HALLYSAH IBSEN AS ADMINSTRATOR OF THE ESTATE OF ELAINE KELLY, AND ROBERT KELLY
SUMMIT VIEW OF FARRAGUT, LLC, ET AL.
Session October 15, 2019
from the Circuit Court for Knox County No. 2-523-15 William
T. Ailor, Judge
healthcare liability action, the defendants filed a motion
for a qualified protective order allowing them to conduct ex
parte interviews with some of the plaintiffs' treating
healthcare providers pursuant to Tenn. Code Ann. §
29-26-121(f). After the trial court granted the qualified
protective order allowing the interviews, plaintiffs'
counsel wrote a letter to plaintiffs' treating providers
concerning the interviews. The defendants then filed a joint
motion for sanctions asserting that the letters sent by
plaintiffs' counsel violated the trial court's order
by attempting to prevent the treating providers from
participating in the interviews. The trial court granted
monetary sanctions against the plaintiffs and their counsel
and ordered plaintiffs' counsel to send retraction
letters to plaintiffs' treating providers. The plaintiffs
appeal. We have determined that the order on appeal is not a
final order and, therefore, dismiss the appeal.
R. App. P. 3 Appeal as of Right; Appeal Dismissed
Tentler Ridings and Meredith Bates Humbert, Kingsport,
Tennessee, for the appellees, Summit View Health Management,
Inc., and Summit View of Farragut, LLC.
Gibson White, II, Barton Chandler Williams, and Benjamin
Chase Kibler, Knoxville, Tennessee, for the appellee, Nancy
Ballinger, Knoxville, Tennessee, for the appellee, Mary A.
D. Bennett, J., delivered the opinion of the Court, in which
Charles D. Susano, Jr., and Thomas R. Frierson, II, JJ.,
joined. Linn M. Guerrero-Justice, Knoxville, Tennessee, for
the appellants, Hallysah Ibsen and Robert Kelly.
D. BENNETT, JUDGE
and Procedural Background
administrator of the estate of Elaine Kelly and Ms.
Kelly's husband, Robert Kelly, filed suit in 2015 against
Summit View of Farragut, LLC, a nursing home, and other
healthcare defendants asserting multiple causes of action
including healthcare liability, wrongful death, negligence,
fraud, and claims under the Tennessee Adult Protection Act,
Tenn. Code Ann. §§ 71-6-101-126. On January 26,
2017, the defendants filed a joint motion for a qualified
protective order allowing them to conduct ex parte interviews
with a list of Ms. Kelly's treating healthcare providers
pursuant to Tenn. Code Ann. §
29-26-121(f). The plaintiffs objected on the grounds
that Tenn. Code Ann. § 29-26-121(f) was unconstitutional
and preempted by HIPAA, the Health Insurance Portability and
Accountability Act, as well as on the ground that the
proposed order was too broad under the statute. The State of
Tennessee, through the Office of the Attorney General, moved
to intervene to defend the constitutionality of Tenn. Code
Ann. § 29-26-121(f), and the trial court granted the
motion to intervene on August 15, 2017.
trial court entered a qualified protective order on September
19, 2017, allowing ex parte interviews with Ms. Kelly's
treating healthcare providers. The order includes the
The participation of Elaine Kelly's prior treating
medical providers in the interviews conducted pursuant to
this Order is voluntary. Nothing in this order shall be
construed as compelling the prior treating medical providers
to speak to any party in an ex parte interview.
September 19, 2017 hearing, the trial court made the
following admonition to plaintiffs' counsel:
Mr. Justice, I will tell you that my practice in this Court
is that [the order] does not preclude you from contacting
the doctors and explaining to them that this order is
voluntary. But it will not give you the ability to contact
them and tell them not to participate. All right. So that
doesn't give you the ability to interfere with the
Defendants' rights to conduct these interviews, but you
can contact them and make sure that they understand that
this is volunt[ary].
November 9, 2017, the trial court entered an order in which
it concluded that "Tenn. Code Ann. § 29-26-121(f)
is constitutional and not preempted by HIPAA." The court
found that the statute did not violate the separation of
defendants filed a joint motion for sanctions on October 24,
2017, asserting that six letters sent by plaintiffs'
counsel to Ms. Kelly's treating healthcare providers
"violated the Court's [September 19, 2017] order by
attempting to keep the health care providers from taking part
in the interviews." The defendants provided copies of
the letters to the trial court. The plaintiffs argued that the
defendants sought to sanction the exercise of fundamental
free speech rights.
order entered on January 3, 2018, the trial court found that
the letters sent to Ms. Kelly's treating healthcare
providers violated the court's order of September 19,
2017, and were "coercive, inflammatory, and
improper." The court imposed the following sanctions:
the plaintiffs and/or their counsel were to pay all costs and
expenses, including attorney fees, incurred by the defendants
in preparing for the joint motion and hearing and in
contacting and deposing the treating healthcare providers
identified in the motion for a qualified protective order.
The court also ordered the plaintiffs' counsel to send a
retraction letter to all of the treating healthcare providers
he had contacted "explaining that his September 19, 2017
letter was improper, incorrect and in violation of Court
Order." The trial court further warned that "any
further interference with the Defendant[s'] discovery
rights, including the right to interview treating healthcare
providers, shall result in dismissal of this case."
January 18, 2018, the plaintiffs filed a motion to alter or
amend the order granting the defendants' joint motion for
sanctions. The trial court denied the ...