Tennessee Supreme Court Holds Healthcare Liability Statute Constitutional As Elided

February 28, 2020

The Tennessee Supreme Court upheld the constitutionality of a healthcare liability statute after removing a phrase from the provision that the Court considered unconstitutional as violating the separation of powers clause of the Tennessee Constitution because the phrases removed all discretion from judicial discovery procedures.

This case stems from a healthcare liability wrongful death lawsuit that was brought on behalf of an individual who died in the course of treatment by the defendants for gastrointestinal problems.  During the discovery phase, the defendants filed a motion for a qualified protective order to allow the defendants to conduct interviews with the deceased’s non-party treating healthcare providers outside the presence of counsel for the plaintiff.  This motion was filed under Tennessee Code Annotated section 29-26-121(f), which provides that a trial court shall issue the qualified protective order if the defendants file according to the statute.  The plaintiff responded to the motion, arguing that the statute at issue was unconstitutional as violating the separation of powers clause in the Tennessee Constitution because it requires trial courts to issue the qualified protective order and strips the court of its inherent discretionary authority over discovery matters. 

The trial court reluctantly granted the motion for the qualified protective order.  The plaintiff then sought permission for an interlocutory appeal, and the trial court granted the motion.  The Court of Appeals, however, denied the plaintiff’s application for permission to appeal.  The plaintiff then sought permission to appeal to Tennessee Supreme Court, and the Court granted the application.

In the majority opinion authored by Chief Justice Jeff Bivins, the Court first adopted a substantive versus procedural test to analyze whether a statute violated the separation of powers provision of the Tennessee Constitution.  In applying that test to the statute involved in this case, the Court determined that the overriding purpose of the statute was not entirely procedural.  As a result, the statute was within the authority of the legislature to enact.  However, the Court further determined that the portion of the statute which provided that a trial court shall issue the qualified protective order violated the separation of powers provision in that this mandatory requirement addressed entirely procedural matters and removed the inherent discretion of trial courts regarding discovery matters.  The Court then concluded that the statute could be elided so that the language was no longer mandatory but permissive as to trial courts.  As a result, the Court held the statute, as elided, to be constitutional.  The Court then vacated the trial court’s qualified protective order in this case and remanded the case to the trial court for reconsideration in light of the guidance provided in the opinion.

Justice Holly Kirby concurred in part and dissented in part.  Justice Kirby agreed with the majority’s adoption of the substantive versus procedural test to analyze separation of powers constitutional challenges.  Applying that test, however, she concluded that the entire statute violates separation of powers because it involves pure court procedure, a matter within the control and authority of the judicial branch of the Tennessee government.  Even if it were not purely procedural, applying the test the majority adopted, the statute violates separation of powers because it nullifies a ruling by the State’s Supreme Court on a question of pure court procedure.  As a result, Justice Kirby would hold that the entire statute is unconstitutional.

To read the Supreme Court’s majority opinion in Rhonda Willeford, et al. v. Timothy P. Klepper, MD, et al. v. State of Tennessee, authored by Chief Justice Jeff Bivins, and the concurring and dissenting opinion authored by Justice Holly Kirby, go to the opinions section of TNCourts.gov.