
of the Jackson Clinic Professional Association, I am also an employee of the clinic.” Both
the trial court and the appellate court granted permission for this appeal.
I SSUE ON A PPEAL AND S TANDARD OF R EVIEW
In this interlocutory appeal, Jackson Clinic presents the following issue:
Does Tennessee’s implied covenant of confidentiality prohibit the attorneys for
the Jackson Clinic P.A. from speaking with the Clinic’s own
physicians/owners/employees about the decedent and his medical treatment
when the Plaintiff is suing the Clinic (via its physicians/owners/employees) for
alleged medical malpractice?
The issue involves the application of law to undisputed facts. Consequently, the standard of
review is de novo; we accord no deference to the trial court’s ruling. Alsip v. Johnson City
Medical Center, 197 S.W.3d 722, 725 (Tenn. 2006); Nelson v. Wal-Mart Stores, Inc., 8
S.W.3d 625, 628-29 (Tenn. 1999).
A NALYSIS
On appeal, Jackson Clinic gives numerous reasons for its contention that the trial court’s
ruling is erroneous. First, it asserts that the trial court erred in relying on Alsip and its
predecessor, Givens v. Mullikin ex rel. Estate of McElwaney, 75 S.W.3d 383, 407-08 (Tenn.
2002). Alsip and Givens, it contends, “simply involved the manner of obtaining information
from non-interested third parties.” In contrast, in the case at bar, shareholder/employees must
be prepared for depositions in a lawsuit in which the Clinic, in which they have an ownership
interest, is sued. Jackson Clinic contends that prohibiting its counsel from talking with its
own employee agents to prepare for depositions is tantamount to denying the Jackson Clinic
effective representation.
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Jackson Clinic insists that the implied covenant of confidentiality does not apply in this case.
It argues that, because Drs. Cherry and Mariencheck are agents/owners/employees of the
Clinic, the knowledge they obtained while acting within the scope of their employment is
already imputed to the Clinic, and the Clinic is already deemed to know any confidential
information they know. Therefore, Jackson Clinic contends, if the Rainey Kizer attorneys
spoke to the physicians, there would be no breach of the implied covenant of confidentiality
because no new information would be shared.
Jackson Clinic also argues policy considerations. It notes that the implied covenant of
confidentiality is intended to protect private and potentially embarrassing information. Since
the Rainey Kizer attorneys are already privy to the Jackson Clinic medical records and other
confidential information, the Jackson Clinic maintains, the patient’s privacy interests would
not be harmed by permitting the Rainey Kizer attorneys to meet ex parte with Drs. Cherry
and Mariencheck. Forcing Drs. Cherry and Mariencheck to hire separate attorneys to
represent them would only result in further dissemination of the patient’s private information
and so would be counter to the policy concerns that underlie the implied covenant of
confidentiality.
In response, Hall insists that Tennessee statutes and caselaw prohibit the Rainey Kizer
attorneys from engaging in ex parte communications with Drs. Cherry and Mariencheck.
Because other means of discovery are available and will provide the same information, Hall
contends, the trial court correctly limited defense counsel’s communications and
representation of Drs. Cherry and Mariencheck to their formal depositions. In addition to
Givens and Alsip, Hall also cites Overstreet v. TRW Commercial Steering Division, et al.,
256 S.W.3d 626, 633-34 (Tenn. 2008), a worker’s compensation case, as demonstrating the
need to limit the attorneys’ discussions with a plaintiff’s treating physician to formal
discovery. Hall notes that the plaintiff in this case has not alleged that the Jackson Clinic
should be held liable for the actions of either Dr. Cherry or Dr. Mariencheck, and
consequently maintains that the treating physicians’ status as shareholder employees of the
named defendant medical group is irrelevant. Hall asserts that the knowledge of Drs. Cherry
and Mariencheck cannot be imputed to the Jackson Clinic because “they are fact witnesses
only and their conduct is not asserted to be a causative event of harm to the patient and would
not lead to a claim against the legal entity with whom they might be associated.”
A brief overview of Tennessee law regarding ex parte communications with health care
providers is in order.2 In 2002, the Tennessee Supreme Court rendered its decision in Givens
2
Our overview does not include an amendment to the pertinent statutes that does not apply in this case
because the complaint was filed prior to the effective date of the amendment, July 1, 2012. After the
(continued...)
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v. Mullikin ex rel. Estate of McElwaney, 75 S.W.3d 383 (Tenn. 2002). In that case, the
plaintiff filed a lawsuit against an insurance company, asserting that an attorney, hired by the
insurance company to defend one of its insured, committed several torts within the context
of his representation, thereby rendering the defendant insurance company vicariously liable
for the attorney’s actions. Givens, 75 S.W.3d at 390-91. The plaintiff alleged in part that the
attorney induced her treating physician to breach an implied contract of confidentiality with
her by speaking privately with the attorney outside of a formal discovery deposition. Id. at
392. In the course of its analysis, the Givens Court recognized an implied covenant of
confidentiality as part of the contract of treatment between the healthcare provider and the
patient:
Any time a doctor undertakes the treatment of a patient, and the consensual
relationship of physician and patient is established, two jural obligations (of
significance here) are simultaneously assumed by the doctor. Doctor and
patient enter into a simple contract, the patient hoping that he will be cured and
the doctor optimistically assuming that he will be compensated. As an implied
condition of that contract, this Court is of the opinion that the doctor warrants
that any confidential information gained through the relationship will not be
released without the patient’s permission . . . . Consequently, when a doctor
breaches his duty of secrecy, he is in violation of part of his obligations under
the contract.
Id. at 407 (quoting Hammond v. Aetna Cas. & Sur. Co., 243 F. Supp. 793, 801 (N.D. Ohio
1965)). Givens acknowledged that the healthcare provider cannot withhold the patient’s
confidential medical information in the face of a subpoena or other lawful discovery request
and held that there was no breach of the implied covenant from the healthcare provider’s
2
(...continued)
Tennessee Supreme Court decided Givens and Alsip, the General Assembly enacted Tennessee Code
Annotated § 29-26-121(f). Referred to by legal scholars as “the Givens Fix,” the statute permits defense
counsel to petition the court for a protective order allowing defendants and their attorneys to obtain protected
health information “during interviews, outside the presence of claimant or claimant’s counsel” from
plaintiff’s treating health care providers as defined by Tennessee Code Annotated § 29-26-101. Tenn. Code
Ann. § 29-26-121(f) (2013); Whitney Boshers Hayes, Physician-Patient Confidentiality in Health Care
Liability Actions: HIPAA’s Preemption of Ex Parte Interviews with Treating Physicians Though the Obstacle
Test, 44 U. Mem. L. Rev. 97, 106-07 (Fall 2013). Subsection (3) of the statute says that the statute may not
“be construed as restricting in any way the right of a defendant or defendant’s counsel from conducting
interviews outside the presence of claimant or claimant's counsel with the defendant’s own present or former
employees, partners, or owners concerning a healthcare liability action,” and so appears to assume the
existence of such a right but does not expressly create it. Tenn. Code Ann. § 29-26-121(f)(3).
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disclosure in response to such. Id. at 408. It sharply contrasted this, however, with a
healthcare provider’s private discussions with the attorney hired by the insurance company:
A much different case is presented, however, with respect to whether the
physician breached his implied covenant of confidentiality by informally
speaking to [the insurance company’s attorney] 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. Therefore, absent circumstances giving rise to a duty to warn
identifiable third persons against foreseeable risks emanating from a patient's
illness, we 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.
Id. at 408-09 (footnote and internal citation omitted). Thus, Givens held that the covenant
of confidentiality implied in the agreement between the patient and the healthcare provider
would be contravened by disclosure of the patient’s private medical information in the
context of a private conversation with a third party such as an attorney.
The holding in Givens was refined several years later in Alsip v. Johnson City Medical
Center, 197 S.W.3d 722 (Tenn. 2006). In Alsip, a healthcare liability action, the trial court
had entered a discovery order that specifically permitted ex parte communications between
defense counsel and the decedent’s non-party treating physicians; the plaintiffs were granted
permission for an interlocutory appeal. Alsip, 197 S.W.3d at 723. The Court posed the
question presented as whether public policy dictates “that the covenant of confidentiality
contained in the contract between patient and physician be voided by the filing of a medical
malpractice lawsuit with the consequence that a trial court may authorize defense counsel to
communicate ex parte with non-party physicians who treated the plaintiff for injuries
allegedly arising from the malpractice?” Id. at 727. It stated that the analysis required the
Court “to balance society’s legitimate desire for medical confidentiality against medical
malpractice defendants’ need for full disclosure of plaintiffs’ relevant health information.”
Id.
The Alsip Court emphasized that medical confidentiality arose from both the patient’s
understanding of the covenant between physician and patient and the policy concerns about
keeping private and potentially embarrassing information private, adding, “The relationship
of patient to physician is a particularly intimate one [because] [t]o the physician we bare our
bodies . . . in confidence that what is seen and heard will remain unknown to others.” Id. at
726 (quoting Cua v. Morrison, 626 N.E.2d 581, 586 (Ind. Ct. App. 1993)). However, it
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recognized that “public policy considerations reflected in the Tennessee Rules of Civil
Procedure require that the covenant of physician-patient confidentiality be voided for the
purpose of discovery,” so that “the defendant can defend himself against civil liability.” Id.
at 726. Balancing the policy considerations, the Court held that the attorney for the
defendant healthcare provider could learn all he needed to know by engaging in the discovery
permitted under the Rules of Civil Procedure, and did not need to resort to ex parte
communications with the plaintiffs’ non-party treating physician in order to defend his client.
Id. at 726-27 (quoting Crist v. Moffatt, 389 S.E.2d 41, 45 (N.C. 1990) (citing Petrillo v.
Syntex Lab., Inc., 499 N.E.2d 952, 963 (Ill. App. Ct. 1986); Roosevelt Hotel Ltd. P'ship v.
Sweeny, 394 N.W.2d 353, 356 (Iowa 1986); Anker v. Brodnitz, 413 N.Y.S.2d 582, 585-86
(N.Y. App. Div. 1979))). It reasoned that since the plaintiffs’ consent to disclose the
patient’s “confidential, relevant medical information was implied at law as a consequence
of the plaintiffs’ 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 omitted). The Court concluded that ex parte
communications between the patient’s non-party treating physician and defense counsel
violates the implied covenant of confidentiality referenced in Givens, even where the
communications are countenanced by court order. Id. at 727-28. See also Whitney Boshers
Hayes, Physician-Patient Confidentiality in Health Care Liability Actions: HIPAA’s
Preemption of Ex Parte Interviews with Treating Physicians Though the Obstacle Test, 44
U. Mem. L. Rev. 97, 104 (Fall 2013). Accordingly, it reversed the trial court’s order
permitting defense counsel to confer ex parte with the non-party treating physician.
As in Alsip, in this case, the healthcare providers with whom defense counsel seeks to confer
ex parte are non-party treating physicians. In this case, however, the treating physicians are
also shareholder employees of the named defendant Jackson Clinic. We must consider
whether the rule set forth in Alsip holds under these circumstances. In our analysis, we focus
on the status of Drs. Cherry and Mariencheck as employees of the Jackson Clinic.
Hall argues that, so long as the actions of Drs. Cherry or Mariencheck have not been asserted
as a basis for liability against the Jackson Clinic, then those physicians are like any other non-
party treating physician, and the attorneys for the Jackson Clinic should be barred from ex
parte communications, under Alsip. At least one state with established caselaw similar to
Alsip has agreed with Hall’s position. In 1986, Illinois issued its decision in Petrillo v.
Syntex Laboratories, Inc., 499 N.E.2d 952 (Ill. App. Ct. 1986), a case cited with approval
in Alsip. See Alsip, 795 S.W.3d at 727. Petrillo held that defense counsel could not engage
in ex parte communication with a plaintiff's treating physicians, in a case in which the
physicians’ conduct was not a basis for the defendants’ liability. Petrillo, 499 N.E.2d at 965.
Petrillo reasoned that “principles of public policy, obligations created by confidential and
fiduciary relationships, and the ethical responsibilities of modern-day professionals”
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prohibited such ex parte communications between defense counsel and a plaintiff's treating
physician. Petrillo, 499 N.E.2d at 971. Years later, in Aylward v. Settecase, 948 N.E.2d 769
(Ill. App. Ct. 2011), the Illinois appellate court was asked to carve out an exception to
Petrillo where, as here, the defendant physicians’ group sought permission for its defense
counsel to confer ex parte with one of the plaintiff’s treating physicians, an employee of the
defendant group whose actions were not asserted as a basis for liability. The Aylward Court
declined to do so; it found that allowing such ex parte communications “would substantially
erode the rationale underlying Petrillo.” Id. at 774. It held that, “unless and until the actions
of the [defendant physician group’s] employees are alleged to be a basis for plaintiff's
injuries, [the defendant physician group] cannot engage in ex parte communications with
them.” Id. See also Kirkland v. Steven Siglove, M.D. and DuPage Medical Group, Ltd, No.
11-C-7285, 2013 WL 707917, at *2-3 (N.D. Ill. Feb. 26, 2013) (applying Aylward), cited by
Hall in this appeal.
Other states with caselaw similar to Alsip, also cited with approval in Alsip, have agreed with
the position argued by the Jackson Clinic, that the fact that the treating physicians at issue
in this case are employees of the defendant physician group is sufficient reason to permit
defense counsel to confer ex parte with them. In Duquette v. Superior Court, cited with
approval in Alsip, the Arizona appellate court held that defense counsel in a medical
malpractice lawsuit may not engage in ex parte communications with the plaintiff's treating
physician without the plaintiff's consent. See Alsip, 197 S.W.3d at 726, 728 (citing Duquette
v. Superior Court, 778 P.2d 634, 640 (Ariz. Ct. App.1989)). Years later, the same court was
asked to decide “if the ruling in Duquette bars communications between a defendant hospital
and its counsel, and the hospital's own employees who provided treatment to the plaintiff.”
Phoenix Children’s Hosp., Inc. v. Grant, 265 P.3d 417, 418 (Ariz. Ct. App. Div. 1, 2011).
The Phoenix Children’s Hospital Court recognized that courts addressing this issue have
reached differing conclusions. Id. at 419 n.1 (citing cases). It noted that, under Arizona law,
the knowledge of an employee is imputed to the corporation if it is acquired within the scope
of his employment and is within his authority. Id. at 421. In light of this principle, the
Arizona appellate court reasoned:
The issue raised in this special action is different from Duquette because the
implied waiver is not the source of [the defendant hospital’s] authority to
discuss [the plaintiff patient’s] medical condition with her treating physicians.
The treating physicians are employees of [the defendant hospital]. Their
knowledge of [the plaintiff patient] exists because they are treating her as
agents and employees of the hospital, and that knowledge is presumptively
shared with their employer.
***
Applying these principles, a hospital's right to discuss a plaintiff/patient with
its own employees exists because the employment relationship exists. That
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right is not dependent on the implied waiver arising from the filing of the
malpractice lawsuit. We see no reason why the filing of a lawsuit expands the
physician-patient privilege to bar communications that are otherwise allowed.
Therefore, we conclude that Duquette does not apply to treating physicians
who are employees of a corporate defendant that is itself a defendant in a
medical malpractice action.
Id. (internal footnote omitted). The plaintiff in Phoenix Children’s Hospital argued that the
patient still has a confidential relationship with her treating physicians, even if the physicians
are employed by the defendant hospital, so the hospital’s defense counsel should not be
permitted to confer ex parte with her treating physicians without her consent. The Court
rejected this argument:
The policies discussed in Duquette served to control the information available
to defense counsel from the implied waiver of the physician-patient privilege.
The information at issue here does not flow from the implied waiver, but from
the employer-employee relationship itself. The relationship gives rise to
obligations of the employees to the employer that are not present when the
treating physician is not an employee, and equally impose obligations on the
employer to the patients and employees. Because the employer is inextricably
involved in the relationship between an employed physician and a patient, we
cannot conclude that public policy creates a wall between the employees and
their employer regarding that patient.
Id. Thus, the Arizona appellate court in Phoenix Children’s Hospital reasoned that the
corporate defendant has an independent right to speak freely with its own employees,
springing from the employer-employee relationship, and the fact that the plaintiff patient had
filed a lawsuit does not serve to bar communications that are otherwise allowed. On this
basis, it permitted the hospital’s defense counsel to confer ex parte with treating physicians
who were employees of the defendant hospital. Id. at 422.
The Florida appellate court reached the same conclusion, with similar reasoning, in Estate
of Stephens ex rel. Clark v. Galen Health Care, Inc., 911 So. 2d 277, 281-82 (Fla. Dist. Ct.
App. 2005). In that case, the Court reasoned that there is no “disclosure” of confidential
patient information when a hospital corporation talks with its employees about information
obtained in the course of employment. Id. at 282. It explained:
The corporate entities have no knowledge in and of themselves. They can act
only through their employees and agents and should be able to speak to those
employees to discuss a pending lawsuit. The [defendant corporate healthcare
providers’] attorneys should also be able to speak with the [defendant
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corporate healthcare providers’] employees and agents as the corporate entities
are able to function only through them. Such communication would not be a
disclosure in violation of doctor/patient privilege. . . .
Id. See also Wade v. Vabnick-Wener, 922 F. Supp. 2d 679, 693 (W.D. Tenn. 2010), in
which the federal district court, applying Tennessee law, relied on Estate of Stephens to
predict that Tennessee courts, when faced with the question of whether to permit defense
counsel for a medical group to confer ex parte with an employee who had treated the
plaintiff patient, would permit such ex parte communications. Wade, 922 F. Supp. 2d at 692-
93. In addition, in Boula v. United States, a federal district court applied North Carolina
law to the issue of “whether an institutional defendant may only communicate with one of
its employees who was not involved in the alleged medical malpractice through formal means
of discovery.” Boula v. United States, No. 1:11CV366, 2013 WL 5962935, at *5 (M.D.N.C.
Nov. 7, 2013). The plaintiff in that case relied on the North Carolina decision in Crist v.
Moffatt, which was cited with approval in Alsip. Boula, 2013 WL 5962935, at *4-5; Alsip,
197 S.W.3d at 727 (citing Crist v. Moffatt, 389 S.E.2d 41 (N.C. 1990)). The federal district
court in Boula held that North Carolina would not apply Crist to bar the defendant medical
center’s attorney from conferring ex parte with a physician employed by the medical center
who treated the plaintiff, because “[t]he privacy and confidentiality concerns are
substantially, if not completely, eliminated when the treating physician is employed by the
defendant medical center.” Boula, 2013 WL 5962935, at *5.
We are persuaded by the reasoning in the cases that permit counsel for a defendant medical
entity to confer ex parte with non-party treating physicians who are employed by the
defendant medical entity. Tennessee has long recognized that a corporation can function
only through its agents and employees, that the acts of an employee may be attributed to the
employer, and that the corporation’s knowledge is acquired via its agents and employees.
“A basic principle of agency is that a corporation can act only through the authorized acts of
its corporate directors, officers, and other employees and agents. Thus, the acts of the
corporation’s agents are attributed to the corporation itself.” Trau-Med of Am., Inc. v.
Allstate Ins. Co., 71 S.W.3d 691, 703 (Tenn. 2002). Any knowledge that Drs. Cherry and
Mariencheck may have regarding the decedent’s treatment was acquired in the course and
scope of their employment and is already imputed to the Jackson Clinic. See Bland v. Allstate
Ins. Co., 944 S.W.2d 372, 376 (Tenn. Ct. App. 1996) (“Of course, the knowledge of an agent is
imputed to his principal.”) (citing Griffith Motors, Inc. v. Parker, 633 S.W.2d 319, 322
(Tenn. Ct. App. 1982); Amer. General Life Ins. Co. v. Gilbert, 595 S.W.2d 83, 87 (Tenn.
Ct. App. 1979)). As noted in Phoenix Children’s Hospital, the Jackson Clinic has an
independent right to discuss a patient with its own employee, separate and apart from the
implied waiver that arises from the filing of the healthcare liability lawsuit. Phoenix
Children’s Hosp., Inc., 265 P.3d at 422. Like the Court in Phoenix Children’s Hospital,
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we “see no reason why the filing of a lawsuit . . . [would] bar communications that are
otherwise allowed.” Id. at 421.
We hold that neither Alsip nor Givens would bar counsel for the Jackson Clinic from
conferring ex parte with Drs. Cherry and Mariencheck, since both are employees of the
Jackson Clinic. In view of this holding, we need not address the effect, if any, of their status
as shareholders in the Jackson Clinic. We must respectfully conclude that the trial court
erred in declining to permit ex parte communications between defense counsel for the
Jackson Clinic and Drs. Cherry and Mariencheck. All other issues raised on appeal are
pretermitted by this decision
Accordingly, we reverse the trial court’s order and remand for further proceedings consistent
with this Opinion.
C ONCLUSION
The decision of the trial court is reversed and the cause is remanded for further proceedings
consistent with this opinion. Costs on appeal are assessed against Plaintiff/Appellee Cheryl
Hall, for which execution may issue if necessary.
___________________________
HOLLY M. KIRBY, JUDGE
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