On May 24, 2010, the Tennessee Supreme Court issued two important cases interpreting Tennessee’s Peer Review Statute. In Lee Medical, Inc. v. Beecher, No. No. M2008-02496-SC-S09-CV (May 24, 2010), and in Powell v. Community Health Systems, Inc., E2008-00535-SC-R11-CV (May 24, 2010), the Court clarified the scope and the application of the Peer Review Statute and the privilege in a significant manner.
In Lee Medical, the Court focused on the application of the “peer review statute and privilege” to a hospital’s internal business committees. The court found that those committees could be “peer review committees,” however the privilege only applied when the committees were engaged in “documents and discussions were protected only when the proceeding involved a physician’s professional conduct, competence, or ability to practice medicine. When the committees were discussing other issues, in this case whether to outsource vascular access services, the “peer review privilege did not apply.
Specifically, the court held that the privilege applies only to peer review proceedings conducted by a “peer review committee” and only when that proceeding involve a physician’s professional conduct, competence, or ability to practice medicine. Thus, the privilege only applies when a “peer review committee is performing a peer review function.
With respect to records, the Court stated that the privilege covers only records possessed by entities that qualify as “peer review committees” under Tenn. Code Ann. § 63-6-219(c). The privilege does not apply to records kept by a hospital in the regular course of its business unrelated to a peer review proceeding. And, the privilege does not apply mere because the peer review committee used those records in the course of a peer review proceeding. The records may be sought and obtained from the “Original Source.”
The court further clarified the definition of “peer review committee.” The court noted that the statutory definition of “peer review committee” is “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].” This definition is meaningless as “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 Powell v. Community Health Systems, Inc., the Court clarified which records are protected by the “peer review” privilege.” As noted in Lee Medical, records received or made in the ordinary course of a hospital's business apart from the operation of a peer review committee are not protected by the peer review privilege in Tenn. Code Ann. section 63-6-219. In Powell, the plaintiff wanted a report prepared at the request of the Peer Review Committee. With respect to those documents, the Court held that the privilege applied. Specifically, the Court held that documents prepared by or at the request of a peer review committee exercising its peer review function and documents prepared by third parties as part of the work of a peer review committee performing its peer review function are privileged.
Finally, the Court addressed the question of whether the “peer review” privilege could be waived. The Court noted that the statute does not possess a “waiver” provision. As the privilege is intended to protect the “peer review process,” and not any specific individual, the Court held that it could not be “waived” by any person, including the hospital.
These two decisions are extremely important as they clarify the application of the Peer Review Process. By the same token, they emphasize the absolute “privilege” afforded to “peer review committees” when performing “peer review.” Although in Lee Medical, the hospitals possessed a valid argument regarding that their business committees performed some duties associated with “quality,” those duties involving business issues clearly did not invoke type of protection provided by the “peer review” statute.
The moral of this story – the Peer Review privilege is absolute, but it does not apply to every committee in a hospital.
Kimberly Powell v. Community Health Systems, Inc.
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