Kimberly POWELL v. COMMUNITY HEALTH SYSTEMS, INC. et al.
Supreme Court of Tennessee, at Knoxville.
May 24, 2010.
312 S.W.3d 496
Sept. 3, 2009 Session.
Grace E. Daniell and James M. Johnson, Chattanooga, Tennessee, for the appellee, Kimberly Powell.
G. Brian Jackson and David L. Johnson, Nashville, Tennessee, for the Amicus Curiae, Tennessee Hospital Association.
OPINION
WILLIAM C. KOCH, JR., J., delivered the opinion of the Court, in which CORNELIA A. CLARK, J., joined. GARY R. WADE, J., filed a separate opinion concurring in part and concurring in the judgment, in which JANICE M. HOLDER, C.J., joined. SHARON G. LEE, J., not participating.
This appeal involves the evidentiary privilege in the Tennessee Peer Review Law of 1967 [
I.1
Kimberly Powell began working as an operating room secretary at the Cleveland Community Hospital2 on April 19, 2004. Her duties included preparing the surgery schedule, billing patients for operating room services, filling out reports, and managing the payroll of certain other operating room employees.
One of the physicians with whom Ms. Powell worked was Dr. Rickey Hutcheson, an orthopaedic surgeon affiliated with TriState Orthopedics, Rehabilitation and Pain Management Center, P.C. (“TriState Orthopedics“). Ms. Powell scheduled Dr. Hutcheson‘s surgeries, answered his telephone calls, retrieved his surgical instruments, and picked up his lunch. She also compiled a monthly report of the surgeries performed by Dr. Hutcheson and other surgeons employed by TriState Orthopedics.
Ms. Powell asserts that Dr. Hutcheson began to make sexually suggestive comments to her soon after she began working at the hospital. She also asserts that Dr. Hutcheson touched her back, knee, and thigh and that Dr. Hutcheson grabbed her and attempted to kiss her on more than one occasion. In addition, Ms. Powell asserts that she complained about Dr. Hutcheson‘s conduct on at least three occasions to her immediate supervisor.
Ms. Powell was married in June 2004 and became pregnant soon thereafter. At some point,3 an incident occurred in a sup-
Ms. Powell resigned from the hospital in June 2005. On November 16, 2005, she filed suit in the Chancery Court for Bradley County against the hospital, its corporate owner,4 Dr. Hutcheson, and TriState Orthopedics. She sought to recover damages for violation of the Tennessee Human Rights Act [
Ms. Powell claimed that she was particularly distraught about the supply room incident because she had been told by two hospital employees that Dr. Hutcheson had Hepatitis C and because she feared that either she or her unborn child could have contracted the illness from Dr. Hutcheson‘s bodily fluids. Even though tests performed by her obstetrician in September 2005 were negative for both Hepatitis B and Hepatitis C, Ms. Powell pursued aggressive discovery of the hospital‘s employees and medical staff regarding their knowledge of whether Dr. Hutcheson had Hepatitis.
In December 2006, Ms. Powell deposed Ms. Byler who served as the hospital‘s chief quality officer from February 2004 to May 2006. Ms. Byler testified that Sherri Sexton, the hospital‘s infection control director, reported to her. She also stated that the hospital became concerned about the increased rate of post-operative infections occurring during the period from July to October 2004.5 She testified that the hospital discussed the increased infection rate with the staff and also started an investigation into the source of the infections. The investigation included culturing “anything we could possibly think of,” including sutures, equipment, the surgical team, patients, people in the recovery room, and three physicians, including Dr. Hutcheson. According to Ms. Byler, all of the tests of the physicians, including Dr. Hutcheson, were negative. Ms. Byler also testified that she was not aware that Dr. Hutcheson had any infectious diseases and that no one had ever voiced concerns to her about Dr. Hutcheson in that regard. Finally, Ms. Byler testified that the hospital‘s infection rate was lower than the national benchmark and that the increased infection rate in late 2004 was due to “the increase in patients and the patients’ comorbidity.”
In June 2007, Ms. Powell gave notice of her intention to depose Ms. Sexton. The hospital objected to this deposition and, in July 2007, moved for a protective order on the ground that the information sought from Ms. Sexton was protected by the
Ms. Sexton testified that her duties as infection control director were closely linked to the work of the hospital‘s Quality Review Committee.7 She stated that when the hospital staff notified her that an infection had occurred, she would routinely conduct a limited investigation to determine whether the infection was hospital-related. This investigation included (1) examining the patient‘s chart, (2) possibly interviewing the patient, (3) reading the physician‘s notes, and (4) interviewing the staff. She also testified that her duties included educating the staff regarding the proper precautions and care for infections and to see to it that these precautions were being observed.
Ms. Sexton also testified that in addition to these limited investigations, she conducted specific tailored or targeted investigations at the request of or with the approval of the Quality Review Committee. The purpose of these investigations was to identify the source of an infection. Ms. Sexton stated that she conducted five to six of these investigations during her tenure and that the Quality Review Committee never refused her request to conduct one of these investigations. These more in-depth investigations included (1) reviewing charts, (2) interviewing patients and staff, (3) culturing equipment and staff members, and (4) tracking patients. The reports of these investigations were provided to the chairperson of the Quality Review Committee who distributed them to the members of the Committee either separately or included them with other reports submitted to the Committee.
Based on Ms. Sexton‘s deposition, Ms. Powell renewed her request to depose Ms. Sexton more broadly regarding her knowledge of any increased rate of post-operative nosocomial infections at the hospital and the hospital‘s awareness of any infectious diseases that Dr. Hutcheson may have had. Ms. Powell also requested the hospital and Ms. Sexton to produce the reports, tests, and other documentation that Ms. Sexton had compiled related to the increased rate in post-operative infections, as well as the log books for the operating and recovery rooms.
On February 14, 2008, the trial court filed an order allowing the deposition of Ms. Sexton because “the information sought by the Plaintiff is not documentation generated during the peer review process.” The trial court found that the requested information was (1) created as part of the hospital‘s regular course of
A divided panel of the Court of Appeals affirmed the trial court. The majority addressed the propriety of deposing Ms. Sexton about the information she obtained during an investigation “apparently at the direction оf the review committee.” Based on Ms. Sexton‘s testimony that such investigations were “part of her normal job duties,” the majority determined that documents in Ms. Sexton‘s possession would be discoverable because they were “records she made in conjunction with the regular course of business of the hospital” and because Ms. Sexton was the “original source” of the documents that she created. The majority also concluded that “[t]he fact that such records or the information was provided to the peer review committee would not prevent its discovery.” Powell v. Cmty. Health Sys., Inc., 2009 WL 17850, at *5. In his dissent, Judge Susano concluded that the investigation did not occur in the regular course of the hospital‘s business and that Ms. Sexton was not the original source of the information because she merely compiled the information collected from original sources. Powell v. Cmty. Health Sys., Inc., 2009 WL 17850, at *6.
We granted the hospital‘s
II.
The standard of review in discovery disputes involving the application of
When a discovery dispute involves the application of a privilege, the court‘s judgment should be guided by the following three principles. First, Tennessee‘s discovery rules favor discovery of all relevant, non-privileged information. Second, even though privileges do not facilitate the fact-finding process, they are designed to protect interests and relationships that are regarded as sufficiently important to justify limitations on discovery. Third, while statutory privileges should be fairly construed according to their plain meaning, they need not be broadly construed. Lee Medical, Inc. v. Beecher, 312 S.W.3d at 525.
III.
Despite the relative longevity of the privilege in
The threshold issue in any case involving the application of an evidentiary privilege is whether the privilege being asserted applies to the materials sought to be discovered. Lee Medical, Inc. v. Beecher, 312 S.W.3d at 526. Analyzing this issue requires a two-step analysis. With specific regard to the privilege in
This appeal presents four issues regarding the application of the privilege in
IV.
Consistent with the approach we employed in Lee Medical, Inc. v. Beecher, the first question we must address is whether the subject matter of the underlying proceeding is covered by
A.
The lynchpin of the hospital‘s privilege claim is its Quality Review Committee. Despite the committee‘s central importance to this discovery dispute, the record on appeal contains surprisingly little authoritative information regarding (a) the committee‘s composition, (b) its purpose and responsibilities, (c) its relationship to other hospital committees or the hospital administration, or (d) the manner in which the committee carries out its tasks. Virtually all of the information in the record regarding the committee was provided by Ms. Sexton. Ms. Sexton was not a member of the committee, but she рrovided staff support to the committee in her capacity as the hospital‘s infection control director.
Ms. Sexton was able to provide only general information regarding the composition of the hospital‘s Quality Review Committee.10 Both Ms. Sexton and Ms. Byler testified that one of the committee‘s duties was to track the infection rate at the hospital and to direct and oversee the hospital‘s efforts to minimize the incidence of infections. Ms. Sexton explained that the “[q]uality review committee as I understand it, is a committee that is designed specifically to allow for identification of areas that could become problematic and to allow internal review and peer evaluation to correct problems or correct areas that could become problematic.” She also stated that the committee was “a protected forum so that the hospital can look at and fix things that could become a problem later on down the road.”
According to Ms. Sеxton, she assisted the committee in monitoring and addressing the infection rate at the hospital in two ways. First, Ms. Sexton was responsible for collecting information regarding infections and providing a monthly report to the committee. Ms. Sexton testified that she obtained this routine information from many sources, including: (a) the hospital‘s daily census, (b) the daily report of surgeries to be performed, (c) reports from staff members, and (d) reports of patients admitted to the hospital with infections or other conditions of concern.11 Ms. Sexton also testified that she examined the patients and their charts when infections and conditions of concern were reported.
In addition to making sure that the hospital staff was taking the proper precau-
Ms. Sexton provided her monthly report only to the chairperson of the Quality Review Committee. The chairperson of the committee included Ms. Sexton‘s report in a master report that was reviewed by the committee at its monthly meetings. According to Ms. Sexton, all copies of the master report were turned in following the committee‘s meeting, and only one copy of the report was retained by the committee. Once the committee reviewed and accepted her report, Ms. Sexton routinely destroyed the work papers she had used to prepare her report.
Ms. Sexton performed a second function for the Quality Review Committee apart from her normal daily duties as infection control director. Whenever the data she routinely collected suggested an increased incidеnce of infection in any part of the hospital, Ms. Sexton reported her concern to the committee and requested the committee‘s permission to conduct a focused or targeted investigation to determine the cause or the source of the infection. Ms. Sexton explained that advance committee authorization was required for three reasons. First, these focused investigations invaded the privacy of the patients and the staff. Second, they had a potential for causing alarm and concern. Finally, they disrupted the regular work at the hospital and placed significant additional demands on the staff.
Ms. Sexton testified that these focused investigations were not part of her regular duties and that she undertook only five or six of these investigations during her tenure as the hospital‘s infection control director.12 She also testified that the reports of the results of these investigations were provided only to the Quality Review Committee.
B.
Both Ms. Byler and Ms. Sexton testified that the Quality Review Committee, apart from its general oversight of the operation of the hospital, had the power to initiate specific, targeted investigations. Ms. Byler testified that the committee initiated just such an investigation into the increased nosocomial infection rate in the hospital in late 2004. She confirmed that this investigation focused on the personnel in the operating and recovery rooms and all the surgeons, including Dr. Hutcheson and two other orthopaedic surgeons. The investigation included taking “nasal culture[s]” from Dr. Hutcheson and the two other orthopaedic surgeons.
We held in Lee Medical, Inc. v. Beecher that the privilege in
V.
Having determined that the focused investigation into the increase in the nosocomial infection rate in late 2004 is a peer review proceeding for the purpose of
Rather than addressing the plain language of this statutory definition head on, Ms. Powell asserts, with scant legal support, that committees performing infection control functions should not be considered to be peer review committees. We decline to adopt such a broad rule. A majority of jurisdictions that have addressed this issue have held that an infection control committee is a peer review committee when it is engaging in activities aimed at improving the quality of health care. E.g., Davidson v. Light, 79 F.R.D. 137, 139-41 (D.Colo. 1978); Arnett v. Dal Cielo, 14 Cal.4th 4, 56 Cal.Rptr.2d 706, 923 P.2d 1, 10 (1996); Santa Rosa Mem‘l Hosp. v. Superior Court, 174 Cal.App.3d 711, 220 Cal.Rptr. 236, 242-43 (1985); Babcock v. Bridgeport Hosp., 251 Conn. 790, 742 A.2d 322, 347 (1999); Cobb County Kennestone Hosp. Auth. v. Martin, 208 Ga.App. 326, 430 S.E.2d 604, 605-06 (1993); Ekstrom v. Temple, 197 Ill.App.3d 120, 142 Ill.Dec. 910, 553 N.E.2d 424, 427-28 (1990); Smith v. Lincoln Gen. Hosp., 605 So.2d 1347, 1348 (La.1992); In re “K”, 132 N.H. 4, 561 A.2d 1063, 1068-69 (1989); In re Univ. of Texas Health Ctr., 33 S.W.3d 822, 825 (Tex.2000).
Ms. Powell‘s arguments against treating the hospital‘s Quality Review Committеe as a peer review committee rest chiefly on her assertion that the purpose of the peer review process is to identify and expose physicians who engage in misconduct rather than to conceal them. She argues that to permit the hospital to invoke the privilege in
These broadside arguments against the privilege in
Based on the evidence in this record, it does not appear that the Quality Review Committee was investigating a particular infection incident during the time period of interest to Ms. Powell. To the contrary, both Ms. Sexton and Ms. Byler stated that the hospital was conducting a focused investigation, authorized by the Quality Review Committee, into the increased rate of post-operative nosocomial infections in late 2004. The purpose of this investigation was to evaluate and improve the quality of the health care at the hospital. Based on this evidence, the only conclusion that can be drawn is that the committee is a peer review committee as defined in
VI.
Ms. Powell asserts that even if the hospital‘s Quality Review Committee was functioning as a peer review committee when it conducted the focused investigation into the increаsed rate of post-operative infections in late 2004, the information obtained during the investigation is not privileged because it was obtained in the regular course of the hospital‘s business. Her tautological argument is that because the hospital is legally required to have a functioning Quality Review Committee, all records of the committee must necessarily be made in the regular course of the hospital‘s business.
This argument is based on the provision in
In applying similar privileges, courts in other jurisdictions have distinguished between records prepared in the regular course of a hospital‘s business independent of a peer review proceeding and records prepared as part of a peer review proceeding. These courts have held that records received or created in the regulаr course of the hospital‘s business prior to the commencement of or independent of a peer review proceeding are not privileged. Thus, regularly prepared complaints and incident reports are not privileged even though they might precipitate a peer review proceeding.14 At the same time, other courts have recognized that documents made or prepared exclusively for the peer review committee are privileged.15
We agree with the Court of Appeals’ decision in Roy v. City of Harriman and with the decisions in other jurisdictions that the exception for records made in the regular course of the hospital‘s business applies only to records that exist independently of the peer review process. Any other interpretation would render the privilege in
VII.
Ms. Powell also insists that she should be permitted to depose Ms. Sexton regarding the focused investigation of the increased rate of post-operative infections in
We addressed the “original source” exception to the peer review privilege in 2007 in a case involving the efforts of a physician to obtain information that had been submitted to a hospital during its credentialing process. Stratienko v. Chattanooga-Hamilton County Hosp. Auth., 226 S.W.3d 280, 286 (Tenn.2007). We held that all the information submitted to the hospital‘s credentialing committee was privileged and could not be obtained from the hospital. Stratienko v. Chattanooga-Hamilton County Hosp. Auth., 226 S.W.3d at 286-87. However, noting that the information being sought had been furnished to the credentialing committee by original sources “outside the committee,” we held that information could be obtained directly from the original sources unless it was otherwise privileged. Stratienko v. Chattanooga-Hamilton County Hosp. Auth., 226 S.W.3d at 287.
We noted in Stratienko that the term “original source” referred to sources “outside the committee.” We must now decide whether an agent of a peer review committee or an independent third party acting at the request of а peer review committee is likewise an “original source” for the purpose of applying the “original source” exception. We have determined that persons acting on behalf of or at the request or direction of a peer review committee performing its peer review functions are not “original sources” from whom the information prepared for the committee‘s use can be discovered. To hold otherwise would be to eviscerate the privilege.
The peer review privilege in
Ms. Sexton is not an original source for the purposes of
VIII.
As a final matter, Ms. Powell asserts that the hospital waived its right to rely on the privilege in
A.
It is axiomatic that parties will not be permitted to raise issues on appeal that they did not first raise in the trial court. Barnes v. Barnes, 193 S.W.3d 495, 501 (Tenn.2006); City of Cookeville ex rel. Cookeville Reg‘l Med. Ctr. v. Humphrey, 126 S.W.3d 897, 905-06 (Tenn.2004); see also
Determining whether parties have waived their right to raise an issue on appeal should not exalt form over substance. Appellate courts must carefully review the record to determine whether a party is actually raising an issue for the first time on appeal. Fayne v. Vincent, 301 S.W.3d at 171 n. 6. The fact that the party phrased the question or issue in the trial court in a different way than it does on appeal does not amount to a waiver of the issue. Fahrner v. SW Mfg., Inc., 48 S.W.3d 141, 143 n. 1 (Tenn.2001) (noting that “the failure to use the right label does not result in a waiver“).
Contrary to the hospital‘s assertion, the record of the trial court proceedings reflects that Ms. Powell opposed the hospital‘s claim of privilege with regard to Ms. Sexton‘s testimony on the ground that the hospital had permitted Ms. Byler to be deposed on the same subject. Both in her response to the hospital‘s motion for a protective order and in her motion to depose Ms. Sexton a second time, Ms. Powell argued that
during the deposition of Ms. Byler, the hospital did not claim that any of the information pertaining to infection rates at the hospital, the investigation of the infection rates, or Dr. Hutcheson‘s infection rate, was part of an investigation by a medical review committee or was privileged or immune from discovery.
While Ms. Powell may not have used the word “waive” or “waiver” in her papers, her argument put both the hospital and the trial court on notice that she opposed the hospital‘s claim of privilege on the ground that the hospital had permitted Ms. Byler to testify on the same subjects without asserting the privilege. Accordingly, we have concluded that the hospital has not demonstrated that Ms. Powell failed to raise her “waiver” of privilege argument in the trial court.16
We are dealing here with a statutory, as opposed to a common-law, privilege. We must not take the matter of waiver of this privilege lightly because weakening this privilege could undermine the confidentiality that the privilege is intended to protect. We have already pointed out that
Our waiver analysis must begin with the statute itself. Unlike the peer review statutes in other states,18
In the absence of a statute to the contrary, only the person entitled to the benefit of a privilege may waive the privilege. See Smith County Educ. Ass‘n v. Anderson, 676 S.W.2d 328, 333 (Tenn. 1984). However, the ability to waive a privilege, even a statutory one, is not without limit. Over seventy years ago, we endorsed the principle that “one may waive by agreement the benefit of a statutory provision, unless public policy or the rights of third parties would be violated.” Black Diamond Coal Mining Co. v. Rankin, 170 Tenn. 651, 653, 98 S.W.2d 311, 312 (1936). Thus, in the absence of an express statutory waiver provision, we must ascertain (1) for whose benefit the peer review privilеge exists and (2) whether permitting the waiver of this privilege is contrary to
The peer review privilege is intended to benefit the entire peer review process, not simply the individuals participating in the process. See, e.g., Marshall v. Planz, 145 F.Supp.2d 1258, 1273 (M.D.Ala.2001); Terre Haute Reg‘l Hosp., Inc. v. Basden, 524 N.E.2d 1306, 1311 (Ind.Ct.App.1988); State ex rel. St. John‘s Reg‘l Med. Ctr. v. Dally, 90 S.W.3d 209, 214-15 (Mo.Ct.App.2002). 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.20
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. See, e.g., Armstrong v. Dwyer, 155 F.3d 211, 221 (3d Cir.1998); Emory Clinic v. Houston, 258 Ga. 434, 369 S.E.2d 913, 914 (1988); Ayash v. Dana-Farber Cancer Inst., 443 Mass. 367, 822 N.E.2d 667, 692 n. 28 (2005); Ollman v. Wis. Health Care Liability Ins. Plan, 178 Wis.2d 648, 505 N.W.2d 399, 406-07 (Wis.Ct.App.1993).
We concur with these decisions. While we are not unmindful that declining to engraft a waiver provision onto
IX.
In summary, we have determined that the underlying proceeding in this case was a peer review proceeding for the purpose of
Accordingly, we reverse the judgment of the Court of Appeals and find that the trial court erred by failing to grant the hospital‘s motion to prevent Ms. Powell from deposing Ms. Sexton or from requiring Ms. Sexton to produce the reports she prepared for the Quality Review Committee relating to the hospital‘s focused investigation of physicians regarding increased nosocomial infection rates in late 2004. Therefore, we reverse the trial court‘s February 14, 2008 order and remand the case to the trial court for further proceedings consistent with this opinion. The costs of this appeal are taxed to Kimberly Powell for which execution, if necessary, may issue. The portion of the costs associated with the filings of the Tennessee Hospital Association as amicus curiae are hereby taxed to the Tennessee Hospital Association.
GARY R. WADE, J., filed a separate opinion concurring in part and concurring in the judgment, in which JANICE M. HOLDER, C.J., joined.
SHARON G. LEE, J., not participating.
GARY R. WADE, J., concurring in part and concurring in the judgment.
I concur in the judgment and in the reasoning of all but Sections III and IV.B of the majority‘s opinion. In Section III, the majority holds that “the first step” in addressing whether to apply the peer review privilege set forth in Tennessee Code Annotated section 63-6-219(e) “is to determine whether the subject matter of the underlying proceeding is within the subject matter covered by the statute.” In Section IV.B, the majority relies on the rationale developed in Lee Medical, Inc. v. Beecher, 312 S.W.3d 515 (Tenn.2010), оbserving “that the privilege in [section] 63-6-219(e) applies only to peer review proceedings regarding a physician‘s professional conduct, competence, and ability to practice medicine.” The majority determines “that some, but not all, of the functions of the Quality Review Committee [at Cleveland Community Hospital] were peer review proceedings involving the professional conduct, competence, and ability to practice medicine of the physicians on the hospital‘s medical staff.”
For the reasons set forth in the dissent in Lee Medical, I believe this step in the majority‘s analysis is without basis in either the plain language or the legislative history of the peer review statute. The majority correctly holds that the Quality Review Committee was a “peer review committee” as defined in Tennessee Code Annotated section 63-6-219(c) because the committee conducted a focused investigation into the increased rate of postoperative infections, the purpose of which “was to evaluate and improve thе quality of the health care at the hospital.” Furthermore, neither of the two exceptions to the peer review privilege apply because the documents and records related to the Quality Review Committee‘s investigation were generated outside the regular course of the hospital‘s business, and the hospital‘s infection control director, Sherri Sexton, was not an “original source” of the information that she collected at the committee‘s behest. See
I am authorized to state that Chief Justice HOLDER joins in this concurring opinion.
Notes
One (1) proper function of such committees shall include advocacy for physicians before other medical peеr review committees, peer review organizations, health care entities, private and governmental insurance carriers, national or local accreditation bodies, and the state board of medical examiners of this or any other state. The disclosure of confidential, privileged peer review committee information to such entities during advocacy, or as a report to the board of medical examiners under § 63-6-214(d), or to the affected physician under review, does not constitute either a waiver of confidentiality or privilege.