JOHN F. PINKARD, M.D. v. HCA HEALTH SERVICES OF TENNESSEE, INC. D/B/A SUMMIT MEDICAL CENTER
No. M2016-01846-COA-R9-CV
IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE
June 21, 2017
April 11, 2017 Session
Appeal from the Circuit Court for Davidson County
No. 08C1708
Joseph P. Binkley, Jr., Judge
FRANK G. CLEMENT, JR., P.J., M.S., delivered the opinion of the Court, in which ANDY D. BENNETT and JOHN W. MCCLARTY, JJ., joined.
Dixie W. Cooper and Kaycee L. Weeter, Nashville, Tennessee, for the appellant, HCA Health Services of Tennessee, Inc. d/b/a Summit Medical Center.
Herbert H. Slatery III, Attorney General and Reporter; Joseph F. Whalen, Associate Solicitor General; and Stephanie A. Bergmeyer, Assistant Attorney General, Nashville, Tennessee, for the intervenor-appellant, the State of Tennessee.
C. Bennett Harrison, Jr., Sean C. Wlodarczyk, and John D. Kitch, Nashville, Tennessee, for the appellee, John F. Pinkard, M.D.
OPINION
The plaintiff, John Pinkard, M.D. (“Dr. Pinkard“) held medical staff privileges at HCA Health Services of Tennessee, Inc., d/b/a Summit Medical Center (“Summit“) from 1999 to 2006. On November 21, 2006, the Chief of the Medical Staff and the Chief of the Department of Surgery summarily suspended Dr. Pinkard‘s medical staff privileges because of patient safety concerns. After conducting an investigation, the hospital‘s Medical Executive Committee (“MEC“) upheld the suspension and terminated Dr. Pinkard‘s privileges.
On May 30, 2008, Dr. Pinkard commenced this action against Summit alleging, in pertinent part, that Summit acted in bad faith and with malice during the peer review process that concluded with the termination of his hospital privileges. Summit timely filed its answer denying it breached any duty and denying it acted in bad faith or with malice. We summarize the relevant facts and proceedings leading to the initiation of this appeal below.
Dr. Pinkard is a board-certified thoracic surgeon. He gained the privilege to practice thoracic and vascular surgery at Summit in 1999, and by 2001, he practiced almost exclusively at Summit. Summit contends that in 2002, Dr. Pinkard‘s relationship with the nursing staff became contentious, and the staff‘s morale declined. These “behavioral issues” culminated in 2003 when Dr. Pinkard confronted an emergency room physician about that physician‘s medical treatment of a patient. Summit claimed that Dr. Pinkard was “verbally abusive and personally degrading,” and that the “incident disrupted the flow of patient care.” Dr. Pinkard alleged that the physician incompetently performed a procedure on the patient, causing a harmful complication. This incident led to an agreement between Dr. Pinkard and Summit that any further complaints about Dr. Pinkard‘s behavior would go to arbitration. In May 2006, Summit received two complaints about Dr. Pinkard‘s disruptive behavior with the nursing staff. The hospital set arbitration concerning one of those complaints for January 2007.
In October 2006, Dr. Pinkard received a letter from a physician at Summit relaying the recent findings of Summit‘s peer review committee. The letter stated that, after a review of Dr. Pinkard‘s performance at the hospital, the committee found that his complication and mortality rates were consistently below the expected rates for vascular surgeons. However, a month later, Summit‘s view of Dr. Pinkard‘s competency as a vascular surgeon changed following a surgery he performed on a patient known as J.E.F. for confidentiality purposes. J.E.F. suffered significant blood loss during the operation, and Dr. Pinkard and Summit vehemently disagreed as to the cause of that complication. Despite the patient‘s blood loss, the patient not only survived the operation but made a full recovery.
An anesthesiologist present during the surgery claimed that Dr. Pinkard improperly pulled a filter from the patient‘s vena cava which caused the patient to hemorrhage. Dr. Pinkard argued that the anesthesiologist did not have the necessary vantage point during the surgery to make that determination. To the contrary, Dr. Pinkard claimed that the patient‘s blood loss resulted from an aorto-caval fistula, a
Prior to the fair hearing, Dr. Pinkard and his attorney requested access to the system Summit used to store J.E.F.‘s CT scan along with a special projector to display the image for the fair hearing panel. Dr. Pinkard intended to use it to support his contention that J.E.F. had an aorto-caval fistula. However, hospital employees informed him that he could not have access to the projector because he was no longer a member of the medical staff. Summit argued that Dr. Pinkard could have presented an image of the CT scan as maintained on a CD-ROM or plain filed film. However, Summit‘s own expert witness, a physician and chair of Vanderbilt Vascular, testified before the fair hearing panel that the multiple-layered CT scan angiogram was the best way to ascertain the presence of a pre-operative aorto-caval fistula, not plain film or CD-ROM images. Thus, Dr. Pinkard argued that this evidence was crucial to his case, and the fact that Summit would not allow him to present it to the fair hearing panel strongly suggested bad faith on Summit‘s part. Though the fair hearing panel agreed to review the CT scan angiogram during its deliberations, there was no evidence that it did so.
Dr. Pinkard explained that not only did Summit place him at a disadvantage regarding J.E.F.‘s surgery, the hospital also used the hearing to rehash past behavioral issues that had already been resolved. Moreover, it selected and addressed eight of the over 1,000 surgeries Dr. Pinkard performed at the hospital, each of which had been subjected to peer review without adverse consequences. Dr. Pinkard argued that Summit never notified him that the panel would be considering the past behavioral issues or the other eight surgeries, and thus, he felt ill-prepared to defend himself. Dr. Pinkard contended these actions further demonstrated malice in the peer review process.
After reviewing the evidence, the fair hearing panel agreed with the MEC, but it decided to make an alternative recommendation that the MEC revoke only Dr. Pinkard‘s vascular surgical privileges and reinstate his general thoracic surgical privileges. Despite this recommendation, the MEC decided unanimously to revoke all of Dr. Pinkard‘s hospital privileges.
Dr. Pinkard alleged that Summit issued its revocation purely for financial reasons and not in the interest of patient safety. He explained that in 2005, another vascular surgeon entered into a contract with Summit. The contract between Summit and this new surgeon stipulated that the hospital would advance the new physician‘s income for one year with a payback of that income beginning in August 2006. At the time of Summit‘s initial decision to suspend Dr. Pinkard‘s privileges, this new physician was entering the payback phase of his agreement with Summit. Since Dr. Pinkard and this physician were the only vascular surgeons practicing at Summit, this physician‘s practice increased when Dr. Pinkard left. Thus, it allowed the new vascular surgeon to pay back the money Summit advanced him.
The trial court denied Summit‘s motion, outlining three main facts that, if presented to a jury, could lead the jury to conclude that Summit conducted its peer review in bad faith and with malice. First, the court found that a jury could infer malice from the fact that Summit denied Dr. Pinkard access to the system which stored the CT scan angiogram of J.E.F. and also denied him access to a projector to show that image to the fair hearing panel. The trial court found the CT scan to be a “crucial” piece of evidence, and it further noted that the record of the fair hearing panel did not show that it actually viewed the CT scan angiogram slides in its deliberations. Second, the court agreed with Dr. Pinkard that a reasonable jury could infer malice from Summit‘s introduction of eight “stale” surgical cases and previously resolved behavioral issues. Third, the court found that a reasonable jury could infer malice from the MEC‘s refusal to consider the fair hearing panel‘s secondary recommendation, since the fair hearing panel heard more evidence and conducted a more thorough investigation than the MEC.
Effective April 12, 2011, the legislature repealed and replaced the TPRL with the enactment of
On July 1, 2015, Summit filed a second motion for summary judgment in which it relied on the HCQIA instead of the TPRL. At the same time, it filed a motion in limine, a motion to strike, and a motion for a protective order. Summit noted that the HCQIA, like the TPRL, established a presumption that hospitals have complied with the required standards in the quality improvement process and are entitled to immunity from monetary damages unless the plaintiff overcomes the presumption.1 Further,
Dr. Pinkard opposed the motion for summary judgment arguing that Summit waived the privilege when it submitted the fair hearing transcript and other exhibits from
the hearing with its first summary judgment motion. He also argued that not all evidence he relied on constituted records derived from a QIC; thus, this evidence was not privileged. Specifically, Dr. Pinkard contended that a QIC “‘evaluates the safety, quality, processes, costs, appropriateness or necessity of healthcare services‘” and Summit‘s fair hearing panel did not act as a safeguard for patient safety. Instead, he argued that the fair hearing panel operated as a “quasi-appellate safeguard” to protect physicians from the unfair actions of QIC‘s. Therefore, the fair hearing panel was not a QIC as defined by the HCQIA. In the alternative, Dr. Pinkard argued that the HCQIA violated the separation of powers provisions in the Tennessee Constitution, because it interfered with the court‘s discretion to make evidentiary decisions.
The trial court ruled that the fair hearing proceeding was not a QIC within the meaning of the statute; nevertheless, the MEC did meet the statutory definition. Therefore, all evidence derived from the activities of the MEC would be inadmissible. The court also took note of the “original source” exception to the statute, which exempts from the privilege documents not produced specifically for use by a QIC and are obtainable from an original source. Based on these rulings, the court ordered Dr. Pinkard to file a list of all admissible evidence in support of the material facts in accordance with the trial court‘s interpretation of the statute. With regard to Dr. Pinkard‘s claim that the HCQIA violated the separation of powers doctrine, the court declined to rule on the issue.
Summit then filed a motion to reconsider. In response to the motion, the trial court altered its ruling by holding that the MEC was a QIC; therefore, any information presented to the fair hearing panel that had been derived from the MEC was privileged and inadmissible under the HCQIA. The court also ruled the QIC privilege could not be waived by Summit; therefore, the privilege remained intact despite the fact that Summit submitted privileged evidence to support its first summary judgment motion.
Because the trial court‘s revised ruling precluded the admissibility of evidence in accordance with
The Court, therefore, finds that the provisions of
T.C.A. § 68-11-272(c)(1) as applied to the facts of this case is unconstitutional as a violation of the Tennessee separation of powers doctrine. Specifically, the Court finds that the statute —T.C.A. § 68-11-272(c)(1) — is unconstitutional as applied because it deprives the Court of its inherent authority to make evidentiary decisions that affect the heart of this case. The Court relies upon authority cited by the plaintiff in his “as applied” challenge, including Mansell v. Bridgestone Firestone N. Am. Tire, LLC, which stated as follows:
While there are no precise lines of demarcation in the respective roles of our three branches of government, the traditional rule is that “the legislative
[branch] [ha]s the authority to make, order, and repeal [the laws], the executive to administer and enforce, and the judicial to interpret and apply.” Underwood v. State, 529 S.W.2d 45, 47 (Tenn. 1975) (quoting Richardson v. Young, 122 Tenn. 471, 125 S.W. 664, 668 (1910)). By the terms of our constitution, “[o]nly the Supreme Court has the inherent power to promulgate rules governing the practice and procedure of the courts of this state, and this inherent power ‘exists by virtue of the [Constitution‘s] establishment of a Court and not by largess of the legislature.‘” State v. Mallard, 40 S.W.3d 473, 480-81 (Tenn. 2001) (citations omitted) (quoting Haynes v. McKenzie Mem‘l Hosp., 667 S.W.2d 497, 498 (Tenn. Ct. App. 1984)). In this context, this “[C]ourt is supreme in fact as well as in name.” Barger v. Brock, 535 S.W.2d 337, 341 (Tenn. 1976).
417 S.W.3d 393, 402 (Tenn. 2013).
Similarly, in State v. Mallard, the Tennessee Supreme Court states that the “legislature can have no authority to enact rules, either evidence or otherwise that strike at the very heart of a court‘s exercise of judicial power.” 40 S.W.3d 473, 483 (Tenn. 2001)(emphasis added). Thus, the Court concludes that it cannot constitutionally apply
After concluding that the statute, as applied to the facts of this case, was unconstitutional, the trial court granted Summit‘s motion for an interlocutory appeal pursuant to
ANALYSIS
Dr. Pinkard contends that
judicial department‘s authority is minor, and the privilege is reasonable and workable within the evidentiary framework already adopted by the judiciary. Summit also insists it did not waive the privilege. We conclude that Summit and the State of Tennessee have the better argument on each issue.
I. SEPARATION OF POWERS
Because the issue of constitutional interpretation is a matter of law, our review is de novo on the record with no presumption of correctness accorded to the trial court. Waters v. Farr, 291 S.W.3d 873, 882 (Tenn. 2009). An as-applied constitutional challenge to a statute requires the Court to examine how the statute operates against a particular litigant in light of the specific facts of the case. City of Memphis v. Hargett, 414 S.W.3d 88, 107 (Tenn. 2013). The Court begins the analysis with a presumption that the statute is constitutional. Waters, 291 S.W.3d at 882. Therefore, it must resolve any doubt it may have as to the validity of the statute in favor of its constitutionality. Gallaher v. Elam, 104 S.W.3d 455, 459 (Tenn. 2003).
With the foregoing in mind, public policy concerns should drive the enactment of the statute in question. Martin v. Lear Corp., 90 S.W.3d 626, 631 (Tenn. 2002). Nevertheless, the legislature cannot enact evidentiary rules “that strike at the very heart of a court‘s exercise of judicial power.” Mallard, 40 S.W.3d at 483. This means, in part, that the statute cannot “impair the independent operation of the judicial branch” by
eliminating the trial court‘s discretion to make evidentiary determinations of logical or legal relevancy. Id. To that end, the rule should be “reasonable and workable within the framework already adopted by the judiciary.” Id. at 481.
By enacting the HCQIA, the General Assembly stated that it was “the policy of this state to encourage the improvement of patient safety, the quality of patient care and the evaluation of the quality, safety, cost, processes and necessity of healthcare services by hospitals, healthcare facilities and healthcare providers.”
[A] committee formed or retained by a healthcare organization, an activity of a healthcare organization, or one (1) or more individuals employed by a healthcare organization . . . the purpose of which is to evaluate the safety, quality, processes, costs, appropriateness or necessity of healthcare services.
- Evaluation and improvement of the quality of healthcare services rendered;
- Determination that health services rendered were professionally indicated or were performed in compliance with the applicable standards of care;
- Evaluation of the qualifications, credentials, competence and performance of healthcare providers or actions upon matters relating to the discipline
of any individual healthcare provider; - Reduction of morbidity or mortality;
- Supervision, education, discipline, admission, and the determination of privileges of healthcare providers;
. . . .
. . . .
- (J) Review of professional qualifications or activities of healthcare providers; . . .
To encourage the improvement of patient safety, the quality of patient care, and the evaluation of the quality, safety, and necessity of healthcare services, the General Assembly stated that “certain protections” must be provided to all who participate in or provide information to a QIC.
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, are not only confidential and privileged, they are protected from discovery or admission into evidence.
Records of a QIC and testimony or statements by a healthcare organization‘s officers, directors, trustees, healthcare providers, administrative staff, employees or other committee members or attendees relating to activities of the QIC shall be confidential and privileged and shall be protected from direct or indirect means of discovery, subpoena or admission into evidence in any judicial or administrative proceeding. Any person who supplies information, testifies or makes statements as part of a QIC may not be required to provide information as to the information, testimony or statements provided to or made before such a committee or opinions formed by such person as a result of committee participation.
Id.
Nevertheless, the HCQIA provides an exception to the above; it is known as the “original source” exception. See
We find it significant that the original source exception to the HCQIA privilege parallels the work product doctrine in many respects.6 See
Thus, while the work product doctrine prohibits a litigant from obtaining from the adverse party its work product, the litigant may obtain substantially the same information directly from the original sources. See id. § 8-1[i] at 8-28. Although the HCQIA privilege is problematic, it does not prohibit Dr. Pinkard from obtaining evidence that goes to the heart of the case from the original sources.
With regard to Dr. Pinkard‘s contention that the privilege created by
Admittedly, while our evidentiary rules seek to illuminate the truth, privileges effectively “shut out the light.” Lee Medical, Inc. v. Beecher, 312 S.W.3d 515, 525 (Tenn. 2010) (quoting 1 McCormick on Evidence § 72, at 339 (Kenneth S. Broun, ed., 6th ed. 2006)). Nevertheless, we recognize them “when they protect values deemed even more important than the ascertainment of truth.” Neil P. Cohen, Sarah Y. Sheppeard & Donald F. Paine, Tennessee Law of Evidence § 5.01[4][a], at 5-12 (6th ed. 2013). For example, the attorney-client privilege seeks to encourage honest communication between an attorney and his or her client, thus leading to more effective representation. Culbertson v. Culbertson, 393 S.W.3d 678, 684 (Tenn. Ct. App. 2012); see
in patient safety, and it achieves that objective by encouraging candor within a hospital‘s quality improvement process. See
Because the General Assembly enacted the privilege in furtherance of the public policy of this state, the privilege achieves that objective by encouraging candor within a hospital‘s quality improvement process, and the privilege is reasonable and workable within the framework of evidentiary rules already recognized by the judiciary, see Mallard, 40 S.W.3d at 481, we are unable to conclude that
II. WAIVER
The constitutionality of the HCQIA notwithstanding, Dr. Pinkard contends that Summit waived the HCQIA privilege by utilizing privileged evidence to support its motion for summary judgment. The trial court determined that the HCQIA privilege under
Because the interpretation of a statute is a question of law, we review the trial court‘s decision de novo without any presumption of correctness. Tidwell v. City of Memphis, 193 S.W.3d 555, 559 (Tenn. 2006).
The Tennessee Supreme Court addressed a substantially similar waiver issue in the context of the TPRL in Powell, 312 S.W.3d at 499 prior to the enactment of the HCQIA. The rules of statutory construction permit us to “presume that the General Assembly knows the ‘state of the law.‘” Lee Medical, Inc., 312 S.W.3d at 527 (quoting Murfreesboro Med. Clinic, P.A. v. Udom, 166 S.W.3d 674, 683 (Tenn. 2005)). Therefore, we may presume the General Assembly was familiar with the manner in which our Supreme Court interpreted
Because Powell interpreted the TRPL and not the HCQIA, Powell is not controlling; nevertheless, it is persuasive because the TPRL was superseded by the HCQIA, and the TPRL and the HCQIA are substantially similar in six material respects. First, each statute expressly states that its purpose is to promote confidentiality within a hospital‘s quality improvement process to ensure effective evaluation measures. See
Furthermore, Powell is significant for three primary reasons. First, our Supreme Court determined that no individual held the TPRL privilege because it was not created for the benefit of a specific individual; rather, it “[was] intended to benefit the entire peer review process.” Powell, 312 S.W.3d at 513. Second, the Court held that the TPRL privilege could not be waived. Id. Third, the General Assembly was aware of the Court‘s interpretations of the TPRL prior to the enactment of the HCQIA and the HCQIA contains no provisions that would require a different interpretation of the peer review privilege.
Powell‘s interpretation of the TRPL privilege is also significant because most privileges exist to protect a particular individual called the “holder” and only the holder of the privilege can waive it. Cohen, supra, § 5.01[4][e], at 5-13. For example, the client serves as the holder of the attorney-client privilege, and both spouses serve as the holders of the spousal communication privilege. Culbertson, 393 S.W.3d at 684 (attorney-client privilege); Price, 46 S.W.3d at 799 (spousal privilege). Moreover, these privileges are waivable.9
In the
client commences a legal malpractice action against the attorney. See Cohen, supra, § 5.03[2][d] at 5-20. For similar reasons, the spousal communication privilege is automatically waived in divorce cases. See
Similar to the purpose of the HCQIA, the stated purpose of the TPRL peer review privilege was “to benefit the entire peer review process, not simply the individuals participating in the process.” Powell, 312 S.W.3d at 513 (citations omitted).
The [TPRL] peer review privilege is intended to benefit the entire peer review process, not simply the individuals participating in the process. The proper functioning of the peer review process hinges on the assurance to all persons participating in it—the members of the peer review committees, the persons under review, and the persons who provide information and opinions during the peer review process—that the information and opinions provided and discussed during the proceeding will remain confidential. Any breach in this confidentiality undermines the process. Therefore, we are hesitant to empower persons participating in the process to waive confidentiality unilaterally when the General Assembly itself has recognized no exceptions to the confidentiality requirement.
Under Tennessee law, waiver of a statutory privilege should not be permitted if the waiver undermines public policy or impairs the rights of third parties. Permitting participants in a peer review proceeding to waive the privilege—no matter how meritorious the justification—not only undermines the efficacy of the peer review process but also adversely affects those who provided information or opinions to the peer review committee in reliance on the statutory assurance of confidentiality. Other courts construing peer review statutes similar to Tennessee‘s that do not contain express waiver provisions have concluded that judicially-created waivers are inappropriate.
Id. (internal citations and footnotes omitted).
Based on the foregoing analysis, the Court concluded that the TPRL peer review privilege was intended to benefit the entire peer review process, not simply the individuals participating in the process; thus, no individual could be the holder of the privilege. Id. It also concluded that the courts should not judicially engraft a waiver
provision onto the TPRL because that prerogative should be left up to the General Assembly. Id.
As was the case with the TPRL, the HCQIA does not contain a provision that permits the waiver of the privilege. See Powell, 312 S.W.3d at 512 (“Unlike the peer review statutes in other states,
“[O]ne may waive by agreement the benefit of a statutory provision, unless public policy or the rights of third parties would be violated.” Id. (quoting Black Diamond Coal Mining Co. v. Rankin, 98 S.W.2d 311, 312 (Tenn. 1936)) (emphasis added). In this case, the third parties are those who participated in the quality improvement process and who provided information, documents and/or opinions who may not have participated but for the expectation of confidentiality. See id. at 513. Realizing that any breach of this confidentiality could undermine the quality improvement process, we cannot “empower persons participating in the process to waive confidentiality unilaterally when the General Assembly itself has recognized no exceptions to the confidentiality requirement.” Id. Moreover, other courts construing peer review statutes similar to ours that do not contain express waiver provisions have concluded that judicially-created waivers are inappropriate. Id. (citations omitted). Further the Supreme Court stated that “the proper
course is to defer to the General Assembly, as the author of the peer review privilege, to determine if and under what circumstances the privilege may be waived.” Id.
Based on the reasoning in Powell and the substantial similarities in the two statutory schemes, we have concluded that no individual is the holder of the HCQIA privilege and that the HCQIA privilege cannot be waived. The fact that the privilege cannot be waived is problematic; nevertheless, we may not take the peer review privilege lightly “because weakening this privilege could undermine the confidentiality
IN CONCLUSION
The judgment of the trial court is reversed, and this matter is remanded with costs of appeal assessed against the appellee, John F. Pinkard, M.D.
FRANK G. CLEMENT, JR., P.J., M.S.
Notes
Any information, documents or records, which are not produced for use by a QIC or which are not produced by persons acting on behalf of a QIC, and are otherwise available from original sources, shall not be construed as immune from discovery or use in any judicial or administrative proceeding merely because such information, documents or records were presented during proceedings of such committee.
Except as otherwise provided by constitution, statute, common law, or by these or other rules promulgated by the Tennessee Supreme Court, no person has the privilege to:
- Refuse to be a witness;
- Refuse to disclose any matter;
- Refuse to produce any object or writing; or
- Prevent another from being a witness or disclosing any matter or producing any object or writing.