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 fight took place in the cardiac catheterization lab. 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. A few days after being informed that his privileges were summarily suspended, Plaintiff filed a 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 the 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 of the Peer Review Statute.

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 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.” It 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 statute has an exception in paragraph (e) which allows discovery of “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.”

The Supreme Court ruled 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. 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. The Court rejected this argument which would, “effectively negate the exception to the statute.” Therefore, the Supreme Court concluded that any of the documents relating to Dr. Monroe that were “otherwise available from original sources” were discoverable.

The bottom line from the Supreme Court is that records which originate in or are part of the peer review process are protected from discovery. However, under paragraph (e) the exception to the statute allows discovery of records made in the ordinary course of business may be discovered, such as hospital business records, incident reports, and the like. This is an instructive opinion about the confines of the Peer Review Statute.

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