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Ibsen v. Summit View of Farragut, LLC

Court of Appeals of Tennessee, Knoxville

December 11, 2019

HALLYSAH IBSEN AS ADMINSTRATOR OF THE ESTATE OF ELAINE KELLY, AND ROBERT KELLY
v.
SUMMIT VIEW OF FARRAGUT, LLC, ET AL.

          Session October 15, 2019

          Appeal from the Circuit Court for Knox County No. 2-523-15 William T. Ailor, Judge

         In this 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.

         Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed

          Leslie Tentler Ridings and Meredith Bates Humbert, Kingsport, Tennessee, for the appellees, Summit View Health Management, Inc., and Summit View of Farragut, LLC.

          Edward Gibson White, II, Barton Chandler Williams, and Benjamin Chase Kibler, Knoxville, Tennessee, for the appellee, Nancy Luongo Witherspoon.

          Jamie Ballinger, Knoxville, Tennessee, for the appellee, Mary A. Hammonds.

          Andy 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.

          OPINION

          ANDY D. BENNETT, JUDGE

         Factual and Procedural Background

         The 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).[1] 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.

         The 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 following language:

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.

         At the 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].

         On 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 powers doctrine.

         The 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.[2] The plaintiffs argued that the defendants sought to sanction the exercise of fundamental free speech rights.

         In an 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."

         On 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 ...


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