The “Givens Fix:” Ex Parte Communication between Non-Party Physicians and Defense Attorneys

By: Jennifer Pearson Taylor & Angela L. Morris

What is the current status of Tennessee law in regard to non-party physician and attorney ex parte contacts?

Though such ex parte communications were previously forbidden by the Tennessee Supreme Court,¹ the legislature implemented the so-called "Givens Fix,"² which took effect July 1, 2012.

The new law allows a defendant to petition the court upon the filing of a healthcare liability action³ for a qualified protective order allowing the defendant and his attorneys to interview, outside the presence of the plaintiff or plaintiff's counsel, the relevant patient's healthcare providers in order to obtain protected health information. Further, any disclosure of protected health information by a healthcare provider in response to an order under the statute is deemed a permissible disclosure despite any Tennessee statute or common law.⁴

Thus, ex parte communications with the relevant patient's non-party healthcare providers are expressly allowed once a qualified protective order has been obtained.⁵ "Healthcare provider" includes licensed healthcare practitioners, licensed non-governmental healthcare facilities, and employees of healthcare providers involved in the provision of healthcare.⁶

What about HIPAA?

In Givens v. Mullikin, the Tennessee Supreme Court prohibited ex parte communications based on Tennessee laws that the Tennessee legislature circumvented with "Givens Fix."⁷ Now, with the roadblock to ex parte communications removed from the Tennessee code, Plaintiffs and their attorneys will likely challenge "Givens Fix" by arguing that HIPAA contradicts, and thus preempts, the rule.

Neither HIPAA nor its legislative history, however, specifically address ex parte communications with a patient's treating physician.8 As a result, a strong argument exists that HIPAA's silence indicates that it does not conflict with, and thus preempt, state laws addressing ex parte communications. While HIPAA remains silent on ex parte communications, it does regulate when a physician may disclose protected health information. Because ex parte communications between treating physicians and a defendant or their attorney would likely contain protected health information, HIPAA regulations would remain applicable and the provisions of the "Givens Fix" rule could only supersede the them by containing more stringent requirement.

Does the Givens Fix Rule Comply with HIPAA Regulations?

After reading the "Givens fix" rule in conjunction with the relevant HIPAA regulations, it seems as though the Tennessee legislature knew that the law would need to adhere to HIPAA regulations. Under HIPAA, a covered entity cannot disclose protected health information without permission, unless the disclosure constitutes a standard use: treatment, payment or health care operations.⁹ A defense attorney's communications would not meet the standard use requirement; thus, the communication would need to fall under an exception.

One exception exists for protected health information disclosed "in the course of any judicial or administrative proceeding...in response to [either] an order of a court or administrative tribunal..." or "a subpoena, discovery request, or other lawful process, that is not accompanied by an order of a court or administrative tribunal...."¹⁰ This exceptions also requires that the patient receive notice, the opportunity to object, and requires the destruction of all protected health information at the end of the litigation.¹¹

The "Givens Fix" rule complies with most of these provisions. The rule only allows defendants to engage in ex parte communications by petitioning the court for a qualified ordered after the plaintiff files a complaint and allows the plaintiff to file an objection. Thus, the plaintiff would receive notice and the defendant would have obtained an adequate court order.¹² It does not, however, contain a provision requiring the destruction of any disclosed protected health information, though it does require any protected health information remain confidential.¹³

In a Georgia case, the Court held that HIPAA preempted a state law allowing the defendant to use either formal or informal discovery (including ex parte communications with the patient's treating physician), whenever a plaintiff puts a medical condition at issue.¹⁴ The court found that "HIPAA protects a patient from the unauthorized disclosure of protected health information and it is applicable to ex parte oral communications between defense counsel and a plaintiff's prior treating physicians."¹⁵ It further held that, "counsel cannot contact a plaintiff's prior treating physicians to discuss his or her medical history without complying with HIPAA regulations, [including obtaining a valid authorization or court order]."¹⁶ Thus, the Georgia court allowed ex parte communications to occur, but utilized HIPAA requirements over those provided by the Georgia statute.

Because the "Givens Fix" rule does not contain a provision for the destruction of protected health information, Tennessee courts, like the Georgia court, could hold that HIPAA supersedes the state law. Alternatively, trial court could include the destruction/return condition in their qualified protective order though the Tennessee provision does not require such.

Additionally, Tennessee courts could engage in definitional manipulation to completely disallow ex parte communications. Neither the HIPAA statute nor its accompanying regulations define "'in the course of' or 'judicial proceeding,' or expressly state whether the term should be given its common, narrow or broad legal definitions."17 Thus, the constitutionality of "Givens Fix" could hinge on the definition of "in the course of any judicial proceeding" applied by Tennessee courts.

The Supreme Court of Missouri held that HIPAA does not allow for ex parte communications with a plaintiff's physician, unless the communication meets a HIPAA provided exception.¹⁸ Because the court used state law to define "judicial proceeding" in a way that did not include the court's order authorizing the contact, the exception was not met, and HIPAA blocked the ex parte communication.

Tennessee courts, like the Missouri courts, could narrowly define 'in the course of' a 'judicial proceeding" in way that precludes ex parte communications. If this does not occur, then "Givens Fix" rule ensures that ex parte communications with a treating physician may occur under certain circumstances. The question remains, however, as to whether the "Givens Fix" rule or HIPAA regulations will govern the circumstances.

But what does this presently mean for me as a treating physician?

As a plaintiff's non-party treating physician you may be contacted informally by defense counsel about your patient as of July 1, 2012 IF that attorney has obtained a qualified protective order. As of now, such ex parte contacts are no longer improper in Tennessee.

Disclaimer: The information contained herein is strictly informational and should not be construed as legal advice.