### IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON October 10, 2000 Session CONNIE JEAN GIVENS v. ED MULLIKIN, ET AL 

### . A Direct Appeal from the Circuit Court for Shelby County No. 95241 T.D. The Honorable John R. McCarroll, Jr., Judge

No. W1999-01783-COA-R9-CV - Filed November 28, 2000

Plaintiff filed this action a

gainst defenda

nt inan underlying personal injury suit and the defendant’s liability insurance carrier, alleging that the defendants are vica riously liable for t

he actions of

the attorneys t

he insurance co

mpany hired

pursuant to its polic

y to represent theinsured in defense of plaintiff’s person al injury suit. The complaint alleges that said attorney s were guilty of abuse of process, invasion of privacy, inducing the breach of a confide ntial relationship, inducing the breach of an implied contract of confidentiality, and inducing the breach of a n express contract. The trial court denieddefendants’ moti

ons to dismiss, and this

case is before t

his Court on a Tenn. R.App.P. 9 interlocutory

appeal. Tenn.R.App.P. 9; Interlocutory Appeal; Judgment of the Circuit Court is Reversed in Part, Affirmed in Part, and Remanded

W. F RANK C RAWFORD , P.J., W.S., delivered the opinion of the court, in which A LAN E. H IGHERS , J. and D AVID R. F ARMER , J., joined.

Nathan W. Kellum, Memphis, For Appellant, Ed Mullikin, Administrator Ad Litem for th

e Estate of La rry M cEl wan ey

Leo Bearman, Jr., Robert M. Glover, Launice P. Sills, Memphis, For

Appellant, Allstat

e Insurance Company

William H. Fisher, III, Memphis, For Appellee , Connie Jean Givens1 After Mr. M cElwaney’s death, Ed Mullikin, Administrator Ad Litem for the Estate of

Larry McElwaney, was substitu ted as defendant/

ap pellant. Any references in the opinion to Mr. McElwaney will refer also t o the present appellant.

2 The Richardson Law Firm is not named as a defendant in this action. -2- OPINION Plaintiff, Connie Jean Given s, filed her complaint against D efendant, Larry McElwaney 1 , and Defendant,

Allstate InsuranceCompany, for damages allegedly caused by a law firm Allstate hired to represent

McElwaney in defense of the personal injury action filed by Plaintiff. The complaint alleges that the Defendants are liable for actions of the law firm under the doctrine of respondea t superior

. The complaint is 20 pages long , consi sts of 81 paragraphs, and extensively sets out the factual allegations on which Plaintiff bases her claims of abuse of process, invasion o f privacy , inducing t he b reach of a confidential relationship, inducing the breach of an implied contract of confidentiality, and inducing the br each of an expr

ess contract. The tr

ial court denied D

efendants’ motions to dismiss the complaint for failure to state a claim upon which relief can be granted, and Defendants wer

e granted an inte

rlocutory appea

l.
This case arise s fr om an underlying pe rsonal injury laws

uit involving Plaintif

f, Connie Givens, and Defendant, Larry McElwaney. In that lawsuit, Ms. Given s sue d Mr. McElwaney for injuries she sustained in an automobile accident on January 5, 1988. At the time of the accident, Mr. McElwaney carried a l iability insurance policy with Defendant, Allstate Insurance Company (“Allstate”). That policy obligated Allstate, inter alia , to provide legal counsel to defen d any suit instituted against Mr. McElwaney for d amages. Allstate engaged Attorne

y Harold Nichols to represent Mr. McElwaney in the personal injury lawsuit and later substituted the Richardson Law Firm (the “Richardson Firm” or “Firm”) on October 20, 1993.
Plaintiff alleges that, while representing Mr. McElwaney, the Richardson Fir m engaged in discovery practices which damaged Plaintiff

’s position in

the underlying lawsuit and which caused her to suffer “great embarrassment, anger and stress.” Plaintiff claims

that, through the a

cts of their agent, the Richard s on Firm, Defendan ts Allstate and McE

lwaney are liab

le for abuse of pr

ocess, invasion of privacy, inducing the breach of an express contract, inducing a breach of confidential relationship

and inducing a breach of an implied contract of confidentiality between Plaintiff and her physician. 2
Plaintiff alleges that the Richardson Firm act ed improperly by exceeding the limit of interrogatories under

local court rules by issuing approximately 237 interrogatories and by insisting upon a second deposition of Plaintiff which allegedly took 8 hours to complete and which included3 Paragraph 15 of Plaintiff’s Complaint contai ns an allegation tha t, at one poin t, opposin g counsel as ked her if she “had b een sleeping with the Defen dant M cElwaney.” -3- overly personal question

s. 3 Plaintiff also ave

rs that the Richar

dson Fir m abused the subpoena processby issuing 97 subpoenas to re cords custodians,

most of which were

to healthcare providers whose treatmen t o f Plaintiff had no bearing on the issues in the lawsuit. Plaintiff alleges that the subpoenas were used to obtain confidential inf ormation regarding the Plaintiff’s physical and mental conditi on. As a result of thes e allegedly illega

l subpoenas, Plainti

ff claims the Richa

rdson Fir m invadedher privacy and induced herphysician, Dr. Randall Holcomb, and other healthcare providers, to breach their confidential relationships and contracts of confidentiality with Plaintiff.
On July 28, 1998, Defe

ndants each file

d Rule 12.02(6) Mo

tions to Dismiss for Failure to State a Cla im. On October 9, 1998, the trial court entered an order denying both motions. O n December

3, 1999, the trial co urt entered an Order Granting Defendants’ Motions for Permission t o A ppeal, and on January 26, 2000, this Court granted Defendants’ Rule 9 application for permission to appe

al. Although the parties disagree as to the wording of the issues this case

presents, we believe those issues to be: (1) Whether an insurer and/or its insured can be held liable for the actions of a law firm the insurer hires to defend its insured; ( 2) Whether defense counsel’s pre-deposition interviews of Plaintiff’s treating physician and other health care providers give rise to a cause of action

for inducing a breach of confidential relationship under Tennessee law; (3) Whether defense counsel’s pre-deposition interviews of Plaintiff’s treati ng physician and other health care providers gives rise to a cause of action for invasion of privacy under Tennessee law; (4) Whether an implie

d contract of con

fidentiality

existed betweenPlaintiff and her treating physician and, if so, whether defense counsel induced a breach of that contract; (5) Whether

an express contract of confidentiality existed between Plaintiff and her treating physician and, if so, whether defense counsel induced a breach of that contract; and (6) Whether defense counsel’s actions during the discovery phase of the underlying personal injury a

ction constituted a

n abuse of civil pr

ocess. This case comes to u s o n appeal of the tr ial court’s orde

r denying Defendants’ Mot

ion to Dismiss for failure to state a claim. A determi nation of whether a complaint states a claim upon-4-

which relief can be gran ted obviously requires that the court consider only the a llegations of the complaint. See Wolcotts Financial Services, Inc. v. McReynolds , 807 S.W.2d 708 (Tenn. Ct. App. 1990).
In Humphries v. West End Terrace, Inc. , this Court said:

A motion to dismiss pursu ant to Rule 12.02(6) , Tenn. R. Civ. P., for failure to state a claim upon which relie f can be granted is the equivalent

of a demurrer under our former com mon law procedure and, thus, is a test of

the sufficiency of the leading pleading. Such a motion admits the truth of a ll rel evant and materi

al averments containedin the complaint but asserts that such facts do not consti tute a cause of action. A complaint should not be dismissed upon such motion “unless it appears beyond doubt that the plaintiff can prove no set of facts in suppor t of his claim that would entitle him to relief.” Fuerst

v. Methodist

Hospital South , 566 S.W.2d 847, 848 (Tenn. 1978). In considering whether to dismiss a complaint for failure to s tate a claim upon which relief can be granted, the court should construe the comp

laint liberally in

favor of the plaintiff taking all of the allegations of fact therein as true.
795 S.W.2d 128, 130 (Tenn. Ct., App. 1990)(citations omitted)(emphasis added). See also Riggs v. Burson , 941 S.W.2d 44 (Tenn. 1997). For the reasons below, we affirm the trial court’s denial of Defendants’ motions to dismiss as to Plaintiff’s claims of inducing breach of an implied contract of confidentiality, inducing breach of express contract, and abuse of process, but reverse as to Plaintiff’s claims of invasion of privacy and inducing breach of a confidential relationship. Liability of Principal for Actions of Agent
The seminal issue in this

case is whether an insurer and its insured may be held liable for the actions of the law firm the insurer hires to defend its insured. In order to determine whether such liability exists, we must first determine if there was an agency relationshi p between each of the Defendants

and the RichardsonFirm. For the purposes of this determination, we will examine each individual Defendant’s relationship separately.
The general rule

in Tennessee is that a principal is liable for the negligence or wrongful acts of his agent acting within the actual or apparent scope of his employment in the principal’s service. See, e.g. , 1 Tenn. Juris., Age ncy, § 47 (1982); V.L. Nicholson Co. v. Transcon Inv. and Financial Ltd., Inc. , 595 S.W. 2d 474, 483 (Te nn. 1980); McGee v. County of Wilson , 574 S.W.2d 744, 746- 47 (Tenn. Ct. App. 197 8). This respondeat superior liability exists where the principal has a right to control the agent. See Doane Agric. Serv., Inc. v. Coleman , 254 F.2d 40, 43 (6th Cir. 1958), c ert. denied, 358 U.S. 818 (1958). Our Supreme Court has recognized that “a servant, acting within the general scope of his authority, makes the master responsible, even though he act without instructions,

or exceed his instructions.” Louisville & N. R. Co. v. Marlin , 186 S.W. 595, 596-5-

(Tenn. 1916). This

responsibility on the

part of the princ

ipal exists even where the i

njured party is “wholly a stranger” to the principal. Id. The question of whether an agency relationship exists and the scope of the agent’s authority are questions of fact. See Mays v. Brighton Ba nk , 832 S.W.2d 347 (Tenn. Ct. App. 199

2); Board of Directors of City of Harriman School Dist. v. Southwestern Petroleum Corp. , 757 S.W.2d 669 (Tenn. Ct. App. 1988).
Defendant

McElwaney asserts that a principal cannot be held l ia ble for the actions of an agent who is not a servan

t unless t hose actions are controlled or authorized by the principal. The difficulty with this conclusion is that Tennessee law presumes “that a lawy er has the authority to represent the person for

whom she or he appears.” In re Ellis , 822 S.W.2d 602, 606 (Tenn. Ct. App. 1 991). See also Kelly v. Walker , 346 S.W.2d 253, 256 (recognizing that an attorney is pre sume d to act with

his client’s conse

nt when agreeing

to the entry of a consent decree against his client, and that the client has the burden of proving that he did not consent to the entr

y of the decree

). In fact, we have said that “[l]awyers are agents and ha ve prima facie authority to speak for their client through pleadings and negotiations.” Simmons v. O’Charley’s, Inc. , 914 S.W.2d 895, 902 (Tenn. Ct. App. 1995) (citing Neil P. Cohen, et al., Tennessee Law of Evidence § 80 3(1.2) .4 at 402 (2d ed. 1990). See also Absar v. Jones , 83 3 S.W.2d 86 , 89 (Tenn. Ct. App. 1992). The Tennessee Supreme Court in In re Youngblood , 895 S.W.2d 322 (Te nn. 1995), observ

ed that:
The obligation to defend the insured under a contract of

insurance obviou

sly contemplates representation by counsel who can exercise professional judgment and devote complete loyalty

to the ins ured. . . The same loyalty is o wed the client whether the attorney is emplo yed and paid by the c

lient . . . or is a

n independent contractor engaged

by the insurer.
Id. at 328 (emphasis added). Under Youngblood , the fact that the insurance comp

any hires a

n attorney to represent its insured’s interests does not change the fact that the attorney owes his loyalty, above all else, to the insu

red. That loyalty

is the basis of the agency relationship between an attorney and client.
It is important t

o note that any presumption that the Richardson Firm represents Mr. McElwaney’s interests is a rebuttable one. See Ellis , 822 S.W.22d at 606. Clie nts have the ability to change lawyers or alter the scope of t heir lawyer’ s authority whenever they choose. See id. at 607. We have said that “the existence and scope of a lawyer’s authority to represent a client depends on the manner in which a client retains a lawyer in a particular case.” Id. T hese considerat ions would certainly be relevant at tr

ial, but, on a motion to dismiss, our primary concern is whether the Plaintiff has set out facts in her complaint which are sufficient to state a claim.
We agree with the tr

ial court that, as t

o Defendant McElwaney, Plaintiff has stated a clai

m upon which a court could find Mr. McElwaney liable for the actions of the Richardson Firm. In Paragraph 81 of h

er complaint, Plain

tiff alleges that: The Richardson Firm was at all times material hereto acting within the scope of its employment

as agent of both the Defenda

nts McElwaney and

Allstate, and the s

aid-6-

Defendants

are therefore

liable for the co

nduct of the Richa

rdson Firm desc

r ibed above under the doctrine of respondeat superior.
While this statement is

conclusory, if taken as true, Plaintiff has alleged facts sufficient for a court to find that Mr. McElwaney is liable for the actions of his attorneys.
We also hold that, as to

Defendant Allsta

te, the trial cour

t’s denial of Def

endants’ motion to dismiss was proper. In su pport of its position,

Allstate asserts t

hat the Ri chards on Firm was an independent

contractor, and that

there can be no attorney-client relationship between an insurance company and the attorney i t hires to defend its

insured. In suppor

t of this position, Alls

tate cites In re Youngblood , in which the Tenn essee Supreme Cou

rt wrote that :
The employme nt of an attorney by an insurer to represent the insured does not create the relationship of attorney-client between the insurer and the attorney , nor does that employment neces sarily impose upon t he attorney any d

uty or loyalty to the insurer which impairs the attorney-client relationship between the attorney and the insured or impedes the performance of legal services for the insured by the attorney. 895 S.W.2d at 328 (emphasis added). We do not take issue with the charac terization that A

llstate was notthe Richardson Fir m’s client. This, ho

wever, does not e

nd the inquiry into

whether Allstate may be held liable

for the Firm’s act

ions.
As we noted above, respondeat superior liability will attach where the principal has a right to control the actions of its agent. The fact tha t the Richards on Firm may have been Allstate’s independent

contractor does not preclude a finding of control. We have said that “[t]he term ‘agent’ has.

. . been given a broad interpretation. . . and is not inconsistent with the term ‘independent contractor’.” Dempster

Bros., Inc. v. U.S. Fidelity & Guaranty Co. , 388 S.W.2d 153, 156 (Tenn. Ct. App. 1964). In Howard v. Haven , 281 S.W.22d 480 (Tenn. 1955), the Court said:

Agency i n its bro adest sense “inc ludes every rela

tion in which one pe

rson acts for or represents another.” C. M. Keys Commission Co. v. Miller , 59 Okl. 42, 157 P. 1029, 1030; 2 Words

and Phrases,

Agency, p. 717. In Electric Light & Power Co. v. Bristo l Gas, El

ectric Light, etc., Co. , 99 Tenn. 371, 381, 42 S.W. 19, 21 there appears the post

ulate by Mr. Justice Caldwell, “What one does through another he does himself.”
Id. at 485.
Under these authorities, therefore, an independent contractor may be an agent where the principal has the ability to co

ntrol the independ

ent contractor’ s actions.
In response, Defendant Allstate cites, inter alia , Formal Ethics Opinion 88-F-113 (1988) for the proposition that it is unethical for an insurance company to direct the actions of an attorney hired to represent its in

sured. That opinio

n reads, in part:-7-

The attorney should de

vote his complete lo

yalty to the insured-client and not allow the insurer, or anyone else, to regulate, direct, con tro l or interfere w

ith his professional judgment.
We wholeheartedly agree. However, the fact that it would be unethic

al for the Richar

dson Firm to accept direction from Allstate does not mean that Allstate did not direct the Firm’s actions. In her complaint, Plaintiff alleges that Allsta

te fired H al Nichols and hired the Richardson Firm to represent Mr. McElwaney in the u

nderlying suit. Obv

iously, Allstate

had the authority to control the hiring and firing of Mr. McElwaney’s attorneys and, arguably, e ven though unethic

al, the actions of

those attorneys. Plaintiff has also alleged that the Richardson Firm acted as agent for Allstate, and that Allstate had a fina ncial stake in the outcome of the underlying litigation. Whether Plaintiff can prove the allega

tions of control at t

rial is immaterial i

n the context of a m

otion to dismiss. Having determined that Defendants may be held liable for the act ions of t he Richardson Firm, we must next review each cause of action that Plaintiff alleges would give rise to such liability. We first address whe

ther Plaintiff sta

tes a claim

that the Richardson Firm induced Plaintiff’s physician to brea

ch his confidential relationship with her or to invade Plaintiff’s privacy when the Firm interviewed Plaintiff’s physician prior to depositions in the underlying action. Inducing Breach

of a Confidential R

elationship
A confidential re

lationship exists be

tween a patient a

nd his o r her phys ician. See, e.g., Shadri ck v. Coker , 963 S.W.2d 726, 735 (Tenn. 1998); Roberts v. Chase , 166 S.W.2d 641, 65 0 (Tenn. Ct. App. 1942). Ho wever, Tenn essee follows the common law rule that no evidentiary privilege exists between a physician and his or her patient. See Quarles v. Suther land , 389 S.W.2d 249, 251 (Tenn. 1965). Even where an evidentiary privilege does exist, that privilege may be waived. See, e.g., Kirchner v. Mitsui & Co. (U.S.A.), Inc. , 184 F.R.D. 124, 128 (M.D. Tenn. 1998)(holding that statutory waiver to the psychiatrist-patient privilege applies where plaintiff has raisedthe i ss ue of her mental or emotional condition by seeking damages for emotional distress); Wright v. Wasudev , 1994 WL 642 785, No. 01-A-01-9404-CV00176, *5 (Tenn. Ct. App. 1994)(holding that “the institution of a personal in

jur y suit which presents issues requiring the disclosure of medical information effectively waives such physician-patient privilege as the injured party might assert

under Tennessee

laws or public

policy. . .”); Bryan v. State , 848 S.W.2d 72, 81 (Tenn Crim. App. 1992)(setting out a three-part test for wh en a party waives attorney-client privilege under Tennessee law) ; State v. Vilvarajah , 735 S.W.2d 837, 839 (Tenn. Crim. App. 1987)(holding that the psych iatrist-p atient privilege did not apply where murder defendant had given notice of insanity defense).
Plaintiff argues that there is a distinction between the evidentiary pr ivilege re jected in Quarles v. Sutherland

and the type of ex parte communications at i ssue in this case. We agree, but we believe the di

stinction does not a

lter the outcome in

this case. We hav

e said that: Any citizen, includin

g a physi cian, has a legal right to discuss any unprivileged matter with any person if he desires to do so.-8- There is no legal duty upon any citizen to engage in any discussion with the representativeof any litigant i n a ci vil matter. The only compulsory disclosure of facts in civil

litigation is by subpoe

na from a court w

hich has the power

to determine the limits and conditions of disclosure.
Wri ght , 1994 WL 642785 at *6. Therefore, if a physician has a duty to refrain from disclosing unprivilegedinfo r mation, that duty must be based upon something other than an evidentiary privilege. Plaintiff argues that such a duty arises from the ethical precepts by which a physician is bound. The Tennessee Supreme Court, however, rejected this argument in Quarles , noting that:

We are aware that physicians and surgeons are required by the ethics of their profession to preserve the secrets of their pat ients which have been communicated to them or learned from symptoms or examination of other bodily conditions

. However, under the common law. . . this ethical requirement is not enforceable by law

. . . 389 S.W.2d at 251 (emph asis added). Under Tennessee law, we find no basis for a cause of action for inducing a breach of duty of confidentiality.
Courts in other jurisdicti

ons have reache

d similar results. In a case remar kably similar to

the case before us, Brandt v. Medical Defense Assoc. , 856 S.W.2d 667 (Mo. 1993) , the Misso uri Supreme Court addressed

the issue of ex parte communication between physicia ns and third partie

s. Brandt involved two lawsuits: an underlying medical malpractice action and an action against the medical malpractice insurer and plaintiff’s phy sicians ba sed on breach of fiduciary duty and invasion of privacy. See id. The Brandt court held that:

. . . a physician has a fiduciary dut y of confiden tiality not to disclose any medical information received in connection with the treatment of the patient. We further hold that if any such information is disclosed under circumstances where thi s duty of confidentiality

has not been waived, the patient has a cau se of action for d

amages in tort against the physician.
We hold that the waive

r of the medical p

rivilege. . . whic

h occurs in a personal injury or medical malpra ctice case once

there is an issue joined concerning the plaintiff’s medical condition, is a waiver of both the testimonial privilege and the physician’s fiduciary duty of confidentiality. 856 S.W.2d at 674. The court went on to note that, if a physician refuses to participate in such ex parte communications,

the defendant would berequired to take the physician’s formal deposition to obtain information. See id. We agree with the reasoning of the Brandt court.
Under the above author

ities, we hold that a

plaintiff cannot s

tate a claim fo r breach of a confidential re

lationship where t

he plaintiff has w

aived hisor her rights

to confidentiality. Under the facts of this case, we hold that Plaintiff effe ctively waived her right to maintain the-9-

confidentiality

of her relations

hip with her physicians by making her physica l condition an issue

in the underlying personal injury action. Without a right to maintain

physician-patient confidentiality, Plaintiff cannot complain that the Defendants in this case induced the breach of any such relationship. Invasion of Privacy
Plaintiff also alleges that the Richardson Firm invaded her privacy , or ind uced others to invade her privacy, in se veral ways: by issu

ing illegal subpoen

as in the underlyin

g action to Plaintiff’s healthcare providers and hospital; and by speaking privately with Plaintiff’s healthcare providers. We will address these claims together.
Tennessee recognizes a common law right of action for invasion of privacy. See Martin v. Senators, Inc. , 418 S.W.2d 660, 662 (Tenn. 1967); Dunn v. Moto Photo, Inc. , 828 S.W.2d 747, 752 (Tenn. Ct. App. 1991). [Liability for invasion of

privacy] exists only if the conduct is such that a defendant should have realized it would be offensive to persons of ordinary sensibilities; and that it is only where the

intrusion has gone b

eyond the limits of de

cency that liabili

ty accrues,reasonable minds must agree that no such case is

made by the declaration.
Martin , 418 S.W.2d at 664. The four types of invasion of privac

y torts are: (1) in

trusion; (2) public disclosure of

private facts; (3) false light; and (4) appropriation for commercial purpose. See Beard v. Akzona, Inc. , 517 F.Supp. 128, 131 (E.D. Tenn. 1981). Based upon the allegat ions in the com pl aint, only a claim for invasion of privacy based on “intrusion” is applicable in this case. In Beard, the United States District Court for the Eastern District of Tennessee, citingthe Restatement Second of Torts, described the claim of intrusion:

Having been cited to no Tennessee cases explicitly defini ng this aspect of invasion of privacy, we defer to the statement of the law contained in R estatement Second of Torts, § 6

52B. That section pr

ovides:
One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of an other or his priva

te affairs or co

ncerns, is subject to l iability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.
Whether the information gained by reason of the in trusion was ever

publicized is irrelevant to this form of invasion of privacy. 517 F.Supp. at 131 (citations omitted).
In her complaint, Plaintiff alleges she suffered “great embarrassment, anger and stress over the k nowledge that the details of her most intimate revelations. . . had been made pub lic by th e-10-

conduct of the Richardson Firm.” Damages for such mental suffering are recoverable in tort actions such as invasion of privacy. See Dunn v. Moto Photo, Inc. , 828 S.W.2d 747, 751 (Tenn. Ct. App. 1991). However, to rec

over for mental s

uffering, the co

nduct must be outra

geous and must

result in serious mental injury. See id. These requirements reflect a balance between “the

interest a person has in being free from emotional disturbance” and the interest in “a judicial climate which does not become burdened with trivial lawsuits.” Id.
Given the two requirements set out in Dunn , we hold that Plainti ff has failed to st

ate a cause of action for invasion of privacy. Although Plaintiff’s claim that she suffered greatly could be construedas “serious” men tal injury, we do no

t find any allegat

ions in her complaint which ri

se to the requisite level of “outrageous” conduct on the part of the Richardson Firm. As this Court noted, “It is not enough in an a

ction of this

kind to allege a legal conclusion; the actionable c onduct should be set out in the declaration.” Id. at 751.
Even if Plaintiff had alleged the requisite levelof conduct, we believe Plaintiff waived any rightto ass e rt a claim of invas ion of privacy in th

e same manner in w

hich she waived he

r right to confide ntiality

in her relationships with her healthcare providers. The Tennessee Supreme Cour t definedthe common law right of privacy as, “the right to be let alone; the right of a person to be free f rom u nwarranted publicity.” Martin v. Senators, Inc. , 418 S.W.2d 660, 662-63 (Tenn. 1967)(quoting Langford v. Vanderb ilt University , 287 S.W.2d 32, 38 (Tenn. 1956)). In Martin , the Court went on to say:
As to waiver or re

linquishment, [Ame

rican Jurisprude

nce] says:
“The right of privacy, like other rights that rest in an individual, may be waived b y him. A waiver or relinquishment of this right, or of some aspect thereof, may be implied from the conduct of the parties and t he surrounding circumstances. The consent of an individu a l to the use of his picture and name for advertising purposes constitutes a waiver of his right of

privacy to that extent. And one who conse nts to the use

of his name by a corporation for the purposes of trade cannot recover, on the ground of invasion of privacy, on account of such use. . . . ” 41 Am.Jur. 937
418 S.W.2d at 663 (emph asis added). We beli

eve that, by making her medical condition an issue in this case, Plaintiff has effectively waived any right she has to assert a claim for invasion of privacy. We the

refore rever

se the trial court

’s ruling as to Plaint

iff’s invasion of p

rivacy claim. Breach of Expre

ss and Implied Contr

act Claims
Tennessee recognizes both a statuto ry and common law cause of action for inducing the breach of a contract. See Polk and Sullivan, Inc. v. United Cities Gas Co. , 783 S.W.2d 538, 542 (Tenn. 1989). The st

atutory and common law claims are identical except as to the amount of damages recoverable. See id.; Emmco Ins. Co. v. Beacon Mut. Indem. Co. , 322 S.W.2d 226, 2314 That section provid es: § 47-50-109. Inducement of breach of contract; damages

It is unl awful f or any person, by in

ducement,

persuasi on, misr epresent ation, or other means, to i nduc e or procure the breach or

violation,

refusal or failure to perform any lawful contract by any party thereto; and, in every case where
a breach or vi

olation of such c ontract

is so proc

ured, the person so procu ring or induc ing the same sh all be liable in treble the amount of damages resulting from or incident t o the breach of the cont ract. The party

injured by such

breach may bring suit for the breach and for such damages. -11- (Tenn. 1959). T.C.A. § 47-50-109 4 substitutes treble damages for punitive damages. See id. The requirements

of an inducement of breach of contract claim are: (1) a legal contract; (2) knowledge of the existence of the contract on the part of the wrongdoer; (3) intent to induce breach; (4) malice on the part of

the wrongdoer; (5) breach of contract; (6) proximate cause; and (7) damages. See McGaugh v. Galbrea

th , 996 S.W.2d 186, 193 (Tenn. Ct. App. 1998).
We have said that the r elationshi p between a physic ian and patient is a

contractual agr

eement, created when the patient knowingly se eks treatment an d the physician kno

wingly accepts th

e patient. See Jennings v. Case , 10 S.W. 3d 625, 628 (Tenn. Ct. App. 1999). This contract can be express or implied, and may be general or limited in its scope. See id. We havesaid that the cause of action for inducing a breach of contract can also apply to an implied co ntract. See Meff

ord v. City of Dupontonia , 354 S.W.2d 823, 826 (Tenn. Ct. App. 1961).
In the case

at bar, Plaintiff a

lleges she enter

ed into an expres s contract, as we ll as imp lie d contracts of confidentialit

y with her healthc

are providers. A

s to the express co

ntract, Pl aintif

f alleges that Dr. Holcomb r equired her to

execute a writte

n release of records form

which states, in pertinent part:
This is to authorize The Orthopedic Clinic to g ive a full medical report o

n my condition while under his observation or treatment to my attorney ______________. Otherwise this informat

ion is to be confidenti

al. ” (Emphasis

added). This, Plaintiff cla ims, created an e

xpress contract which o

bliged Dr. Holcomb to treat her medical records as confidential, and refrain from rel easi ng those records without her permission. We need not say, f or the purposes of

a motion to dismiss, tha

t this language created

an expresscontract

between the Plaintiff and Dr. Holcomb. We do, however, agree with the trial court that the Pl ainti ff’s allegation t hat such a contra

ct exists is suffic

ient in the context

of a motion to dismiss.5 That Ac t provides, in r elevant par t: (a)(1) Notwiths

tanding any othe r provisi on of law to the con trary, a health care provider shall furnish t o a patient
or a patient's authori

zed representative a copy or summary of such patien t's medical reco rds, at the op tion of the health care provider, wi

thin ten ( 10) working days upon r equest in wri

ting by th

e patient or s

uch representat

ive.

* * * (b)(1) Except as otherwise pro vid ed b y law , suc h pa tien t's medical records shall not co nstitute public records, and nothing

contain ed in thi s part s hall be deemed to imp air any privilege of confidentiality conferred by law on patients, their person al represen tatives or heirs.

6 That Ac t provides, in r elevant par t: § 68-11-1502. Expectation, right to pri vacy Every patient entering and receiv ing care at a he alth care facility licensed by the board for licensing health care facilities has the exp ectation of an d right to priva cy for care re ceived at suc h facility. § 68-11-1503. Name, addr ess, othe r identi fying infor

mation (a) The name and address and other identifying information of a patient shall not be divulged except for: (1) Any statutorily required reporting to he alth or government autho rities; (2) Access by an interested third-party payer (or designee) for the purpo se of utilization reviews, case management, pee r reviews, or other administrative functions;

(3) Access by health care providers from whom the patient receives or seeks care; and (4) if the patient does not object, any directory information includi ng only the name of the patient, t he pat ient 's general health status and the pati ent's location and

phone number. Directory information shall be rel eased to all inquirers only if the patient has been notified, upon admission to t he hospital, of the patient 's right t o object to the inform atio n which may be released

and has not objected; or, if the patient is in a physical or mental condition such that the patient is incapable of making an objection and the nex t of kin or patien t representativ e does no t come forw ard and o bject.

(b) The name and address and other identify ing informat

ion shall n

ot be sold for any

purpose. (c) Any violat

ion of this

provision shal

l be an invasi

on of the pati

ent's r ight to pri

vacy -12- Plaintiff also alleges that,

as a result of the Medical Records Act, T.C.A. § 63-2-101 5 , et seq., the Patient’s Privacy Act, T.C.A. §§ 68-11-1501 6 , et seq., as well as the ethical principles by which healthcareproviders are bo und, implied contra

cts of confid

en tiality existed between Plaintiff and her healthcare providers. Defendants cite Mefford, supra , for the proposition that the contract betweena healthcare provider and his or her patient is an “implied at

law” contract and therefore not actionable

under a claim of inducement of breach of contract. While we agree that an implied at law contract is not actionable under the common law or T.C.A. § 47-50-109, we disagree wit h Defendants

that the relations

hip between Plaint

iff and her physic

ian is such a contr

act. In Mefford, the Court describe

d a contract implie

d in fact:
In Weatherly v. American Agricultural Chemical Co. , 16 Tenn.App. 613, 65 S.W.2d 592, we said that contracts implied in fact arise under circumsta

nces which, acc

ording to the ordinary cou

rseof dealings and common understanding of men, show mutual intention7 Plaintiff also allege s such knowledge bas ed upon the ethical requirements of

the medical

profession. However, as discussed ear

lier, breac

h of these et

hical consi

derations is

not actionable

under Tennessee law. -13- to contrac t, and may result as legal inferences from the fact and circumstances of the case. And in Noon v. Fisher , D.C., 45 F. Supp. 653, it was stated that the difference between an exp ressed and implied contract lies merely in the mode of manifesting assent in that in the former, assent is set out in words or other mode of expression, whereas in the latter, assent is shown by the conduct of the part ie s. Thus it appears that in order that a contrac t may be imp lied in fact, the facts and cir

cumstances of the

case must show ass

ent. 354 S.W.2d at 826. On the other hand, an implied at law contract is a quasi contract defined as a:

[l]egal fiction invented by common law courts to permit recovery by contractual remedy in cases where, in fact, there is no co ntract, but where circumstances are such tha t justice warrants a recovery as though there had been a promise.
Black’s Law Dictionary

324 (6th ed. 1990). Th

e allegations of th

e complaint are s

ufficient to

set forth an express

or implied in fact c

ontract.
Our Supreme Court, in dicta, has indicated that “the only possible sounding” of an action for wrongful disclosure “would be under the allegations that there was an implied contract between the parties. . . .” Quarles , 389 S.W.2d at 252. Given the Quarles co urt’s rejection of a common law cause of action based on a breach of ethical duty, however, the basis for a co ntractual claim w

ould most likely be a breac

h of fiducia

r y duty to maintain doctor-patient confidentiality. See, e.g., Turner v. Leathers , 232 S.W.2d 269, 271 (Tenn. 1950)(noting that con fi dential and fiduciary relations include the physician-pa

tient relationship

); McClellan v. Stanley , 978 S.W.2d 943, 945 (Tenn. Ct. App. 1998)(holding tha

t a d octor is his patient

’s fiduciary, an

d noting that requir

ing patients to question their doc

tors’ actions would destroy the trust necessary for proper trea

tment); Hall v. De Saussure , 297 S.W.2d 81, 86 (T enn. Ct. App. 1956) (noting that a physi cian “is in a position of trust and confidence as regards the patient. . . .”) Of course, for Plaintiff to recover base d on such a contract,she will have to prove the existence of those implied contracts by a preponderance of the evidence. See Mefford, 354 S.W.2d at 826. We hold only that Plaintiff has sufficiently alleged the existence of contracts which, if they exist, meet the requirements of a cause of action for inducing a breach of con

tract. As to the remaining elements of an action for inducing breach of a contract, we also find that Plaintiff alleges facts which, if taken as true, could sustain such an action. Plaintiff alleges that the Richardson Firm was aware of the existence of the alleged contracts based

upon the widespre

ad use of medical release forms containing similar language to Dr. H

olcomb’s form,

and the existence of the Medical Records

Act. 7 Similarly, Plaintiff alleges thatthe Richardson Firm acted intentio nally and maliciously in its attempts to secure Plaintiff’s medical records fro m her heal thcare-14-

professionals.

Plaintiff further alleg es that these expr ess and implied con

tracts were, in f

act, breached, and t

hat the Richardso

n Firm’s actions we

re the proximate

cause of the bre

aches. Finally, Defendants assert that Plaintiff has failed to show actionable damages for the alleged breach. We disagree. Construing Plaintiff’s complaint in the light most favorable to her position, Plaintiff has alleged that Defendants’ conduct has put her at a strategic disadvantage, and has caused her to suffer emotional damage, as well as monetary l osses. For the purp

oses of a motion to

dismiss, these allegations are sufficient.
Abuse of Process C

laim
Tennessee recognizes two types of tort actions for misuse of lega l process: abuse o

f process an d malicious prosecution. See Bell ex rel Snyde r v. Icard, Merrill, Cullis, Timm, Furen and Ginsburg, P.A. , 986 S.W.2d 550, 555 (Tenn. 1999). A claim for abuse of process alleges that the processhas been used improperly after it has been issued, whereas a claim for malicious prosecution alleges that the plaintiff has maliciously sued the defendant without probable c ause. See id. Our Supreme Court has s

aid that:
To establish a claim for abuse of process in Tennessee, as in a majority of othe r jurisdictions,

two elements must be alleged: “(1) the existence of an ulterior motive; and (2) an act

in the use of process other than such as would be proper in the regular prosecution of the charge.”
Id. ( quoting Priest v. Union Agency , 125 S.W.2d 142, 143 (Tenn. 1939)). The Cou rt went o n to say: As this Court emphasized in Priest ,

The test as to wh eth er there is an abuse of process is whether the processhas beenused to accomplish some end which is without the regular purview of the process, or which compels the party ag ainst whomit is use d to do some collateral thing which he could not legally and regularly be compelled to do.
174 Tenn. at 307, 125 S.W.2d at 144. Abuse of process does not occur unl ess the "process is perverted, i.e., directed ou tside of its lawful course to the accomplishment of some object other

than that for whic

h it is provided." Id. The mere existence of an ulterior motive in doing an act, proper in itself, is not sufficient. Id. An action for abuse of process cannot be sustained where the process was employed to perform no other function t han that intended by law. Id. The bad intent must culminate in an actual abuse of the process "by perverting it to a use to obtai n a result which the process was not intended by law to effect." Id. at 308, 125 S.W.2d at 144 . "Th e improper purpose usually takes the form of coercion to obtain a collateral advantage, n otproperly involved in the proceeding itself, such as the surrender of p roperty o r-15-

the payment of money, by the use of the process as a thr eat or a club." [W. Page Keeton et al., Prosser and Keeton on t he Law of Torts § 121 at 897 (5th ed. 1984).] Id.
Plaintiff’s complaint appears to allege abu se of process based upon the Richardson Law Firm’s actions in: (1) issuing interrogatories in excess of the limit set out in the local court rules; (2) engaging in overly intense q uestionin g of Plaintiff during her deposition; and (3) issuing illegal subpoenas. We find that, as to the above allegations, o nly the claim of issuing illegal subpoenas states a claim of a

buse of process.
Plaintiff’s complaint correctly points out that the Richardson Firm exceeded the number of interrogatories permitted under Rule 12(b) of the Local Rules of the Circuit Court of Tennessee for the Thirtieth Judic

ial District. Rule 1 2(b) provides: (b) No party shal l serve on any other party more than thirty (30) interrogatories withoutleave of court.

For purposes of this Rule

a sub-part of an i

nterrogatory sha

ll count as an additional interrogatory. Any motion seeking permission to serve more than thirty interrogatories shall set out the additional interrogatories the party wishes to serve, together with the reasons establ ishing good cause for the service of additional interrogatories. If a party is served with more t

han thirty interro

gatories, without order of the court, he shall respond only to the first thirty. However, Plaintiff’s complaint admits that the Richardson Firm soughtand obtained a court order in compliance with the Rule. Plaintiff’s compla int also admits that,

while the Firm submitted more interrogatories without such a court order, Plaintiff responded to these interrogatories “rather than make an i ssue of the exce ssiveness of the r

equest.” We bel

ieve that in answe

ring and failin

g t o object to these additional interrogatories, Plaintiff has waived any right to now complain they were excessive and, t

herefore, fai

ls to state a claim f

or abuse of proc

ess as to the interr

ogatories.
Plaintiff also alleges that the Richardson Firm’s deposition of Plaintiff delved into “trivia

l” ailme nts, was excessively long, and involved overly personal questions regarding the Plaintiff’s private life. Rule

30.04 of the Tenne

ssee Rules of Civil Pr

ocedure provide

s: At any time during the taking of the deposition, on motion of a party or of the deponent and upon a showing t

hat the examinatio

n is being conducted in bad f aith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party, the court in which the actionis pending may order the officer conducting the examination to cease forthw ith from taking the d

epositio n, or may limit the scope and manner of the taking of the deposition as provided in Rule 26.03. Again, we note th at there is no indication that Plaintiff availed herself of the recourse the Rules provide. Under these circumstances, we must find that any claim for abuse of process based upon Plaintiff’s deposition is waived.-16-

Finally, Plaintiff claims the Richardson Firm is

liable for abuse of process because it issued “illegal” subpoenas to Plainti

ff’s healt hcare p roviders. Plaintif f’s complaint alle

ges that these subpoenas were illegal for two reasons. First,

Plaintiff alleges

that the Defenda

nts violated Tenn. R. Civ. P. Rul e 4 5.07 because the subpoenas the Richardson Firm issued to Plaintiff’s healthcare providers gave the healthcare providers the option of sending their records directly to the Richardson Firm in lieu of depos

ition. That rule pr

ovides: Every su bpoena iss ued and served under any part of this Rule 45 for testimony, boo ks, papers, documents, or tangible things must command the witness to appear at a trial, hearing, or deposition unless otherwise provided by statute or by agreement of all parties.
Tenn. R. Civ. P. Rule 45.07. The Advisory Commission Co mment toRule 45.07 indicates that the revisedrule was intended to pre vent attorneys fr om issuing subpoena

s and obtaining doc

uments withoutinforming opposing counsel. If, as Plaintiff alleg es, the Richardson Firm did not obtain her consent to having the healthcare providers submit medical records in lieu of deposition, the Firm’s actions in issuing the subpoenas could certainly be considered an act which does not fall under the purview of “p roper” process. See Bell , 986 S.W.2d at 555. Although Defendants argue that Plaintiff did agree to these subpoenas, we believe this is an issue of fact which will 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 ulter i or motive, namely, discouraging Plaintiff from vigorously prosecuting the underlying action, is sufficient to state a claim for abuse of process.
Plaintiff also alleges that t

he above subpoen

as were illegal b

ecause th ey violated the Patient’s Pr ivacy Protection Act, T.C.A. § 68-11-1501, et seq. The Act, specifically T.C.A. § 68-11-1 505 , provides that, “Nothing in thi s part shall be con

strued as p

rohibiting 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 except ion. The same coul

d be said for T.C.A. § 68-11-405, which permits release of hospi ta l 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 Def e ndants’ motions to dismiss as to the ca uses of action for inva

sion of privacy an

d inducing the bre

ach of a confide

ntial relationship

is reversed and the order in

all other respec

ts is affirmed. Cost

s of the appeal ar

e 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.

__________________________________________ W. FRANK CRAWFORD, PRESIDING JUDGE, W.S

.