Kelly on Malpractice

What if you are prosecuting a hospital neglect action that involves the misconduct of a nurse? Suppose that the Department of Health’s Board of Nursing investigated the actions of that nurse for drug abuse or other violations of nursing practice. The Department of Health (“DOH”) will resist a subpoena for the production of any investigatory documents and interviews relating to that nurse. Stated simply, does the DOH have a statutory privilege protecting the disclosure of those documents. The answer is No.

DOH contends that any investigative documents compiled by the Board relating to Nurse Malone’s are protected from disclosure by T.C.A.. 63-1-117(b). A simple examination of the statute reveals that there is no privilege against the production of investigative documents. The only privilege or confidentiality provision relates to requests by DOH, not litigants in a civil action. T.C.A. 63-1-117 is a “wordy” statute, but its purpose is clear. The purpose is to compel health care providers to supply records or documents when sought by the DOH investigators. The statute mandates that records of all health care providers “shall be made available for inspection and copying.” On the other hand, mandatory production does not apply to “records that are made statutorily privileged, which shall require for their production a release that specifically identifies the privilege, contains a statement that the privilege is waived, and that is signed by the patient or the patient’s legal representative.” This is not what you are seeking because without a waiver DOH could not obtain the records anyway.

More importantly, the statute commands that “allegations against a practitioner of the healing arts and the various branches thereof, compiled pursuant to an investigation conducted by the division, are ‘public information’ upon the filing of notice of charges.” This is what you are seeking. The identifying information of a complainant, of any witness who requests anonymity, of a patient, and of medical records, shall remain confidential until introduced “in the proceedings.” DOH may claim that no “proceedings” ensued because the nurse signs a Consent Order—an order that the nurse had violated her license in lieu of a Notice of Charges and associated “proceedings.” This is usually the gist of DOH’s refusal to produce the documents. There is nothing expressed or implied by the statute that prevents a court from ordering production of investigative documents in the course of civil discovery. There is nothing in the legislative history that prevents a court from ordering production of investigative documents in the course of civil discovery. The statute has no court interpretation as yet that the documents are privileged from discovery. Tennessee’s Attorney General has not opined that the documents are privileged from discovery. On the contrary, the statute states, “this section does not modify or limit the prehearing discovery provisions set forth in the Uniform Administrative Procedures Act. If this section does not modify or limit prehearing discovery provisions set forth in the Uniform Administrative Procedures Act, then how can the section modify or limit the liberal discovery provisions of a Court of Law? The answer is obvious: the documents are not privileged from discovery. This Court has the authority to permit discovery of DOH’s file relating to the nurse.

Discovery rules are accorded “broad and liberal treatment,” and are “essential” to proper litigation. Johnson v. Nissan North America, Inc., 146 S.W.3d 600 (Tenn.App.2004). Explore the credibility of the nurse and other hospital employees regarding the nurse’s misconduct. It is difficult for a court to turn away a relevant discovery request if there is some evidence of nursing misconduct. In summary, Don’t let the DOH hide documents that are critical to making your case. Issue a subpoena for the DOH file. When the inevitable motion for protective order comes, fight it vigorously. The statute provides no privilege. Until the legislature amends the statute, these documents are indeed discoverable.

You can leave a response, or trackback from your own site.