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Givens v. Mullikin11/28/2000
l be for the trier of fact to ascertain at trial. For the purpose of a motion to dismiss, we hold only that the allegation that the Firm did not obtain Plaintiff's consent, coupled with Plaintiff's allegations that the Richardson Firm had an ulterior motive, namely, discouraging Plaintiff from vigorously prosecuting the underlying action, is sufficient to state a claim for abuse of process.
Plaintiff also alleges that the above subpoenas were illegal because they violated the Patient's Privacy Protection Act, T.C.A. § 68- 11-1501, et seq. The Act, specifically T.C.A. § 68-11-1505, provides that, "Nothing in this part shall be construed as prohibiting the information made confidential by the provisions of this part from being subject to the subpoena of a court of competent jurisdiction." If Plaintiff's allegations are true, then it could be said that the Firm abused the process by issuing illegal subpoenas in order to fall within the above statutory exception. The same could be said for T.C.A. § 68- 11-405, which permits release of hospital records directly to counsel pursuant to subpoena only in cases where the Plaintiff has raised the issue of his or her physical or mental condition.
Accordingly, the order of the trial court denying Defendants' motions to dismiss as to the causes of action for invasion of privacy and inducing the breach of a confidential relationship is reversed and the order in all other respects is affirmed. Costs of the appeal are assessed one-half to Plaintiff and one-half to Defendants, Allstate Insurance Company and Ed Mullikin, Administrator Ad Litem for the Estate of Larry McElwaney, and their sureties. The case is remanded to the trial court for such other proceedings as may be necessary.
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