In May 2010, the Tennessee Supreme Court issued its opinion in the case of Lee Medical v. Paula Beecher, 312 S.W. 3d 515 (Tenn. 2010). There were several issues addressed by the Tennessee Supreme Court in this case. The major issue was whether Tennessee’s Peer Review Privilege at the time applied to review of care provided by physicians only. 

The Court found that the privilege in Tenn. Code Ann. (TCA) Section 63-6-219(e) applied only to peer review proceedings before a peer review committee as defined in Tenn. Code Ann. Section 63-6-219 (c) that involve a physician's conduct, competence or ability to practice medicine.

This decision narrowed the scope of how the peer review statute in Tennessee codified at TCA 63-6-219 had been applied. As a response to Lee Medical, the Tennessee legislature quickly enacted in April 2011 new peer review legislation codified in TCA 63-1-150 and TCA 68-11-272. The statutes, in general, grant immunity to those involved in the process and provide varying degrees of confidentiality for records related to peer review proceedings. Such confidentially typically includes declaring that documents related to such proceedings are privileged from discovery or use in judicial or administrative proceedings.

The new peer review legislation amended Tennessee Code Annotated, Title 68, Chapter 11 and Title 63, Chapters 1 and 6 relative to patient safety and quality. This legislation provides certain protections from liability and discovery to healthcare organizations under Title 68 and healthcare providers under Title 63 for activities involving quality improvement committees (QICs) and revises present law by eliminating reference to medical review committees by specifying that healthcare providers would instead be reviewed by QICs.

The legislation specifies that any records of a QIC and testimony by hospital board trustees or directors, medical staff, administrative staff, employees or other committee members or attendees relating to activities of the QIC would be confidential and privileged and would be protected from discovery, subpoena or admission into evidence in any judicial or administrative proceeding.

A "Quality improvement committee" or "QIC" means a committee formed by a healthcare organization as that term is defined in the new legislation for the purpose of evaluating the quality, processes, costs, or necessity of healthcare services by performing certain functions. Those functions include but are not limited to:

(1) Evaluation and improvement of the quality of healthcare services rendered;
(2) Evaluation of the qualifications, competence and performance of healthcare providers or action upon disciplinary matters of any healthcare provider;
(3) Establishment and enforcement of guidelines designed to keep the cost of healthcare within reasonable bounds;
(4) Evaluation of whether facilities are being properly utilized;
(5) Supervision, discipline, admission, and the determination of privileges of healthcare providers;
(6) Evaluation, review or improvement of methods, procedures or treatments being utilized; or
(7) Activities to determine the healthcare organization's compliance with state or federal regulations.

Under this new legislation, any person who supplies information or testifies as part of a QIC may not be required to provide information as to the person's testimony before such a committee or opinions formed by the person as a result of committee participation. However, any information otherwise available from original sources, which are not produced for use by a QIC or which are not produced by persons acting on behalf of a QIC, would not be immune from discovery or use in any judicial or administrative proceeding merely because the information was presented during proceedings of the QIC. No healthcare organization officer, director trustee, healthcare provider staff, administrative staff, employee or other committee attendee would be held liable in any action for damages or other relief arising from the provision of information to a QIC or in any judicial or administrative proceeding which was provided in good faith without malice.

Additionally, this legislation specifies that a professional assistance program may also advocate for healthcare professionals before other QICs, in addition to healthcare entities, private and governmental insurance carriers, national or local certification and accreditation bodies, and the state health related boards of this or any other state. The disclosure of confidential, privileged QIC information to such entities during advocacy or as a report to the health related boards, or to the affected healthcare provider under review, does not constitute either a waiver of confidentiality or privilege.

Of note is the fact that the above provisions on QICs would not apply to pharmacy peer review, osteopathic physicians peer review, chiropractic peer review, psychologist peer review, dentist peer review, veterinarian peer review, or to the provisions of this bill regarding QICs and hospitals and healthcare facilities and providers.

The legislative reaction to Lee Medical was swift and provided statutory enactments that were very broad. However, as is the case with any legislation that is penned in broad strokes, there are generally negative implications associated with its implementation or construction. The legislation will not eliminate disputes over discovery. Healthcare facilities will still have to document that the QIC initiated any inquiry that they seek to use as the basis for the assertion of the privilege and apparently limited discovery may still be available on the issues of good faith and malice among other issues.

 Ron Pursell is a founder and partner with North, Pursell, Ramos & Jameson, PLC. Dr. Judy Regan is an associate with the Nashville-based law firm. www.nprjlaw.com.

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