WILLIAM C. KOCH, JR., J., delivered the opinion of the Court, in which CORNELIA A. CLARK, and SHARON G. LEE, JJ., joined. GARY R. WADE, J., filed a dissenting opinion, in which JANICE M. HOLDER, C.J. joined.
This appeal involves the application of the Tennessee Peer Review Law of 1967 [Tenn.Code Ann. § 63-6-219 (Supp.2009)] to a hospital system's business decision regarding the provision of vascular access services to patients in its member hospitals. The hospital system had customarily outsourced these services at several of its hospitals, but, following an audit, it decided to discontinue outsourcing the services and to begin providing them using nurses employed by its own hospitals. After several of the system's hospitals cancelled their vascular access services contracts, the vendor that had been providing the services filed two suits in the Circuit Court for Sumner County against the manufacturer of the catheters used to provide the services and one of its employees, a staffing affiliate of the hospital system and two of its employees, and the chief nursing officer at one of the system's hospitals. These suits, which were eventually transferred to the Circuit Court for Williamson County and consolidated, sought damages under numerous theories based on the vendor's allegations that the defendants, all of whom had played a role in the audit, had disparaged the manner in which it had been providing the vascular access services and had improperly interfered with its contracts. During discovery, the vendor sought copies of various records relating to the audit of its services. The defendants claimed that these records were covered by the privilege in Tenn.Code Ann. § 63-6-219(e). After reviewing the disputed records in chambers, the trial court determined
HCA, Inc. owns and operates the TriStar Health System that consists of twenty-one hospitals in three states. Since 1997, several of the hospitals in the TriStar Health System located in Middle Tennessee outsourced their vascular access services
In July 2005, the TriStar Health System's CNO Council
In November 2005, while All About Staffing's review of vascular access services was proceeding, Lee Medical submitted a revised contract for services to Cathy Philpott, the chief nursing officer at Hendersonville Medical Center, one of the hospitals in the TriStar Health System. Upon receipt of this contract, Ms. Philpott began evaluating Lee Medical's performance at Hendersonville Medical Center.
Lee Medical used catheters manufactured by Bard Access Systems, Inc. ("Bard") in its provision of vascular access services at the TriStar hospitals. Accordingly, All About Staffing sought Bard's assistance with its evaluation of the vascular access services being provided at the TriStar hospitals. Bard's help took two forms. First, two Bard representatives— Heather Chambers
The record does not precisely define the sequence of events involving TriStar's consideration of All About Staffing's report. According to TriStar's Vice President for Quality and Clinical Performance, the CNO Council "determined that, from a clinical standpoint, the HCA/TriStar Hospitals should bring this service in house and use AAS-staffed
In June or July 2006, the president of Lee Medical contacted Paula Beecher, All About Staffing's Regional Vice President for Operations, to discuss entering into a contract to provide vascular access services for the other TriStar hospitals that were not already under contract with Lee Medical. Ms. Beecher invited Lee Medical to submit a proposal. The record contains no indication that Lee Medical was aware that TriStar had been considering bringing vascular access services in house for almost one year.
As a result of the decisions made by its CNO Council and CFO Council, the TriStar System decided to terminate the existing contracts with Lee Medical in due course. Lee Medical submitted a "Proposal for Services" to Ms. Beecher on August 1, 2006, along with an unsolicited confidential report containing "data outcomes related to the quality of services" that Lee Medical had provided at Hendersonville Medical Center and Skyline Medical Center. However, in light of TriStar's decision to perform the vascular access services in house, All About Staffing did not contract with Lee Medical to provide these services at other TriStar hospitals. The record is unclear about when or how All About Staffing or TriStar communicated this decision to Lee Medical.
On October 23, 2006, Tennessee Christian Medical Center became the first TriStar hospital to cancel its contract with Lee Medical.
Lee Medical was not reassured.
On April 18, 2007, Lee Medical filed suit in the Circuit Court for Sumner County against Bard and Mses. Alsbrooks, Chambers, and Philpott.
Lee Medical also commenced an aggressive discovery campaign on the day it filed its first complaint. It had subpoenas duces tecum issued; it served lengthy interrogatories; and it gave notice of taking depositions from parties and non-parties. Lee Medical believed that TriStar's decision to stop outsourcing vascular access services was the result of defamatory remarks about the quality of its services made by Mses. Alsbrooks, Beecher, Chambers, and Philpott, and that their conduct had been instigated by All About Staffing and Bard who desired to wrest away TriStar's business. Accordingly, the purpose of this discovery was to obtain information regarding the basis for TriStar's decision to stop outsourcing vascular access services and to terminate its contracts. Lee Medical believed that the Bard Report was "at the center" of the litigation.
The defendants and the two non-parties who had received subpoenas and notices of depositions
The defendants and the non-parties also provided Lee Medical with privilege logs in accordance with Tenn. R. Civ. P. 26.02(5) identifying the categories of items that they believed to be privileged. Ms. Philpott's privilege log identified fifteen items. The privilege log submitted by Hermitage Medical Center and Mr. Esposito identified eighteen items, eleven of which also appeared in Ms. Philpott's privilege log. The privilege log submitted by All About Staffing and Ms. Beecher contained nine items, seven of which also appeared on Ms. Philpott's privilege log.
Lee Medical was dissatisfied with the responses to its discovery requests, particularly
Ms. Beecher and All About Staffing moved to dismiss the complaint against them on the ground of improper venue. In response, Lee Medical moved to consolidate its complaint against Ms. Beecher and All About Staffing with its complaint against Bard and Mses. Alsbrooks, Chambers, and Philpott. On January 9, 2008, the Circuit Court for Sumner County transferred both cases to the Circuit Court for Williamson County in accordance with Tenn.Code Ann. § 16-1-116 (2009). Thereafter, on May 7, 2008, the trial court in Williamson County consolidated the cases.
On May 8, 2008, the trial court directed the defendants and the non-parties to submit the withheld records identified in their privilege logs for inspection by the court in chambers. Following a hearing on May 19, 2008, the trial court entered an order on June 5, 2008, addressing the discovery of the disputed records. The court first determined that the TriStar CNO Council, the TriStar CFO Council, and the Hendersonville Medical Center's Quality Management Council were medical review committees as defined in Tenn.Code Ann. § 63-6-219(c). Turning its attention to the records covered by the privilege logs, the trial court concluded that two of the fifteen items retained by Ms. Philpott should be produced. However, the court specifically determined that the Bard Report was shielded from production by Tenn.Code Ann. § 63-6-219(e). The trial court concluded that none of the items on the privilege log submitted by All About Staffing and Ms. Beecher were discoverable.
The trial court also determined that three of the eighteen items included on the privilege log submitted by Hendersonville Medical Center and Mr. Esposito should be produced. However, the trial court deferred ruling on the production of two remaining items and on the question of whether Lee Medical was entitled to limited discovery regarding its malice claim and its claim that it was entitled to a hearing before the cancellation of its contracts.
The parties submitted additional briefs, and on June 30, 2008, the trial court conducted a hearing with regard to the remaining disputed issues. On July 21, 2008, the court directed Hendersonville Medical Center and Mr. Esposito to produce the two remaining unresolved items on its privilege log and reaffirmed its decisions with regard to all the other items on all the privilege logs.
The trial court's two clear and definitive discovery orders did not end the parties' discovery skirmish. They continued to trade motions to compel, motions for contempt and sanctions, and motions for protective orders. Lee Medical filed a timely application for permission to pursue a Tenn. R.App. P. 9 interlocutory appeal. On October 27, 2008, the trial court granted Lee Medical permission to seek an interlocutory appeal; however, on December 4, 2008, the Court of Appeals denied Lee
This appeal involves a pretrial discovery dispute. The sole issue presented is whether the trial court erred by refusing to order the discovery of the Bard Report and other records sought by Lee Medical that relate to TriStar's decision to stop outsourcing the vascular access services at its hospitals. Because decisions regarding pretrial discovery are inherently discretionary, they are reviewed using the "abuse of discretion" standard of review. Doe 1 ex rel. Doe 1 v. Roman Catholic Diocese of Nashville, 154 S.W.3d 22, 42 (Tenn.2005); Benton v. Snyder, 825 S.W.2d 409, 416 (Tenn.1992); Loveall v. Am. Honda Motor Co., 694 S.W.2d 937, 939 (Tenn.1985).
The abuse of discretion standard of review envisions a less rigorous review of the lower court's decision and a decreased likelihood that the decision will be reversed on appeal. Beard v. Bd. of Prof'l Responsibility, 288 S.W.3d 838, 860 (Tenn. 2009); State ex rel. Jones v. Looper, 86 S.W.3d 189, 193 (Tenn.Ct.App.2000). It reflects an awareness that the decision being reviewed involved a choice among several acceptable alternatives. Overstreet v. Shoney's, Inc., 4 S.W.3d 694, 708 (Tenn. Ct.App.1999). Thus, it does not permit reviewing courts to second-guess the court below, White v. Vanderbilt Univ., 21 S.W.3d 215, 223 (Tenn.Ct.App.1999), or to substitute their discretion for the lower court's, Henry v. Goins, 104 S.W.3d 475, 479 (Tenn.2003); Myint v. Allstate Ins. Co., 970 S.W.2d 920, 927 (Tenn.1998). The abuse of discretion standard of review does not, however, immunize a lower court's decision from any meaningful appellate scrutiny. Boyd v. Comdata Network, Inc., 88 S.W.3d 203, 211 (Tenn.Ct.App.2002).
Discretionary decisions must take the applicable law and the relevant facts into account. Konvalinka v. Chattanooga-Hamilton County Hosp. Auth., 249 S.W.3d 346, 358 (Tenn.2008); Ballard v. Herzke, 924 S.W.2d 652, 661 (Tenn.1996). An abuse of discretion occurs when a court strays beyond the applicable legal standards or when it fails to properly consider the factors customarily used to guide the particular discretionary decision. State v. Lewis, 235 S.W.3d 136, 141 (Tenn.2007). A court abuses its discretion when it causes an injustice to the party challenging the decision by (1) applying an incorrect legal standard, (2) reaching an illogical or unreasonable decision, or (3) basing its decision on a clearly erroneous assessment of the evidence. State v. Ostein, 293 S.W.3d 519, 526 (Tenn.2009); Konvalinka v. Chattanooga-Hamilton County Hosp. Auth., 249 S.W.3d at 358; Doe 1 ex rel. Doe 1 v. Roman Catholic Diocese of Nashville, 154 S.W.3d at 42.
To avoid result-oriented decisions or seemingly irreconcilable precedents, reviewing courts should review a lower court's discretionary decision to determine (1) whether the factual basis for the decision is properly supported by evidence in the record, (2) whether the lower court properly identified and applied the most appropriate legal principles applicable to the decision, and (3) whether the lower court's decision was within the range of acceptable alternative dispositions. Flautt & Mann v. Council of Memphis, 285 S.W.3d 856, 872-73 (Tenn.Ct.App.2008) (quoting BIF, a Div. of Gen. Signal Controls, Inc. v. Service Constr. Co., No. 87-136-II, 1988 WL 72409, at *3 (Tenn.Ct. App. July 13, 1988) (No Tenn. R.App. P. 11
The discretionary decision at the center of this discovery dispute is the trial court's acceptance of the defendants' assertions that a number of the records sought by Lee Medical are protected from discovery by the privilege in Tenn.Code Ann. § 63-6-219(e). There are several other legal principles particularly applicable to claims of privilege in civil cases.
The first principle is that Tennessee's discovery and evidentiary rules reflect a broad policy favoring discovery of all relevant, non-privileged information. Harrison v. Greeneville Ready-Mix, Inc., 220 Tenn. 293, 302, 417 S.W.2d 48, 52 (1967); Wright v. United Servs. Auto. Ass'n, 789 S.W.2d 911, 915 (Tenn.Ct.App.1990). This policy enables the parties and the courts to seek the truth so that disputes will be decided by facts rather than by legal maneuvering. White v. Vanderbilt Univ., 21 S.W.3d at 223. This policy is also reflected in Tenn. R. Evid. 501 which embodies the general concept that evidence should ordinarily be made available to the trier of fact to facilitate the ascertainment of the truth. Neil P. Cohen et al., Tennessee Law of Evidence § 5.01, at 5-12 (5th ed. 2005); see also Univ. of Pa. v. EEOC, 493 U.S. 182, 189, 110 S.Ct. 577, 107 L.Ed.2d 571 (1990) (declining to exercise authority to create privileges expansively).
The second principle is that privileges present obstacles to the search for the truth. VIII John H. Wigmore, Evidence § 2196, at 111 (McNaughten Rev. 1961) (hereinafter "Wigmore"); see also 23 Charles A. Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure § 5422, at 677 (1980). They are not designed or intended to facilitate the fact-finding process or to safeguard its integrity. Rather than illuminating the truth, their effect is to "shut out the light." 1 McCormick on Evidence § 72, at 339 (Kenneth S. Broun, ed., 6th ed. 2006) (hereinafter "McCormick"). Privileges protect "interests and relationships which, rightly or wrongly, are regarded as of sufficient social importance to justify some sacrifice of the availability of evidence relevant to the administration of justice." McCormick, § 72, at 339; see also Trammel v. United States, 445 U.S. 40, 50, 100 S.Ct. 906, 63 L.Ed.2d 186 (1980) (privileges are accepted "only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining the truth.") (quoting Elkins v. United States, 364 U.S. 206, 234, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960) (Frankfurter, J., dissenting)).
The third principle is that the rules of evidence generally disfavor privileges in civil proceedings. State ex rel. Flowers v. Tenn. Trucking Ass'n Self Ins. Group Trust, 209 S.W.3d 602, 616 n. 13 (Tenn.Ct.App.2006); Wigmore, § 2192, at 72-73. While courts must construe and apply statutory privileges according to their plain meaning, both federal and state courts frequently note that privileges should not be broadly construed because they are in derogation of the public's "right to every man's evidence." Edward J. Imwinkelried, The New Wigmore: Evidentiary Privileges §§ 3.2.2, at 129-30 & 4.3.3, at 248 (2002) (quoting Wigmore,
The trial court's decisions regarding the discovery of the materials sought by Lee Medical implicate the evidentiary privilege in the Tennessee Peer Review Act of 1967. The current statute differs markedly from the original one because of the eleven amendments since the original statute's enactment forty-three years ago. These amendments have broadened the application of the statute at the expense of its clarity. In previous cases, the courts have noted that the statute contains syntax errors
This case brings to the fore another significant internal conflict in the statute that affects the application of the privilege in Tenn.Code Ann. § 63-6-219(e). The conflict cannot be resolved by considering the text of the statute alone. After employing the recognized principles of statutory construction, we have determined that the privilege in Tenn.Code Ann. § 63-6-219(e) applies only to peer review proceedings before a peer review committee as defined in Tenn.Code Ann. § 63-6-219(c) that involve a physician's conduct, competence, or ability to practice medicine.
When courts are called upon to construe a statute, their goal is to give full effect to the General Assembly's purpose, stopping just short of exceeding its intended scope. Larsen-Ball v. Ball, 301 S.W.3d 228, 232 (Tenn.2010); In re Estate of Tanner, 295 S.W.3d 610, 613 (Tenn.2009). Because the legislative purpose is reflected in a statute's language, the courts must always begin with the words that the General Assembly has chosen. Waldschmidt v. Reassure Am. Life Ins. Co., 271 S.W.3d 173, 176 (Tenn.2008). Courts must give these words their natural and ordinary meaning. Hayes v. Gibson County, 288 S.W.3d 334, 337 (Tenn.2009). And because these words are known by the company they keep, courts must also construe these words in the context in which they appear in the statute and in light of the statute's general purpose. State v. Flemming, 19 S.W.3d 195, 197 (Tenn.2000); State ex rel. Comm'r of Transp. v. Medicine Bird
When a statute's text is clear and unambiguous, the courts need not look beyond the statute itself to ascertain its meaning. Green v. Green, 293 S.W.3d 493, 507 (Tenn.2009); State v. Strode, 232 S.W.3d 1, 9-10 (Tenn.2007). Statutes, however, are not always clear and unambiguous. Accordingly, when the courts encounter ambiguous statutory text—language that can reasonably have more than one meaning
Conflicting provisions in a statute may create ambiguity. In this circumstance, the courts should endeavor to give effect to the entire statute by harmonizing the conflicting provisions, Hill v. City of Germantown, 31 S.W.3d 234, 238 (Tenn. 2000); State v. Odom, 928 S.W.2d 18, 30 (Tenn.1996), and by construing each provision consistently and reasonably. Sallee v. Barrett, 171 S.W.3d 822, 828 (Tenn.2005); In re D.L.B., 118 S.W.3d 360, 365 (Tenn. 2003). The courts should avoid basing their interpretation on a single sentence, phrase, or word, Westinghouse Elec. Corp. v. King, 678 S.W.2d 19, 23 (Tenn.1984), but should instead endeavor to give effect to every clause, phrase, or word in the statute. Cohen v. Cohen, 937 S.W.2d 823, 828 (Tenn.1996). The courts' goal is to construe a statute in a way that avoids conflict and facilitates the harmonious operation of the law. Frazier v. E. Tenn. Baptist Hosp., Inc., 55 S.W.3d 925, 928 (Tenn. 2001); In re Audrey S., 182 S.W.3d 838, 869 (Tenn.Ct.App.2005).
The rules of statutory construction permit the courts to employ a number of presumptions with regard to the legislative process. The courts may, for example, presume that the General Assembly used every word deliberately and that each word has a specific meaning and purpose. State v. Hawk, 170 S.W.3d 547, 551 (Tenn.2005); Johnson v. LeBonheur Children's Med. Ctr., 74 S.W.3d 338, 343 (Tenn.2002). The courts may also presume that the General Assembly did not intend to enact a useless statute, State v. Jackson, 60 S.W.3d 738, 742 (Tenn.2001), and that the General Assembly "did not intend an absurdity." Fletcher v. State, 951 S.W.2d 378, 382 (Tenn.1997).
With specific regard to the legislators' knowledge of the existing law affecting the subject matter of the legislation, the courts may presume that the General Assembly knows the "state of the law." Murfreesboro Med. Clinic, P.A. v. Udom, 166 S.W.3d 674, 683 (Tenn.2005). In addition, the courts may presume that the General Assembly is aware of its own prior enactments, Colonial Pipeline Co. v. Morgan, 263 S.W.3d 827, 836 (Tenn.2008). The courts may likewise presume that the General Assembly is aware of the manner in which the courts have construed the statutes it has enacted. Hicks v. State, 945 S.W.2d 706, 707 (Tenn.1997); McKinney v. Hardwick Clothes, Inc., 217 Tenn. 457, 458, 398 S.W.2d 265, 265 (1966).
When courts are attempting to resolve a statutory ambiguity, the rules of statutory construction authorize them to consider matters beyond the text of the
Today's version of the Tennessee Peer Review Law of 1967 in Tenn.Code Ann. § 63-6-219 bears little resemblance to the statute first enacted forty-three years ago. The Tennessee General Assembly has amended the statute eleven times. Some of the amendments have been specific and precise. Others, however, have been broad and open-ended. Several of the amendments, while internally consistent, do not have a close fit with related provisions in the statute.
In its current form,
The ability of the litigants and the courts to apply the evidentiary privilege in Tenn.Code Ann. § 63-6-219(e) has been undermined by conflicting and ambiguous provisions in the statute itself. The first two sentences of Tenn.Code Ann. § 63-6-219(e),
The tension between the "everything is privileged" and the "nothing is privileged" language in Tenn.Code Ann. § 63-6-219(e) is complicated by the General Assembly's steady expansion of the definition of "peer review committee" in Tenn.Code Ann. § 63-6-219(c). The repeated broadening of the definition in Tenn.Code Ann. § 63-6-219(e) has created the impression that the General Assembly likewise intended to expand the scope of the privilege in Tenn. Code Ann. § 63-6-219(e). This impression is reflected in the parties' arguments in this case. They have drawn the battlelines over whether the TriStar CNO Council and the TriStar CFO Council are "peer review committees" as defined in Tenn. Code Ann. § 63-6-219(c).
While the issue regarding whether a particular committee fits within the definition in Tenn.Code Ann. § 63-6-219(c) must necessarily be addressed in the process of determining whether records are privileged under Tenn.Code Ann. § 63-6-219(e), it is not the only issue that must be addressed. Decisions regarding the application of the privilege must take into account: (1) the subject matter of the proceeding, (2) the nature and source of the
We begin our analysis of Tenn.Code Ann. § 63-6-219 with the candid observation, echoing the previous characterizations of this Court and the Court of Appeals, that the statute is far from clear and unambiguous.
The language added to the statute in 1992 provides a significant interpretative cue to the proper application of Tenn.Code Ann. § 63-6-219(e). This amendment made three pivotal changes in the statute. First, it added Tenn.Code Ann. § 63-6-219(a), thereby giving the statute its popular name—"Tennessee Peer Review Law of 1967." Second, it added the operative purpose and application section in Tenn. Code Ann. § 63-6-219(b). Third, it included the term "peer review committee" as one of the terms defined in Tenn.Code Ann. § 63-6-219(c). The effect of these changes was to sharpen the focus of the statute.
THE ADDED EMPHASIS ON "PEER REVIEW"
We must presume that the General Assembly chose the term "peer review" carefully and deliberately in 1992. The common meaning of the word "peer" refers to a person of equal civil standing or rank, a contemporary, or a member of the same age-group or social set.
Tenn.Code Ann. § 63-6-219(b)(1) states that the purpose of the privilege in Tenn. Code Ann. § 63-6-219(e) is to "encourage
Our conclusion that the word "peers" in Tenn.Code Ann. § 63-6-219(b)(1) refers to licensed physicians is buttressed by the references in Tenn.Code Ann. § 63-6-219(b)(2) to the "medical profession" and to the explicit authority to review "physicians' fees." Likewise, the general immunity provisions in Tenn.Code Ann. § 63-6-219(d)(1) refer to "[p]hysicians health programs and physicians health peer review committees." Finally, Tenn.Code Ann. § 63-6-219(d)(2), which contains the exception to immunity for knowingly providing false information, is limited to proceedings of "a medical review committee regarding the competence or professional conduct of a physician."
THE EXPANSION OF THE DEFINITION OF "PEER REVIEW COMMITTEE"
The original 1967 version of the statute did not contain a definitional section. The General Assembly adopted the first statutory definition in 1975 when it defined the interchangeable terms "medical review committee" or "committee." The General Assembly broadened the scope of the definition in 1983
In 1992, the General Assembly amended the terms being defined in Tenn.Code Ann. § 63-6-219(c) to include "peer review committee" as well as "medical review committee." As a result of the 1992 amendment, the same statutory definition applied to both "peer review committee" and "medical review committee." Thus, the terms "peer review committee" and "medical review committee" are interchangeable insofar as the statutory definition is concerned. For the purpose of this opinion, we have and will refer to the committees defined in Tenn.Code Ann. § 63-6-219(c) as "peer review committees."
The General Assembly amended the definition in Tenn.Code Ann. § 63-6-219(c) two more times after 1992.
However, the General Assembly's decision to broaden the scope of the definition of "peer review committee" in Tenn.Code Ann. § 63-6-219(c) does not necessarily mean that the General Assembly also intended to broaden the scope of the privilege in Tenn.Code Ann. § 63-6-219(e). To
Courts construing ambiguous statutes may also consider matters beyond the text of the statute. Our conclusions regarding the scope of the privilege in Tenn.Code Ann. § 63-6-219(e) based on the statutory language, legislative history and prior amendments are buttressed by five considerations external to the statute itself.
First, the chapter in which Tenn.Code Ann. § 63-6-219 is codified is Chapter 6 of Title 63. This chapter also includes the creation of the Board of Medical Examiners,
Second, a review of the statutes regulating other health care professionals demonstrates that the General Assembly plainly did not envision that the privilege in Tenn. Code Ann. § 63-6-219(e) would serve as a one-size-fits-all privilege that would be generally applicable to other health care professionals or entities. Had that been the General Assembly's intent, it would not have enacted separate peer review immunity provisions and privileges for other professional groups.
Third, while we approach the legislative debates with some caution,
Fourth, the history of the use of "peer review" in the field of health care demonstrates that its focus has consistently been on physicians. The medical profession has historically regulated itself using institutional-based processes designed to identify and remedy substandard care.
The first peer review efforts were established by the physicians themselves and were voluntary.
In the 1970s and 1980s, more states enacted peer review statutes in response to the increasing number of medical malpractice suits, the intensified focus on medical errors, and Congress's enactment of the Health Care Quality Improvement Act of 1986 ("HCQIA").
In 2000, the Institute of Medicine's Committee on Quality of Health Care in America released a report estimating that preventable medical error causes between 44,000 and 98,000 deaths per year.
The Institute's 2000 report prompted additional congressional debate over medical
Today, all fifty states have enacted statutes containing some variation of the peer review privilege.
Finally, even though the peer review statutes enacted in other states are not identical to ours, we have reviewed the decisions construing these statutes to determine whether any other courts have applied their privilege in circumstances similar to those found in this case. As reflected in our review of the history of the peer review statutes in Section IV(D), the focus of the application of privileges akin to Tenn.Code Ann. § 63-6-219(e) has been on the competence and conduct of physicians. The parties have not cited any direct precedents, and our independent research has failed to uncover any decisions, regarding the application of the privilege to a hospital's business decision that affects the quality and cost of patient care.
In the final analysis, we return to the principle that statutory privileges should be fairly and reasonably construed to give effect to their intended purpose. However, they need not be broadly or liberally construed because they obstruct the ability of the parties, the courts, and the finders-of-fact to obtain the benefit of otherwise relevant facts. The interpretation of Tenn.Code Ann. § 63-6-219(e) advanced by the defendants in this case knows no reasonable bounds. Virtually all decisions made by hospital committees affect the cost or quality of health care either directly or indirectly. Our review of the language of Tenn.Code Ann. § 63-6-219(e) and its legislative history provides no basis for concluding that the General Assembly set out to shield essentially every decision made by a hospital from appropriately managed discovery in a civil case.
Consistent with Tenn.Code Ann. § 63-6-219(b), the privilege in Tenn.Code Ann. § 63-6-219(e) applies only to peer review proceedings involving a physician's professional conduct, competence, or ability to practice medicine. It covers records possessed by entities that qualify as "peer review committees" under Tenn.Code Ann. § 63-6-219(c), but only when these entities are performing a peer review function. It does not apply to records kept by a hospital in the regular course of its business unrelated to a peer review committee conducting a proceeding involving a physician's professional conduct, competence, or ability to practice medicine.
In order to determine whether the privilege in Tenn.Code Ann. § 63-6-219(e) applies to a particular circumstance, the courts must determine whether the records sought to be discovered arose from a peer review proceeding to which the privilege applies. Tenn.Code Ann. § 63-6-219(c) does not explicitly define a peer review proceeding. However, its meaning emerges from the statute's pentimento that remains visible notwithstanding the broad brush strokes of the later amendments. In accordance with Tenn.Code Ann. § 63-6-219(b), a peer review proceeding is a proceeding involving a physician's professional conduct, competence, or ability to practice medicine.
Limiting the privilege in Tenn.Code Ann. § 63-6-219(e) to peer review proceedings involving a physician's professional conduct, competence, or ability to practice medicine provides a bright line of demarcation between records relating to peer review proceedings involving physicians that are privileged and other records made in the regular course of the hospital's business that are not privileged under Tenn.Code Ann. § 63-6-219(e). It is also consistent with the broad definition of "peer review committee" in Tenn.Code Ann. § 63-6-219(c) because it allows the privilege to apply to any hospital committee that fits within the statutory definition of "peer review committee," as long as the committee is engaging in a peer review proceeding which, consistent with Tenn. Code Ann. § 63-6-219(b), involves a physician's
Using these principles, we now consider, based on the evidence in this record, (1) whether the decision with regard to the provision of vascular access services is a peer review proceeding for the purpose of Tenn.Code Ann. § 63-6-219(e), (2) whether the Bard Report was a record prepared for use by a peer review committee in a peer review proceeding, and (3) whether the Tri-Star CNO Council and the Tri-Star CFO Council are peer review committees under Tenn.Code Ann. § 63-6-219(c) that were conducting peer review proceedings.
We turn first to the status of the TriStar CNO Council, the TriStar CFO Council, and the Hendersonville Medical Center's Quality Management Committee. Hospitals have not limited themselves to using statutorily defined terms to name their peer review committees. Accordingly, determinations whether a particular hospital committee fits within the definition of "peer review committee" in Tenn.Code Ann. § 63-6-219(c) depends on the committee's purpose and functions, not its name. A committee may be deemed to be a peer review committee for the purpose of Tenn.Code Ann. § 63-6-219(c) even if it is not called a "peer review committee."
As a result of the numerous amendments to Tenn.Code Ann. § 63-6-219(c) over the years, a peer review committee is now defined, among other things, as "any committee . . . of any licensed health care institution . . . the function of which, or one (1) of the functions of which, is to evaluate and improve the quality of health care rendered by providers of health care service[s]." It is difficult to imagine any committee created by a hospital whose functions do not include evaluating and improving the quality of care provided to patients at the hospital.
In light of this broad definition of "peer review committee," the trial court correctly concluded in its June 5, 2008 order that the TriStar CNO Council, the TriStar CFO Council, and the Hendersonville Medical Center's Quality Management Committee were peer review committees as defined in Tenn.Code Ann. § 63-6-219(c). This conclusion, however, does not end the inquiry. Because particular hospital committees may play more than one institutional role, we must also determine whether the TriStar CNO Committee, the TriStar CFO Committee, and the Hendersonville Medical Center's Quality Management Committee where engaging in a peer review function when they received and considered the Bard Report and the other disputed records.
A peer review proceeding for the purpose of Tenn.Code Ann. § 63-6-219(e) is one that involves the evaluation and review of a physician's professional conduct, competence, and ability to practice medicine. The three committees that reviewed the Bard Report were considering whether the TriStar Health System should stop outsourcing the provision of vascular access services at its hospitals. These proceedings were not peer review proceedings for the purpose of Tenn.Code Ann. § 63-6-219(e) because they did not involve a physician's professional conduct, competence, or ability to practice medicine.
The subject of the Bard Report did not involve the professional conduct, competence, or ability to practice medicine of any physician. Thus, even though the TriStar CNO Council, the TriStar CFO Council, and the Hendersonville Medical Center's
In light of our decision that the consideration of whether to stop outsourcing the provision of vascular access services was not a peer review proceeding for the purpose of Tenn.Code Ann. § 63-6-219(e), we need not address at length Lee Medical's assertions that the privilege in Tenn.Code Ann. § 63-6-219(e) does not apply to Bard or to Mses. Alsbrooks and Chambers. We have addressed this issue in Powell v. Community Health Systems, Inc., 312 S.W.3d at 513, where we held that third parties who prepare and submit information to a peer review committee at its request and in the discharge of its peer review functions should not be considered "original sources" for the purpose of Tenn. Code Ann. § 63-6-219(e).
Finally, we turn to Lee Medical's argument that the trial court should have permitted broader discovery in order to substantiate its claim that Bard, All About Staffing, and Mses. Alsbrooks, Chambers, and Philpott knowingly furnished false information, derogatory to Lee Medical's performance, to the TriStar CNO Committee and the TriStar CFO Committee. Lee Medical's reliance on Eyring v. Fort Sanders Parkwest Medical Center for this argument is misplaced. This decision found an implied exception to the privilege in Tenn. Code Ann. § 63-6-219(e), based upon the requirements of Tenn.Code Ann. § 63-6-219(d)(3), regarding information regarding the good faith, malice, or knowledge of a member of the peer review committee. Eyring v. Fort Sanders Parkwest Med. Ctr., 991 S.W.2d at 239. In this case, Lee Medical is asserting malice, not on the part of members of any of the peer review committees, but by the persons who provided information to the peer review committees. Because we have already determined that the consideration of whether to stop outsourcing the provision of vascular access services was not a peer review proceeding for the purpose of Tenn.Code Ann. § 63-6-219(e), we have determined that the resolution of this issue should await a more appropriate case.
The discovery orders of the trial court are vacated to the extent that they are inconsistent with this opinion, and the case is remanded to the trial court for further proceedings. In considering any other issues regarding the discovery of records possessed by the defendants and non-parties, the trial court may and should make appropriate provisions to assure that all personal medical information made private and confidential under federal and state law is not inadvertently, inappropriately, or improperly released. The costs of this appeal are taxed, jointly and severally, to Bard Access Systems, Inc. and All About Staffing, Inc. The portion of the costs associated with the filings of the Tennessee Hospital Association as amicus curiae are hereby taxed to the Tennessee Hospital Association.
GARY R. WADE, J., filed a dissenting opinion, in which JANICE M. HOLDER, C.J. joined.
Tenn.Code Ann. § 63-6-219 (Supp.2009) provides:
GARY R. WADE, J., dissenting.
While the majority's narrow interpretation of the statutory peer review privilege has appeal, I cannot reconcile its result with the basic principles of statutory construction. I must, therefore, respectfully dissent.
The central issue in this case is whether the scope of the peer review privilege set forth in Tennessee Code Annotated section 63-6-219(e) (Supp.2009)
The language in the first two sentences of subsection (e), when considered in conjunction with the definition of "medical review committee" and "peer review committee" in subsection (c),
While the statute, as pointed out by the majority, may include inartful language, it is unambiguous as to the scope of the peer review privilege. To the contrary, both the plain language of the statute and its legislative history demonstrate that our General Assembly intended for the privilege to apply expansively. Although there may appear to be "tension" within subsection (e) between the scope of the privilege and the regular course of business exception, any limitations on the privilege can be found within the definition of "peer review committee" appearing in subsection (c), obviating the need to resort to the subsection (b)(1) policy statement or any external sources.
The original version of the statute passed by the legislature in 1967 extended immunity to "hospital utilization review committees . . . relating to the hospitalization of Medicare patients." Act of May 25, 1967, ch. 348, § 1, 1967 Tenn. Pub. Acts 106v, 1066. In 1975, the General Assembly repealed and replaced the 1967 version. This amendment included a section defining "medical review committee"
As the majority concedes, subsequent amendments to subsection (c) have served only to broaden the definition of a "medical review committee" (which now may also be designated a "peer review committee"). Moreover, a 1994 amendment to subsection (e) did nothing to restrict the scope of the privilege and served to reenforce the tie between subsections (c) and (e).
Despite the sweeping directive of subsection (e) that the peer review privilege applies to "[a]ll information, [etc.] furnished
The majority expresses concern that a hospital could avoid all production of documents and records in civil proceedings and thus "shield essentially every decision made by a hospital from appropriately managed discovery in a civil case" by simply placing all of its regular business functions under the umbrella of a committee that meets the definition set forth in subsection (c). Whether or not such a hypothetical abuse of the peer review privilege could occur is not the question before us today. Our duty is to ascertain the meaning of the statute. If the policy proves to be unwise, any remedy is for the General Assembly, and not, under these circumstances, for resolution by the courts.
Because there is no real ambiguity in the statutory provisions, and because, as acknowledged by the majority, "the trial court correctly concluded in its June 5, 2008 order that the TriStar CNO Council, the TriStar CFO Council, and the Hendersonville Medical Center's Quality Management Committee were peer review committees as defined in Tenn[essee] Code Ann[otated section] 63-6-219(c)," the analysis should end there and the judgment of the Williamson County Circuit Court should be affirmed. I feel obliged, however, to address the methods of construction used by the majority in its effort to reconcile the perceived statutory ambiguity.
As stated, the majority places limitations on the protections provided by subsection (e) by creating the term "peer review proceeding," which appears nowhere in the statutory text. Further, the majority has defined the term as a proceeding in which a peer review committee, as defined under subsection (c), is performing a "peer review function" that "involves the evaluation and review of a physician's professional conduct, competence, and ability to practice medicine." The primary justification for so limiting the peer review privilege is the policy statement set forth in the 1992 amendment to the statute. In that 1992 amendment, the General Assembly identified "the stated policy of Tennessee to encourage committees made up of Tennessee's licensed physicians to . . . evaluate and review their peers' professional conduct, competence, and ability to practice medicine." Tenn.Code Ann. § 63-6-219(b)(1) (emphasis added). The majority's view is that the 1992 legislation, only one of eleven amendments passed since 1967, "provides a significant interpretative clue to the proper application of" the privilege in section 63-6-219(e) and that subsection "(b)(1) states . . . the purpose of the privilege in [section] 63-6-219(e)."
Whether or not the General Assembly "chose the term `peer review' carefully and
The majority has looked to the common definition of the word "peers" and determined that it must refer only to licensed physicians based upon the legislative policy statement in section 63-6-219(b)(1) and the popular name conferred on the statute by the 1992 Amendment, "Tennessee Peer Review Law of 1967," as codified in section 63-6-219(a). Nevertheless, as the majority concedes, section 63-6-219(d)(1) "plainly envisions that persons other than licensed physicians may serve on these committees." As the General Assembly has not limited participation in a "peer review committee" to licensed physicians, it stands to reason that the statutory privilege extends to "peers" other than physicians.
If the majority were seeking to limit the scope of the peer review privilege in subsection (e), it seems to me that such limitations must be found, if at all, in the companion section of the peer review statute— the definition of "peer review committee" in subsection (c). "Peer review committee" is defined in terms of three distinct types,
and also in terms of three discrete functions
Tenn.Code Ann. § 63-6-219(c). One could reasonably surmise that by including several enumerated functions of a "peer review committee" within subsection (c), the legislature intended to limit the application of the privilege only to those situations in which the peer review committee is performing one of those functions. Limiting the scope of the privilege to records concerning one of the functions set forth in subsection (c) would place a clear boundary on the scope of the privilege and serve to alleviate the majority's concern that the privilege "knows no reasonable bounds." While such an interpretation would not narrow the scope of the privilege as far as the majority's notion of "peer review proceedings," a reading of that nature would enjoy the advantage of being grounded in the statutory text.
In summary, if the General Assembly had intended in 1992, or at any other time in the last forty-three years, to limit the scope of the privilege in subsection (e) to "the evaluation and review of a physician's conduct, competence, and ability to practice medicine," it could have done so in a simple, straightforward way. It has not chosen that path. To the contrary, our General Assembly has continued to expand both the definition of "peer review committee" in section 63-6-219(c) and the scope of the peer review privilege in section 63-6-219(e). The approach of the majority, while consistent with traditional (and admirable) principles of open discovery in civil cases, is at odds with both the plain, ordinary language in the body of the statute and the progression of the legislative amendments since 1975. For these reasons, I must dissent. I would, therefore, affirm the judgment of the trial court and hold that the peer review privilege in Tennessee Code Annotated section 63-6-219(e) applies to the records and documents sought in the pending litigation.
I am authorized to state that Chief Justice HOLDER joins in this dissenting opinion.
Tenn.Code Ann. § 63-6-219(e) (emphasis added).
Tenn.Code Ann. § 63-6-219(c).
Act of May 2, 1975, ch. 117, § 1, 1975 Tenn. Pub. Acts 218, 218.
Act of May 2, 1975, ch. 117, § 1, 1975 Tenn. Pub. Acts 218, 219.