By Jeffrey H. Brochin, J.D.
Tennessee’s Healthcare Quality Improvement Act (HCQIA) was not unconstitutional as a violation of the state’s separation of powers provisions, and its evidentiary privilege provisions could not be waived by the court, the Tennessee Court of Appeals has ruled. The statute provided an "original source" exception to the privilege whereby documents not produced specifically for use by a Quality Improvement Committee (QIC), and, which were otherwise available from original sources were both discoverable and admissible into evidence; therefore the privilege was reasonable and workable within the framework of judicial evidentiary rules. (Pinkard v. HCA Health Services of Tennessee, Inc., June 21, 2017, Clement, F.).
Background. Dr. Pinkard was a thoracic surgeon who held medical staff privileges at HCA Health Services of Tennessee, Inc., d/b/a Summit Medical Center (Summit) from 1999 to 2006. After various complaints of behavioral issues arose against the doctor, Summit decided upon an arbitration method to examine future complaints. After one incident an arbitration hearing was set for January, 2007; however, in November, 2006, his competency was challenged after a surgery he performed allegedly resulted in significant blood loss to a patient. The doctor claimed that a rare structural abnormality was to blame, but Summit’s Medical Executive Committee (MEC) determined that an angiogram did not reveal such an abnormality and they voted to revoke his privileges. He appealed to a ‘fair hearing’, but in advance of that hearing, his lawyer requested access to the patient’s CT scan along with a projector to display the evidence before the fair hearing panel. Summit denied him such access, which he alleged strongly suggested bad faith on the part of Summit.
Other conduct by Summit was cited by the doctor as indicating malice in the peer review process, and after exhausting his appeals within that process he filed suit in May, 2008 alleging bad faith and malice. Summit filed a motion for summary judgment and motion in limine relying on the provisions of the HCQIA which define evidence from a fair hearing as privileged and inadmissible under the statute. The trial court ruled that the statute was unconstitutional as a violation of the separation of powers under the state’s constitution because it deprived the court of its inherent authority to make evidentiary decisions. This interlocutory appeal followed, the result of which the trial court’s decision was reversed.
Good faith immunity from damages. When enacting the HCQIA, the legislature stated that it was the policy of the state to encourage the improvement of patient safety as well as the quality of healthcare services in the state. One of the protections provided by the HCQIA was that no healthcare organization be held liable for damages or other relief resulting from any decision of a QIC, if made in good faith and without malice and on the basis of facts reasonably known or reasonably believed to exist. Furthermore, the statute presumed all proceedings, actions and decisions by a QIC to have been completed in good faith and without malice, and therefore, a person alleging a lack of good faith, including Dr. Pinkard, had the burden of proving bad faith and malice.
Evidentiary privilege. To further protect those who participate in a QIC or provide information or testimony to a QIC, the General Assembly mandated that all records of a QIC, including testimony or statements by persons relating to activities of the QIC, were not only confidential and privileged, they were also protected from discovery or admission into evidence. Therefore, the statute appeared to stymie Dr. Pinkard in his ability to carry out his burden of proof as to bad faith and malice allegations.
Separation of powers. The court began its analysis by noting that there existed a presumption that the statute was constitutional. However, it further underscored the doctrine of separation of powers as a fundamental principle of American constitutional government and that the legislature was not at liberty to enact evidentiary rules which strike at the very heart of a court’s exercise of judicial power; to allow otherwise would impair the independent operation of the judicial branch.
Original source exception. The court further noted that the HCQIA carved out an exception known as the original source exception under which any information, documents or records that were not produced for use by a QIC, or which were not produced by persons acting on behalf of a QIC, and which were available from original sources, were not immune from discovery or admission into evidence even if the information was presented during a QIC proceeding. Accordingly, they found that although the HCQIA privilege provisions were problematic, they did not prohibit Dr. Pinkard from obtaining evidence that went to the heart of the case from the original sources.
Ruling on constitutionality. As to the issue of the constitutionality of the statute, the court found that because the General Assembly enacted the privilege in furtherance of the public policy of the state, the privilege achieved that objective by encouraging candor within a hospital’s quality improvement process, and therefore the privilege was reasonable and workable within the framework of evidentiary rules already recognized by the judiciary. Accordingly, they ruled that they were unable to conclude that the HCQIA as applied to the facts of the case was unconstitutional.
Waiver of privilege. Dr. Pinkard also asserted that Summit waived the HCQIA privilege by utilizing privileged evidence to support its motion for summary judgment. The trial court however, had determined that the HCQIA privilege was not waivable. The appeals court agreed, noting that not only did the HCQIA not contain any provision permitting waiver of the privilege, but that the court could not empower persons participating in the process to waive confidentiality unilaterally when the General Assembly itself did not recognize exceptions to the confidentiality requirement.
Based on the foregoing, the court ruled that although the fact that the privilege cannot be waived is problematic, nevertheless, they could not take the peer review privilege lightly because weakening the privilege could undermine the confidentiality that the privilege was intended to protect. The judgment of the trial court was reversed and the matter remanded.
The case is No. M2016-01846-COA-R9-CV.
Attorneys: C. Bennett Harrison, Jr. (Cornelius & Collins, LLP) for John F. Pinkard. Dixie W. Cooper (Gideon, Cooper & Essary PLC) for HCA Health Services of Tennessee, Inc. d/b/a Summit Medical Center.
Companies: HCA Health Services of Tennessee, Inc. d/b/a Summit Medical Center
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