I. Background

In 2002, the Tennessee Supreme Court held that there is an implied covenant of confidentiality between physician and patient, which prohibits informal discussions between a defense attorney and a plaintiff’s non-party physician. Givens v. Mullikin ex rel. McElwaney, 75 S.W.3d 383 (Tenn. 2002). Four years later, the Tennessee Supreme Court held that ex parte communications between the plaintiff’s non-party physicians and defense attorney is not permissible in Tennessee. Alsip v. Johnson City Medical Center, 197 S.W.3d 722 (Tenn. 2006). The law was crystal clear as it applied to the typical tort case, but what about workers’ compensation claims?
Many claimant attorneys argued that Givens and Alsip applied with equal force to workers’ compensation claims. However, without an express case holding the implied covenant of confidentiality applicable in a workers’ compensation case, the answer was not absolutely certain, and many employer/defense attorneys continued to engage in ex parte communications with the claimant/employee treating physicians.

II. Overstreet v. TRW Commercial Steering Div.

In Overstreet v. TRW Commercial Steering Div., 256 S.W.3d 626 (Tenn. 2008), the defendant employer filed a motion with the trial court seeking permission to interview the plaintiff’s treating physician and further sought to compel the employee to undergo an independent medical evaluation (“IME”). The trial court denied the motions, and permission to appeal was granted per Rule 10, TRAP. The relevant issue before the Court was relatively simple: Is an employer entitled to conduct an ex parte interview with an employee’s treating physician? The Court held:

The employer may not communicate ex parte with the employee’s treating physician without first obtaining a waiver of the implied covenant of confidentiality from the employee. . . .

Mr. Overstreet worked for his employer for nearly 35 years as a painter, tow motor operator, and assembly line worker before retiring in 2003. In 2005, Mr. Overstreet was evaluated by a doctor for hearing loss and tinnitus. The doctor issued a favorable opinion concerning hearing loss, tinnitus, impairment, and causation. Thereafter, Mr. Overstreet provided the doctor with written notification instructing the doctor not to communicate with defense counsel. Defense counsel made numerous attempts to communicate with the physician, but the doctor’s office properly advised that they would not engage in ex parte communications. The employer then filed a motion for an IME and also sought permission from the trial court to talk with the doctor outside the presence of plaintiff or his counsel. The Supreme Court, in affirming the trial court’s denial of the employer’s motion to engage in ex parte communications, began with a detailed review of the Givens and Alsip cases mentioned herein.
In order to distinguish the Alsip and Givens decisions, the employer advanced two arguments. First, the employer argued that because the employer/insurer pays the bills, and the plaintiff was not a party to the contract for medical services, the implied covenant of confidentiality was not applicable. Second, the employer claimed that TCA 50-6-204, which allows for the dissemination of medical reports to the employer, voided any covenant of confidentiality. Id.
The Court performed a contract/public policy analysis to determine if there was a covenant of confidentiality between the claimant and the physician. The Court noted that although Givens held that there is a covenant of confidentiality in fact which did not exist in the workers’ compensation context, the same covenant nevertheless exists by legal implication. After citing the relevant provisions concerning disclosure of medical reports, records, and statements of charges, the Court properly noted that nothing in 50-6-204 permits ex parte communications, and “from this conspicuous absence, we must infer that the General Assembly did not intend such communications.” Id. p. 14. According to the Court:

Because the General Assembly has enacted a right to privacy in health care and provided a comprehensive statutory scheme for the disclosure of information under the Workers’ Compensation Act, we hold that an implied covenant of confidentiality in law exists under these circumstances. Id. p. 15.

Although some of the Court’s legal reasoning sounded in contract, public policy dictated the ultimate result, and was intertwined throughout the opinion. The Court further admitted a very real concern to those of us representing claimants:

. . . . the employers actually pay the physicians. In a sense, the physician owes a service to the employer in exchange for his compensation. To some this would call into question whether the physician is free to exercise independent medical judgment. That concern could be exacerbated by allowing the employer to interview the physician outside the employee’s presence. Id. at p. 17.

Ultimately, the Supreme Court held that while an employer may obtain medical reports, records, and otherwise, as expressly provided for in TCA 50-6-204, the employer may not engage in ex parte communications with the physician.