Kelly on Malpractice

What is the scope of qualified immunity provided in TENN.CODE ANN. § 63-6-219(d)(1) as it relates to negligent credentialing / supervision of physicians at hospitals? The answer is simple: hospitals are immunized for negligent credentialing decisions that occur as the result of a peer review process. In Smith v. Pratt, 2009 WL 1086953 (Tenn.Ct.App.), the plaintiff, Ms. Smith, went to see Dr. Pratt, a plastic surgeon, concerning excess skin on various parts of her body due to weight loss. Dr. Pratt performed several surgical procedures on Ms. Smith. She was discharged from Centennial Medical Center. Ms. Smith later developed open wounds on her back and thigh. Dr. Pratt sutured them. Several days later, she complained to Dr. Pratt of pain in her lower left calf and in the wounds in her back and thigh. He gave her a prescription for Avelox. Ms. Smith then developed shortness of breath along with increased pain in her left leg. She went to the Saint Thomas Hospital emergency room where a test showed deep vein thrombosis (a blood clot). She was transferred to Centennial, where Dr. Pratt ordered a pulmonary consult. She was found to have a pulmonary embolism and prescribed Coumadin, a blood-thinning medicine. After her discharge from Centennial, Ms. Smith saw Dr. Pratt, who again closed the wound on her back. Ms. Smith went to Centennial’s emergency room with complaints of chest pain and shortness of breath. Her blood had become too thin and she was bleeding into her lungs. Blood was drained from her lungs. After her discharge from Centennial, she continued to visit Dr. Pratt through March 2004 to address the open wounds on her thigh and lower back.

Ms. Smith filed a medical malpractice action against Dr. Pratt’s estate. She also sued Centennial Medical Center, alleging that Centennial should not have granted surgical privileges to Dr. Pratt and should have revoked his privileges because Dr. Pratt was incompetent and dangerous. Centennial filed a motion for summary judgment by claiming that TENN.CODE ANN. § 63-6-219 provides qualified immunity for credentialing decisions and that it was not negligent in renewing Dr. Pratt’s privileges in 2002. The trial court denied Centennial’s motion for summary judgment. The application of TENN.CODE ANN. § 63-6-219 was raised again in Centennial’s motion to dismiss and during a pre-trial conference. The trial court issued an order stating, “[u]nder the facts of this case, immunity for Centennial would be contrary to the central purpose of the statute, which is to encourage the medical profession to police its members without fear of being sued by physicians who are disciplined by their peers.” Centennial moved for and the trial court granted permission to seek an interlocutory appeal. The Court of Appeals granted the application for the interlocutory appeal.

This appeal was solely concerned with the interpretation of the qualified immunity provision of TENN.CODE ANN. § 63-6-219 and the decision of Centennial’s peer review committee to recommend renewal of Dr. Pratt’s surgical privileges. The statute provides that (1) hospitals (2) are immune from liability (3) to any patient (4) for damages (5) resulting from any decisions or proceedings (6) by peer review committees (7) within their scope of duties (8) made in good faith without malice (9) on the basis of facts reasonably known or reasonably believed to exist. These are the factors courts must examine to determine the applicability of the statutory qualified immunity. The major issue of statutory interpretation in this case was whether the qualified immunity applies when a patient sues the hospital. The Court of Appeals held that it does. In so doing, the Court distinguished: (1) Bryant v. McCord, 1999 WL 10085 (Tenn.Ct.App.) (holding that hospitals have a duty to use reasonable care to select and retain only competent physicians) because Bryant involved a hospital’s control over the use of investigational devices, not the selection or recommendation of a physician by a peer review committee; (2) Wicks v. Vanderbilt Univ., 2007 WL 858780 (Tenn.Ct.App.) (recognizing a claim for negligent supervision of physicians) because Wicks focused on failure to adhere to hospital policies, which was not an issue; and (3) Edmonds v. Chamberlain Mem’l Hosp., 629 S.W.2d 28, 30 (Tenn.Ct.App.1981) (a hospital is not liable for the negligence of the physician selected by the hospital unless at the time the physician was chosen or subsequently as he performed at the hospital it was known, or should have been known, that the physician was incompetent to perform the duties he was reasonably expected to undertake) because Edmonds did not involve a doctor subjected to review by a peer review committee, so the qualified immunity of TENN.CODE ANN. § 63-6-219(d)(1) was not available and was not discussed. Thus, the Court of Appeals held that the qualified immunity defense under TENN.CODE ANN. § 63-6-219(d)(1) is available when a patient sues a hospital for credentialing decisions made by a peer review committee. This means that a patient has no claim against a hospital for negligent credentialing decisions that are a product of the peer review process. The Court of Appeals did mention an important exception to the statute. The Court declared, “As important as this holding is, just as important is what we do not hold.” Centennial would have to prove that its credentialing decision was made in good faith, without malice, on the basis of facts reasonably known or reasonably believed to exist. Moreover, qualified immunity is not available in situations other than those enumerated in TENN.CODE ANN. § 63-6-219(d)(1). In situations outside the scope of the statute, “hospitals are liable for the negligent acts of their agents and employees even though they are selected with due care.”

Smith v. Pratt is an immunizing decision that provides cover for hospitals who put dangerous physicians on the floor to treat patients, even when the decision to put that physician on the floor was negligent, as long as the hospital acts in conformity with the TENN.CODE ANN. § 63-6-219(d)(1). Judge Barbara Haynes got it right from a public policy standpoint. Blanket immunity is contrary to the central purpose of the statute, which is to encourage the medical profession to police its members without fear of being sued by physicians who are disciplined by their peers. Hospitals can police, but if they do it poorly, then the patient has no right of redress against the hospital. Drunk or drug addicted doctors and incompetent physicians can continue harming patients without the hospital being accountable. I think the thrust of discovery in these cases will be on the facts known or reasonably available to the peer review committee at the time the decision was made to credential the doctor and whether the decision was a product of “good faith.” Does an absence of good faith mean “malice?” Time will tell, but these cases just got much harder to prove.

Finally, I am very concerned about the constitutional arguments that the Court of Appeals so easily brushed aside. The Court’s ruminations foreshadowed doubt in my mind to any challenge against tort reform and draconian caps that may ensue. The Court relied on Harrison v. Schrader, 569 S.W.2d 822 (Tenn.1978) to pierce a constitutional challenge based on the “open courts” provision. We will have to hold out breath if the unthinkable happens.

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