Kelly on Malpractice

In Stratienko v. Chattanooga-Hamilton County Hospital Authority, 226 S.W.3d 280 (Tenn.2007), the Plaintiff physician was involved in a physical altercation with Dr. Monroe. The altercation took place in the cardiac catheterization lab lunchroom at Erlanger Hospital in Chattanooga. After the altercation, there were numerous discussions among various physicians and/or representatives of the Chattanooga-Hamilton County Hospital Authority (the “Hospital Authority”). Following these discussions, the Hospital Authority informed the Plaintiff that his clinical privileges were being summarily suspended pending an evaluation of the Plaintiff by the Tennessee Medical Foundation. The latter is a group that treats impaired physicians.

A few days after being informed that his privileges were summarily suspended, Plaintiff filed this lawsuit and immediately obtained an ex parte temporary restraining order prohibiting the Hospital Authority from suspending his hospital privileges pending an evidentiary hearing. Two days later and as required by the Medical Staff Bylaws, the Hospital Authority’s Credentials Committee met to consider the suspension of Plaintiff’s privileges. The Credentials Committee issued a recommendation to suspend Plaintiff’s hospital privileges, a decision which was later upheld by the Medical Executive Committee.

A few days after being informed that his privileges were summarily suspended, Plaintiff filed this lawsuit and immediately obtained an ex parte temporary restraining order prohibiting the Hospital Authority from suspending his hospital privileges pending an evidentiary hearing. As part of this discovery process, Plaintiff requested the Hospital Authority produce copies of Dr. Monroe’s credentials. After the Hospital Authority refused to provide these documents on the basis that they were confidential and protected from disclosure by the Peer Review Statute, Plaintiff filed a motion to compel production of these documents. The Supreme Court framed the issue as follows: whether the requested documents were protected by the “peer review” privilege pursuant to Tennessee’s Peer Review Statute, TENN.CODE ANN. § 63-6-219 or whether they came within the exception contained in the statute at paragraph (e).

The Tennessee Peer Review Statute was passed with the stated intent of encouraging “committees made up of Tennessee’s licensed physicians to candidly, conscientiously, and objectively evaluate and review their peers’ professional conduct, competence, and ability to practice medicine.” The statute further “recognizes that confidentiality is essential both to effective functioning of these peer review committees and to continued improvement in the care and treatment of patients.” Tenn.Code Ann. § 63-6-219(b)(1). To this end, the statute creates a privilege for certain documents, etc., which are generated or provided during the peer review process. Specifically, the statute provides as follows: All information, interviews, incident or other reports, statements, memoranda or other data furnished to any committee as defined in this section, and any findings, conclusions or recommendations resulting from the proceedings of such committee are declared to be privileged. All such information, in any form whatsoever, so furnished to, or generated by, a medical peer review committee, shall be privileged. The records and proceedings of any such committees are confidential and shall be used by such committee, and the members thereof only in the exercise of the proper functions of the committee, and shall not be public records nor be available for court subpoena or for discovery proceedings. One (1) proper function of such committees shall include advocacy for physicians before other medical peer review committees, peer review organizations, health care entities, private and governmental insurance carriers, national or local accreditation bodies, and the state board of medical examiners of this or any other state. The disclosure of confidential, privileged peer review committee information to such entities during advocacy, or as a report to the board of medical examiners under § 63-6-214(d), or to the affected physician under review, does not constitute either a waiver of confidentiality or privilege. Nothing contained in this subsection (e) applies to records made in the regular course of business by a hospital or other provider of health care and information, documents or records otherwise available from original sources are not to be construed as immune from discovery or use in any civil proceedings merely because they were presented during proceedings of such committee.

The statute defines a “medical review committee” or “peer review committee” as: any committee of a state or local professional association or society, including impaired physician peer review committees, programs, malpractice support groups and their staff personnel, or a committee of any licensed health care institution, or the medical staff thereof, or any committee of a medical care foundation or health maintenance organization, preferred provider organization, individual practice association or similar entity, 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 to provide intervention, support, or rehabilitative referrals or services, or to determine that health care services rendered were professionally indicated, or were performed in compliance with the applicable standard of care, or that the cost of health care rendered was considered reasonable by the providers of professional health care services in the area and includes a committee functioning as a utilization review committee under the provisions of Public Law 89-97 (42 U.S.C. §§ 1395-1395pp)(Medicare Law), or as a utilization and quality control peer review organization under the provisions of the Peer Review Improvement Act of 1982, Public Law 97-248, §§ 141-150, or a similar committee or a committee of similar purpose, to evaluate or review the diagnosis or treatment or the performance or rendition of medical or hospital services that are performed under public medical programs of either state or federal design.

The Supreme Court held that Dr. Monroe’s credentialing records were presented to a peer review committee and were thus within the broad purview of the statute. However, this did not end the inquiry. The Plaintiff argued that the records originated somewhere else, not in the peer review committee. As a result, the Plaintiff asked for permission to discover any credentialing documents that were created in the ordinary course of business. The Defendant argued that once the documents made their way to the peer review committee, the privilege attached automatically, so that the Plaintiff could not discover them. This would effectively negate the exception to the statute. Therefore, the Supreme Court concluded that based on the specific language of the Peer Review Statute: (1) the credentialing process was part of the peer review process; (2) documents generated as part of the peer review process are not made “in the regular course of business” of a hospital for purposes of the exception contained in Tenn.Code Ann. § 63-3-219(e); and (3) documents or records “otherwise available from original sources” are discoverable from either the original source.

The bottom line is that records made in the ordinary course of business may be discovered that are “otherwise available from original sources” such as hospital business records, incident reports, and the like. Records that originate in or are part of the peer review process are protected from discovery. You can thank two physicians in a fight in the Cath Lab for this instructive opinion.