In a recent HCLA case, the Tennessee Supreme Court held that “a defendant healthcare provider cannot be compelled to provide expert opinion testimony about another defendant provider’s standard of care or deviation from that standard.”
In Borngne ex rel. Hyter v. Chattanooga-Hamilton County Hospital Authority, — S.W.3d —, No. E2020-00158-SC-R11-CV (Tenn. May 23, 2023), plaintiff filed a healthcare liability action against multiple defendants, including the midwife who was overseeing her birth and the midwife’s supervising physician, Dr. Seeber. Plaintiff suffered permanent brain damage and was severely debilitated by injuries received during the birth. During the supervising physician’s deposition, plaintiff’s counsel questioned him about what his expectations of the midwife would be in hypothetical situations, when the mother’s condition became concerning, and other questions related to the standard of care for the midwife, all of which the physician’s attorney instructed him not to answer.
Plaintiff filed a “motion to compel Dr. Seeber to testify concerning [the midwife’s] performance prior to his arrival,” which the trial court denied. The Court of Appeals, however, reversed the trial court and ruled that “the trial court erred by refusing to order Dr. Seeber to answer the questions at issue in his deposition.” In this appeal to the Supreme Court, the judgment of the trial court denying the motion to compel was affirmed.
In a matter of first impression, defendants were asking the Tennessee Supreme Court “to recognize for the first time that a defendant physician may refuse to give his or her expert opinion as to certain matters in a healthcare liability action.” In denying the motion to compel, the trial court had cited Lewis v. Brooks, 66 S.W.3d 883 (Tenn. Ct. App. 2001), in which the Court of Appeals did not require defendant doctors to testify about their opinions regarding the other defendant doctor. When reversing the trial court in this case, however, the Court of Appeals had relied on a different Court of Appeals case (Waterman v. Damp, No. M2005-01265-COA-R3-CV, 2006 WL 2872432 (Tenn. Ct. App. 2006)) to find that the physician could be compelled to testify because the midwife was in a “subordinate role,” and compelling the physician to testify about the “conduct of his supervisee…would be more akin to compelling him to testify as to his own conduct[.]” Ultimately, the Supreme Court agreed with the trial court’s analysis and the reasoning in the Lewis decision, stating that “an expert, even a party defendant, may not be compelled to give his or her expert opinion because a private litigant is simply not entitled to a healthcare professional’s expert views.”
The Court looked to the Wisconsin Supreme Court, which had found a similar privilege to exist in that state. Pointing to Tennessee Rule of Evidence 706(a), the Supreme Court noted that even the court cannot appoint an expert unless the “witness consents to act.” The Court wrote that “a consent requirement for court-appointed experts necessarily implies a broader privilege,” and that “it makes little if any sense to conclude that a litigant has greater rights than a court with respect to obtaining testimony from experts.” (internal citation omitted). The Court therefore found that Tennessee Rule of 706(a) provided grounds for the privilege.
The Supreme Court also explained that “recognizing such a privilege is good public policy.” The Court wrote that the privilege “acknowledged the unfairness of compelling a person to testify just because he or she is accomplished in a particular science, art, or profession;” that there would be “understandable reluctance of a health care provider to testify against another health care provider due to the strain unfavorable testimony can place on relationships between colleagues;” and that “relationships among local health care providers may affect the objectivity of their testimony.” (internal citation and quotations omitted).
For these reasons, the Court held that “a defendant healthcare provider cannot be compelled to provide expert opinion testimony about another defendant provider’s standard of care or deviation from that standard.”
Having ruled that such a privilege exists, the Court next considered whether the supervisory relationship between the physician and midwife in this case would change the analysis. Noting that it could envision an exception based on supervisory relationships “swallowing” the privilege, the Court stated that it “ultimately remain[ed] unconvinced that one practitioner’s supervision of another justifies an exception,” and it explained that the “holding… stands regardless of any supervisory relationship between the providers.”
Because the defendant physician could not be compelled to give his expert opinion regarding his co-defendant, the ruling of the trial court was affirmed.
In a lengthy concurring opinion joined by Justice Kirby, Justice Campbell wrote that she “would not adopt a new evidentiary privilege for expert witnesses because that privilege is not grounded in the Constitution, Tennessee’s statutes, the common law, or this Court’s Rules—the only permissible sources of a privilege under Tennessee Rule of Evidence 501.” After explaining that there was no basis for this privilege, Justice Campbell wrote that “the Court overstepped the appropriate boundaries of a common law court by adopting a new privilege based on its own assessment and weighing of the relevant policy interests” and that “the creation of evidentiary privileges is now predominantly a legislative function[.]” Justice Campbell nonetheless concurred in the ultimate result because she found that exclusion of the physician’s testimony was harmless.
Justice Kirby also wrote her own concurring opinion addressing “particular problems with the majority’s reasoning, as well as far-reaching unintended consequences of this ill-defined new common-law privilege.” Justice Lee likewise wrote a concurring opinion for the purpose of “highlight[ing] the flawed and impractical analysis” in Justice Campbell’s concurring opinion.
This is an important decision establishing a new common law privilege for healthcare defendants who are asked about their expert opinion on another provider’s care. It will be interesting to see how this privilege is utilized by defendants, as well as whether other defendants who would qualify as experts in non-healthcare fields argue for similar privileges to be applied to their professions.
This knife cuts both ways. If an objection is lodged during a deposition on this issue and the deponent refuses to testify as to the standard of care of another health care professional, he or she should not be permitted to testify on the subject at trial. Look for a standard motion in limine to be developed on this issue.
This opinion was released a little over a year after oral arguments in this case.