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Recent Court Opinions Impact Physician Communication

This summer, the Tennessee Supreme Court and the Tennessee Court of Appeals issued opinions within days of each other that clearly impact a physician’s communication with an employer’s legal representation in worker’s compensation cases and directly with a patient. In light of these new opinions, doctors should be aware that what they say could be used against them.

Worker’s Compensation Cases

As we are all aware by this point, HIPAA restricts the use and disclosure of patient information. One HIPAA exception, however, allows disclosure of information to an employer in a worker’s compensation action.

Generally, the worker’s compensation laws allow employers to obtain information about the employee and his condition. Can the employer’s lawyer speak with the treating physician without the employee’s consent? In Tennessee, the answer is “No.”

On June 17, 2008, the Tennessee Supreme Court issued an opinion in Overstreet v. TRW Commercial Steering Division, (No. M2007-01817-SC-R10-WC). In that case, the Supreme Court held that even in a worker’s compensation action, the patient possesses a right to confidentiality of his or her health information.

For physicians and other healthcare practitioners, this case is extremely significant for several reasons:

1. The patient’s right of confidentiality did not depend upon who was paying the bills.


2. The patient’s right of confidentiality was not affected by the fact that the employee had applied for worker’s compensation benefits.


3. The patient’s right of confidentiality did not allow the physician to provide any information other than the information set forth in the statute.

The Tennessee Worker’s Compensation Act allows physicians to provide an employer with “a complete medical report . . . as to the claimed injury, its effect upon the employee, the medical treatment prescribed, an estimate of the duration of required hospitalization, if any, and an itemized statement of medical charges to date,” as well as “subsequent prognosis reports, medical records and statements of charges.”

The Act does not permit a physician to speak to the employer’s attorney or provide any other information to the employer. Of course, the employer’s attorney can and probably will take the provider’s deposition.

For healthcare providers, this opinion reinforces the physician’s duty of confidentiality. As a practical matter, HIPAA does not give a patient the right to sue his or her provider for a violation. However, this case makes clear that in Tennessee a covenant of confidentiality exists between the provider and the patient. If a provider breaches that covenant, the patient can sue the provider for breach of this covenant.

While the case answers one question – in Tennessee, the patient’s right of privacy is broader than HIPAA — it leaves many other questions unanswered. Can a patient limit a physician’s disclosure of health information to insurance companies? To law enforcement? To other providers? These issues are sure to be litigated as patients enforce their privacy rights.

And Nothing But the Truth

Even if a physician does not commit “malpractice,” a patient can sue for violation of the Tennessee Consumer Protection Act. And, unlike a malpractice action, the patient does not need expert testimony and can recover punitive damages or treble damages and attorney’s fees.

On June 10, 2008, the Tennessee Court of Appeals issued an opinion in Proctor v. Chattanooga Orthopaedic Group, (No. E2007-02469-COA-R3-CV) reversing the dismissal of a lawsuit by a patient against his physician. Unlike the typical lawsuit, this lawsuit was not for medical malpractice but for violation of the Tennessee Consumer Protection Act. The complaint did not allege that the physician violated the standard of care in performing surgery. Instead, the complaint alleged that the physician lied. This, the Court of Appeals held, constituted a claim under the Tennessee Consumer Protection Act.

Generally, the TCPA (Tenn. Code Ann. § 47-19-101) allows persons to sue businesses that commit deceptive business practices. The Act contains a laundry list of 44 “deceptive” practices and concludes with the admonishment against “engaging in any other act or practice which is deceptive to the consumer or to any other person.”

In the recent complaint, the patient alleged his physician left the practice prior to his surgery date. The practice transferred the patient to another physician in the practice for the surgery. When the patient questioned the transfer, the practice stated that his physician was “unavailable” to perform the surgery. Of course, the practice failed to tell the patient that his physician was unavailable because he had left the practice.

Next, the patient alleged that the physician performed one procedure, but his post-operative notes and the practice’s insurance billings show that a different procedure was performed. That billed procedure provided greater reimbursement than the actual procedure performed.

The Court made two crucial findings:

1. These allegations, if made about any other business, would be deceptive under the TCPA.


2. Physicians are not exempt from the TCPA merely because they are physicians.

For many years, physicians have fought for malpractice reform because of the high cost of defending such cases. As a result of that fight, the Tennessee General Assembly has imposed restrictions in malpractice cases that make it more difficult for a patient to win a malpractice suit. Therefore, plaintiff’s attorneys have sought other avenues to sue physicians … they have found one in the Tennessee Consumer Protection Act. And, unlike a malpractice case, the TCPA allows the patient to recover actual damages, plus punitive damages or treble damages, plus attorney’s fees. Thus, a TCPA case may be more profitable, as well.

Finally, claims under the TCPA are probably not covered by “malpractice” insurance because they will not involve the performance of professional services. Instead, they involve some aspect of the business relationship.

This decision also presents many questions for the future. BlueCross BlueShield of Tennessee recently published its quality report on primary care providers. Can a physician be liable for referring a patient to a “bad” doctor? Should a physician be liable for referring patients to a “needs improvement” facility? One thing is certain –– every practice should review its general liability insurance policy to ensure that coverage exists for TCPA claims or obtain that coverage.


Keith C. Dennen is a member of Bone McAllester Norton, PLLC of Nashville. He concentrates his practice in the areas of healthcare law, intellectual property law, employment law and corporate and transactional law and litigation. For more information, please visit www.bonelaw.com.

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