PAYTON CASTILLO v. DAVID LLOYD REX, M.D. ET AL.
No. E2022-00322-SC-R11-CV
IN THE SUPREME COURT OF TENNESSEE AT KNOXVILLE
05/09/2025
September 5, 2024 Session;
In this appeal, we examine the privilege provided under
Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Appeals Affirmed on Separate Grounds; Remanded to the Trial Court
DWIGHT E. TARWATER, J., delivered the opinion of the Court, in which HOLLY KIRBY, C.J., JEFFREY S. BIVINS, SARAH K. CAMPBELL, and MARY WAGNER, JJ., joined.
Cara E. Weiner and Christopher R. Ramsey, Chattanooga, Tennessee, for the appellants Memorial Health Care System, Inc. and Memorial Health Care System, Inc. d/b/a/ CHI Memorial.
H. Dean Clements and Brie Allaman Stewart, Chattanooga, Tennessee, for the
J. Eric Miles and Brigham A. Dixson, Nashville, Tennessee, for the appellants, Virtual Radiologic Services, LLC, David Lloyd Rex, Virtual Radiologic Corporation, Virtual Radiologic Professionals, LLC, and Virtual Radiologic Professionals of Minnesota, P.A.
Alix C. Michel and David J. Ward, Chattanooga, Tennessee, for the appellee, Payton Castillo.
Raymond Grant Lewallen, Jr., Knoxville, Tennessee, for the Amicus Curiae, Tennessee Defense Lawyers Association.
Craig P. Sanders and Ashley D. Cleek, Jackson, Tennessee, for the Amicus Curiae, Tennessee Hospital Association.
W. Bryan Smith, Memphis, Tennessee, and Brian G. Brooks, Greenbrier, Arkansas, for the Amicus Curiae, Tennessee Trial Lawyers Association.
OPINION
I. FACTUAL AND PROCEDURAL HISTORY
In the early morning hours of January 3, 2020, Marshal Castillo arrived with his wife Payton Castillo at CHI Memorial Hospital‘s (“Memorial“) emergency room experiencing severe abdominal pain.1 The physicians ordered a CT scan and ultrasound. The CT scan was interpreted by Dr. David Lloyd Rex, who was employed by Virtual Radiologic Professionals, LLC (“VRP“), and the ultrasound was interpreted by Dr. Thomas Rimer, a physician employed by Diagnostic Imaging Consultants, P.C. (“Diagnostic“). Both Dr. Rex and Dr. Rimer concluded the respective scans were unremarkable. Based upon those conclusions, the treating physicians discharged Mr. Castillo from the hospital around ten in the morning. Mr. and Mrs. Castillo went home with instructions for Mr. Castillo to drink fluids and eat plenty of fiber. A few hours later, Mrs. Castillo found her husband on the floor of their bathroom unconscious and called for an ambulance that returned Mr. Castillo to Memorial. Mr. Castillo passed away shortly thereafter. It
Following Mr. Castillo‘s death, Memorial convened an internal quality improvement committee (“QIC“) to review the care and treatment rendered to Mr. Castillo. After the QIC review, Anthony Houston, Chief Operating Officer of Memorial, invited Mrs. Castillo to the hospital to conduct what he later described as a “Communication and Optimal Resolution” meeting, otherwise known as a CANDOR meeting.2 Present at the meeting on behalf of Memorial were Mr. Houston, Dr. Matthew Kodsi, Vice President of Medical Affairs, and Ms. Jessica Stanley, Director of Quality. Mrs. Castillo was accompanied by her parents.
Mrs. Castillo was not informed of the purpose of the meeting beforehand, did not sign any documents at the meeting, and was not told that the information being shared with her was confidential or privileged in any way. During the meeting, Mr. Houston expressed his condolences and told Mrs. Castillo the CT scan revealed an internal bleed and her husband should not have been discharged from the hospital.
On December 28, 2020, Mrs. Castillo filed this healthcare liability action in Hamilton County Circuit Court, naming as defendants Memorial and the other entities and physicians3 responsible for her husband‘s care. As the case proceeded to discovery, Mrs. Castillo was deposed by counsel for Memorial, who questioned her about the CANDOR meeting. Memorial‘s counsel made repeated and detailed inquiries into the statements by Mr. Houston to Mrs. Castillo regarding the quality of care Mr. Castillo received at Memorial.
Soon after, Plaintiff‘s counsel deposed Dr. Kodsi and Ms. Stanley and questioned both about what was discussed at the CANDOR meeting and any statements made to Mrs. Castillo regarding her husband‘s care. Despite affirmatively eliciting the same information during Mrs. Castillo‘s deposition, counsel for Memorial objected and advised the witnesses not to answer on the basis that the information sought was privileged under the QIC privilege, which is a form of peer review privilege codified at
The trial court granted in part and denied in part Memorial‘s motion for a protective
Defendants separately moved for permission to file an interlocutory appeal, which the trial court granted. The Court of Appeals granted Defendants’ motions and consolidated the appeals for review. Castillo v. Rex, No. E2022-00322-COA-R9-CV, 2023 WL 6464103, at *1 (Tenn. Ct. App. Oct. 4, 2023), perm. app. granted, (Tenn. Mar. 14, 2024). Two questions were certified for review:
- Whether statements made by representatives of Defendant [] Memorial in a CANDOR meeting, which are based on information obtained in a QIC proceeding, are privileged under [Tennessee Code Annotated section] 68-11-272.
- Whether testimony from representatives of Defendant [] Memorial regarding statements made in a CANDOR meeting, which are based on information obtained in a QIC proceeding, constitutes “direct or indirect discovery” as prohibited by [Tennessee Code Annotated section] 68-11-272.
The Court of Appeals affirmed on both issues, noting that “[t]he privilege simply does not apply to statements made at the CANDOR meeting whether or not such statements were based upon information obtained from a QIC proceeding.” Id. at *4. Focusing on the competing purposes of the QIC privilege and CANDOR meetings, the appellate court found that “[t]he statements made at the CANDOR meeting were not designed to ‘evaluate the safety, quality, processes, costs, appropriateness or necessity of healthcare services‘” and, therefore, the QIC privilege does not apply. Id. (quoting
Defendants applied for permission to appeal pursuant to
II. STANDARD OF REVIEW
We use the abuse of discretion standard to review discovery determinations. Funk v. Scripps Media, Inc., 570 S.W.3d 205, 210 (Tenn. 2019) (citing Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn. 2010)). A court abuses its discretion by “(1) applying an incorrect legal standard, (2) reaching an illogical or unreasonable decision, or (3) basing its decision on a clearly erroneous assessment of the evidence.” Lee Med., 312 S.W.3d at 524 (citing State v. Ostein, 293 S.W.3d 519, 526 (Tenn. 2009); Konvalinka v. Chattanooga-Hamilton Cnty. Hosp. Auth., 249 S.W.3d 346, 358 (Tenn. 2008); Doe 1 ex rel. Doe 1 v. Roman Cath. Diocese of Nashville, 154 S.W.3d 22, 42 (Tenn. 2005)). Thus, we review discretionary decisions by deciding “(1) whether the factual basis for the decision is properly supported by evidence in the record, (2) whether the lower court properly identified and applied the most appropriate legal principles applicable to the decision, and (3) whether the lower court‘s decision was within the range of acceptable alternative dispositions.” Id. (citing Flautt & Mann v. Council of Memphis, 285 S.W.3d 856, 872–73 (Tenn. Ct. App. 2008)).
The factual findings of the lower court are afforded a presumption of correctness, unless the evidence preponderates against it.
III. ANALYSIS
We begin our analysis by discussing the evolution of the peer review privilege in Tennessee. Next, we provide a general overview of CANDOR meetings and how, if at all, they impact the case before us. We then analyze the applicability of the QIC privilege provided under the Patient Safety and Quality Improvement Act in this case. Finally, we address whether the QIC privilege may be waived.
Peer Review Privilege
“Medical peer review has become the principal method of evaluating the quality of patient care.” Rechsteiner v. Hazelden, 753 N.W.2d 496, 505 (Wis. 2008); see also Lisa M. Nijm, Pitfalls of Peer Review: The Limited Protections of State and Federal Peer Review Law for Physicians, 24 J. Legal Med. 541, 541 (2003) (“Peer review serves as one of medicine‘s most effective risk management and quality improvement tools.“). To encourage candid evaluation of patient care, many states, including Tennessee, have granted peer review committees certain protections. See
Tennessee has long recognized an evidentiary privilege among participants of a peer review proceeding. See Act of May 26, 1967, ch. 348, § 1, 1967 Tenn. Pub. Acts 1066 (codified at
In 2010, this Court reviewed the TPRL to determine if a hospital waived its right
Shortly thereafter, the General Assembly passed the Patient Safety and Quality Improvement Act of 2011 (the “PSQIA“), replacing the TPRL. Patient Safety and Quality Improvement Act of 2011, ch. 67, §§ 1–6, 2011 Tenn. Pub. Acts, https://publications.tnsosfiles.com/acts/107/pub/pc0067.pdf (codified at
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.
The Court of Appeals subsequently addressed the PSQIA privilege in Pinkard v. HCA Health Services and was confronted with the same waiver issue addressed by Powell. 545 S.W.3d 443, 454 (Tenn. Ct. App. 2017), perm. app. denied, (Tenn. Nov. 16, 2017); see Powell, 312 S.W.3d at 512–13. Pinkard involved a dispute between a healthcare organization and a physician after the physician‘s staff privileges were revoked. Pinkard, 545 S.W.3d at 446. The physician claimed the healthcare organization acted in bad faith and with malice during a QIC proceeding. Id. The physician argued that because the healthcare organization had already submitted a transcript and other records from the proceeding in support of its summary judgment motion, it had waived the privilege. Id. at 449, 454. Relying on Powell‘s interpretation of the TPRL, the court found that under the PSQIA, “the beneficiaries of the statutory privilege are all who participate in or provide information to a QIC.” Id. at 457. The court concluded that because the healthcare organization was simply one of the beneficiaries of the privilege and not the holder of the privilege, the healthcare organization could not waive the privilege:
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 [QIC] privilege and that the [QIC] 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 that the privilege is intended to protect.” In this case, no person is the holder of the privilege and the [QIC] statutory scheme does not expressly authorize the waiving of the privilege. Therefore, we affirm the trial court‘s ruling that the privilege cannot be waived.
Id. at 457–58 (quoting Powell, 312 S.W.3d at 512) (citation omitted).
CANDOR
This case is unique as the purportedly privileged information was directly disclosed to the plaintiff during a “CANDOR” meeting by hospital management. According to the Agency for Healthcare Research and Quality, CANDOR stands for Communication and Optimal Resolution, and “is a process that health care institutions and practitioners can use to respond in a timely, thorough, and just way when unexpected events cause patient harm.” Communication and Optimal Resolution, Agency for Healthcare Rsch. & Quality, https://www.ahrq.gov/patient-safety/settings/hospital/candor/index.html (last visited Apr. 24, 2025). “[A] CANDOR meeting is held with the patient or the family following an adverse healthcare event to provide information concerning the details of the care provided and to facilitate an optimal resolution.” Castillo, 2023 WL 6464103, at *4. The goals of a CANDOR meeting are to “to demonstrate respect for the patients, families, and caregivers impacted by harm and to address many of the quality and safety priorities identified by health care organizations.” Module 1: An Overview of the CANDOR Process AHRQ Communication and Optimal Resolution Toolkit, Agency for Healthcare Rsch. & Quality, https://www.ahrq.gov/patient-safety/settings/hospital/candor/modules/notes1.html (last visited Apr. 24, 2025) [hereinafter “AHRQ Toolkit“]; see
Only four states have enacted CANDOR statutes: Colorado, Iowa, Minnesota, and Utah. See
Notably, Tennessee has no analogous statute to govern these types of meetings. While the record does not establish that Memorial used set standards, procedures,
While the parties have labeled this meeting as a CANDOR meeting, this label does not control our analysis. Tennessee does not recognize any additional protections afforded to the purported CANDOR process. We will refer to this meeting as a CANDOR meeting for consistency, but we decline to superimpose the law of another state to the facts at issue here. In this pseudo-CANDOR context, we cannot presume this meeting was confidential or privileged without an applicable statute or agreement to that effect.
Applicability of the QIC Privilege
This Court‘s analysis of a privilege is guided by three legal principles. Lee Med., 312 S.W.3d at 525. First, Tennessee rules of discovery and evidence favor the discoverability of all relevant, non-privileged information in the search for truth. Id. Second, “privileges present obstacles to the search for the truth. . . . [and] protect interests and relationships which, rightly or wrongly, are regarded as of sufficient social importance to justify some sacrifice of the availability of evidence relevant to the administration of justice.” Id. (internal quotation marks and citations omitted) (quoting 1 McCormick on Evidence § 72, at 339 (Kenneth S. Broun, ed., 6th ed. 2006)). And third, statutory privileges are to be strictly construed according to their plain language. Id. at 525–26.
Considering these principles, we must first determine if the privilege under
We begin with the statute:
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.
We must first determine whether the statements at the meeting arose from the QIC proceeding. See Lee Med., 312 S.W.3d at 536. The record unequivocally establishes that “[a]ny discussion during the CANDOR meeting of the quality or appropriateness of the healthcare rendered or not rendered to Mr. Castillo was based on the QIC [r]eviews.” Dr. Kodsi stated exactly that in his affidavit. We find that the statements made to Mrs. Castillo “arose from” the QIC. See id. Because these statements originated or “stemmed from” the QIC, they are “related to the activities of the QIC.” See
Mrs. Castillo contends that statements made during a CANDOR meeting “should not be afforded the privilege contained in [section] 68-11-272(c)(1)” because CANDOR meetings serve a different purpose than QIC proceedings. We are not persuaded by this argument. In fact, the purpose of a CANDOR meeting and QIC proceedings might be more complementary than contradictory, both encouraging an open dialogue of patient care. Compare
Mrs. Castillo and the Court of Appeals mainly rely on Reynolds v. Gray Medical Investors, LLC. for the proposition that the QIC privilege does not apply to the statements because they were made at the CANDOR meeting. 578 S.W.3d 918, 923 (Tenn. Ct. App. 2018); Castillo, 2023 WL 6464103, at *3–4 (citing to the stated purpose of the Colorado CANDOR Act). The issue before the court in Reynolds was whether a healthcare provider can use the QIC privilege to protect statements concerning an alleged attempt to coerce perjury or commit a fraud simply because such statements were made during a QIC meeting. Reynolds, 578 S.W.3d at 920. Relying on the purpose of the statute, the court accurately concluded that the QIC privilege is not intended to allow “healthcare providers to threaten or coerce employees so as to suborn perjury or commit fraud.”5 Id. at 923. Clearly, protecting those statements would be “directly contrary to the purpose of
Mrs. Castillo also argues that because section 68-11-272 does not specifically reference CANDOR meetings, the privilege cannot apply. We disagree. It would be illogical to assume the General Assembly intended to exempt CANDOR meetings from QIC protections when Tennessee law does not even recognize CANDOR meetings at all. The fact that Memorial refers to these meetings by a certain name that other states recognize by statute does not entitle them to special treatment under Tennessee law. See
Next, Mrs. Castillo contends that the privilege does not apply because the participants of the CANDOR meeting did not personally participate in the QIC review and are therefore not the persons protected by the statute. Mrs. Castillo asks us to constrain our interpretation of the first sentence of subsection (c)(1) through the lens of the second sentence, which specifies “[a]ny 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.”
The second sentence provides an additional protection that is not a substitute for the protections afforded in the preceding sentence, protecting more broadly “[r]ecords of a QIC and testimony or statements by a healthcare organization‘s officers . . . relating to activities of the QIC[.]”
The statements based on the conclusions of the QIC made by hospital management during the CANDOR meeting relate to the activities of the QIC and are privileged. This information is ordinarily “protected from direct or indirect means of discovery, subpoena or admission into evidence in any judicial or administrative proceeding.”
Waiver
“Our waiver analysis must begin with the statute itself.” Powell, 312 S.W.3d at 512. The plain and ordinary meaning of the text guides our analysis. Coleman v. Olson, 551 S.W.3d 686, 694 (Tenn. 2018) (“[W]e first must look to the text of the statute and give the words of the statute ‘their natural and ordinary meaning in the context in which they appear and in light of the statute‘s general purpose.‘” (quoting Mills v. Fulmarque, Inc., 360 S.W.3d 362, 368 (Tenn. 2012))). “We consider the whole text of a statute and interpret each word ‘so that no part will be inoperative, superfluous, void or insignificant.‘” State v. Deberry, 651 S.W.3d 918, 925 (Tenn. 2022) (quoting Bailey v. Blount Cnty. Bd. of Educ., 303 S.W.3d 216, 228 (Tenn. 2010)); see also Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 167–69 (2012) (discussing the “whole text canon“).
Like its predecessor, the PSQIA does not contain an express waiver provision stating that the QIC privilege may be waived. See
The doctrine of waiver, from its nature, is applicable, generally speaking, to all rights or privileges to which a person is legally entitled, whether secured by contract[,] conferred by statute, or guaranteed by the constitution, provided such rights or privileges rest in the individual, and are intended for his sole benefit. A right or privilege given by statute may be waived or surrendered, in whole or in part, by the party to whom or for whose benefit it is given, if he does not thereby destroy the rights and benefits conferred upon or flowing to another in or from said statute or other legal or equitable source. Even when a statute in so many words declares a transaction void for want of certain forms, the party for whose protection the requirement is made often may waive it, void being held to mean only voidable at the party‘s choice. A waiver is not, however, allowed to be operative where it would infringe upon the rights of others, or would be against public policy or morals. Where the object of a law is the good of the public as well as of the individual, such
protection to the state cannot, at will, be waived by any individual, an integral part thereof. The fact that the individual is willing to waive his protection cannot avail. The public good is entitled to protection and consideration; and if, in order to effectuate the object, there must be enforced protection to the individual, such individual must submit to such enforced protection for the public good.
Black Diamond Coal Mining Co. v. Rankin, 98 S.W.2d 311, 312 (Tenn. 1936) (quoting 27 R.C.L. 906–07, para. 3).
We will not depart from these principles in our analysis of this statutory privilege. Without an express waiver provision, we must determine who holds the privilege as “only the person entitled to the benefit of a privilege may waive the privilege.” Powell, 312 S.W.3d at 512; see also Smith Cnty. Educ. Ass‘n v. Anderson, 676 S.W.2d 328, 333 (Tenn. 1984); Black Diamond, 98 S.W.2d at 312; Boyd, 88 S.W.3d at 213. We do not find the holder of the QIC privilege to be so amorphous as precedent suggests. See Pinkard, 545 S.W.3d at 455. Unlike its predecessor, the PSQIA identifies the healthcare organization as the entity who forms or retains the QIC:
“Quality improvement committee” or “QIC” means 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 performing the types of functions listed in subdivisions (4)(A)–(P) [defining healthcare organization], the purpose of which, or one (1) of the purposes of which is to evaluate the safety, quality, processes, costs, appropriateness or necessity of healthcare services . . . .
The QIC is created by and for a healthcare organization. It logically follows that a healthcare organization is entitled to any benefit afforded to a QIC, including the statutory privilege. Cf. Powell, 312 S.W.3d at 512 (“[O]nly the person entitled to the benefit of a privilege may waive the privilege.“). Just as a client retains an attorney, a healthcare organization forms or retains a QIC. As the attorney-client privilege “belongs to the client,” Smith Cnty. Educ. Ass‘n, 676 S.W.2d at 333, the QIC privilege belongs to the healthcare organization. The healthcare organization, as defined by the statute, therefore holds the privilege.
We decline to follow Pinkard‘s analysis of the PSQIA. The court in Pinkard based its decision on “the reasoning in Powell and the substantial similarities in the two statutory schemes,” and failed to acknowledge the fundamental differences in the statutory language. Pinkard, 545 S.W.3d at 457 (discussing the six similarities between the statutes). Not only do we find the differences in statutory language enlightening, we do not agree with the notion that a process, as opposed to a person or entity, may hold a privilege. Thus, we overrule Pinkard to the extent it held that the QIC process holds the privilege and therefore the privilege is unwaivable.6
Notably, other provisions of section 68-11-272 support this conclusion. The first provision of section 68-11-272 states that “Tennessee further recognizes that certain protections must be available to these entities [hospitals, healthcare facilities and
Our opinion in Federal Insurance Co. v. Arthur Anderson & Co. is particularly instructive. 816 S.W.2d 328, 330–31 (Tenn. 1991). Like the QIC privilege, the accountant-client privilege is of “statutory origin” and silent on waiver. Id. at 329–30. Likening the accountant-client privilege to the attorney-client privilege, we held that the client was the holder of the privilege and may waive the privilege. Id. at 330–31 (“We are of the opinion that the relationship between an accountant and his employer is analogous to the relationship between an attorney and his client.“). We see no reason to depart from this analysis.
In many respects, a healthcare organization‘s QIC privilege is similar to the corporate attorney-client privilege. The privilege belongs to the corporate client. Boyd, 88 S.W.3d at 213. But because a corporation cannot speak for itself, “the power to waive the corporate attorney-client privilege rests with the corporation‘s management and is normally exercised by its officers and directors,” who must exercise the privilege consistent with their fiduciary duties and in the best interests of the corporation. Commodity Futures Trading Comm‘n v. Weintraub, 471 U.S. 343, 348–49 (1985). Just as a healthcare organization‘s management exercises the organization‘s attorney-client privilege and holds the power to waive it, so too does a healthcare organization‘s management exercise the organization‘s QIC privilege and holds the power to waive it. See id.
In this case, Memorial is a healthcare organization as defined under
We next decide “whether permitting the waiver of this privilege is contrary to public policy or would violate the rights of third parties.” Powell, 312 S.W.3d at 512–13; Black Diamond, 98 S.W.2d at 312. The proposition of an unwaivable privilege gives us great pause because it is contrary to established legal principles. Tennessee law “reflect[s] a broad policy
Upon closer examination, the concept of an unwaivable privilege becomes “curiouser and curiouser[.]” Lewis Carroll, Alice‘s Adventures in Wonderland 15 (London, MacMillan & Co. 1898). Certainly, the lack of an express waiver provision does not imply that a statutory privilege cannot be waived. See Powell, 312 S.W.3d at 512 (stating that in the absence of an express waiver provision, a court should identify the privilege holder to determine whether the privilege can be waived). Many privileges established or recognized by statute do not contain express waiver provisions but still may be waived. The attorney-client privilege is codified but may be waived by the client. See
Both the Powell and Pinkard courts recognized the potential for abuse if a privilege cannot be waived. See Powell, 312 S.W.3d at 513 & n.21 (stating that “declining to engraft a waiver provision onto [the statute] could enable some parties to engage in strategic behavior“); Pinkard, 545 S.W.3d at 457 (“The fact that the privilege cannot be waived is problematic . . . .“). An unwaivable privilege invites parties to use privileged information offensively as a sword while in the same breath claim privilege when that information is challenged. See Arnold v. City of Chattanooga, 19 S.W.3d 779, 788 (Tenn. Ct. App. 1999). “[T]hey may not selectively disclose a protected document to prove a point and then invoke the work product doctrine to prevent their opponent from challenging their assertion.” Boyd, 88 S.W.3d at 226 (citing Frontier Refining, Inc. v. Gorman-Rupp Co., 136 F.3d 695, 704 (10th Cir. 1998); Granite Partners v. Bear, Stearns & Co., 184 F.R.D. 49, 54 (S.D.N.Y. 1999)).
It has been asserted that the PSQIA privilege is unwaivable “because weakening this privilege could undermine the confidentiality that the privilege is intended to protect.” Pinkard, 545 S.W.3d at 457–58 (internal quotation marks omitted) (quoting Powell, 312 S.W.3d at 512). But the same argument can be made in the context of any privilege. This Court has been unable to find any other nonwaivable privilege under Tennessee law despite the policy goals they serve. See, e.g., Buford, 216 S.W.3d at 326; Arthur Anderson, 816 S.W.2d at 330; Thompson, 768 S.W.2d at 249; Culbertson, 455 S.W.3d at 150; Boyd, 88 S.W.3d at 213.
Appellants further argue that finding waiver will cause a chilling effect on QIC and other peer review proceedings that will eventually erode their overarching goals. We recognize the importance of open and honest input during QIC proceedings. The broad language and scope of the statute itself reflects its goal to improve the quality of patient care. See
Similarly, Appellants argue that finding waiver will undermine the goals of the PSQIA because it allows one party to waive the privilege for anyone who contributed privileged information to QIC proceedings. We recognize that third parties, not employed by the healthcare organization that formed the QIC, may participate in the QIC. See
In this case, the chief operating officer of a healthcare organization voluntarily disclosed privileged information to a patient‘s family. Once Memorial disclosed privileged and confidential information to Mrs. Castillo, that information is no longer privileged or confidential. The genie is out of the bottle. In any other context, the explicit and intentional disclosure of confidential information by the privilege holder would constitute waiver. See, e.g., Buford, 216 S.W.3d at 326 (“If a client divulges the communications he seeks to protect, then he has waived the attorney-client privilege with respect to the reported communications . . . .“); Arthur Anderson, 816 S.W.2d at 328–29 (finding a client waived the accountant-client privilege by executing a sworn and notarized waiver); Thompson, 768 S.W.2d at 239 (finding defendant waived the psychologist-patient privilege after eliciting testimony from psychologist); Culbertson, 455 S.W.3d at 150 (stating if a client‘s “disclosure . . . of privileged information . . . is voluntary, it must necessarily constitute a waiver of the privilege with respect to the information actually disclosed[]” in the context of the psychologist-client privilege); Boyd, 88 S.W.3d at 213 (“[A] client may waive the privilege . . . by voluntarily divulging the communication to third parties.“). We see no compelling reason to treat this privilege any differently.
Finally, we must determine the scope of the waiver. “The scope of the waiver by disclosure is defined by the ‘fairness doctrine,’ which aims to prevent the prejudice and distortion that may be caused by one party‘s selective disclosure of otherwise protected information.” Arnold, 19 S.W.3d at 787 (quoting Granite Partners, 184 F.R.D. at 54). There is no indication that Memorial intentionally shared these statements with Mrs. Castillo as a particular strategy or offensive tactic in litigation. Rather, Memorial provided Mrs. Castillo an honest assessment of the quality of care provided to her husband during their meeting.
Considering the public policy interests and the context of the disclosure, we find waiver limited to what was discussed at the meeting. Therefore, Mr. Houston, Dr. Kodsi, and Ms. Stanley may be asked about that. However, this waiver does not extend to records or other sources on which the statements were based. For example, the reports of engaged experts, transcripts of witness interviews, and the identity of “[a]ny person who supplies information, testifies or makes statements as part of a QIC” remain privileged.
CONCLUSION
For these reasons, we hold any statements made to Mrs. Castillo relating to the QIC process and/or conclusions were voluntarily disclosed, and the QIC privilege is therefore waived. This waiver is strictly limited to statements made during the meeting. We affirm the judgment of the Court of Appeals on separate grounds, and we remand this case to the trial court for further proceedings consistent with this opinion. The costs of this appeal are taxed to Appellants, for which execution may issue if necessary.
DWIGHT E. TARWATER, JUSTICE