Preserve Immunity with Proper Peer Review Procedures

Preserve Immunity with Proper Peer Review Procedures
By Judy Regan, MD, JD, MBA; Edward Hadley, JD; and Ron Pursell, JD


INTRODUCTION
Review of physician performance by peers is a time-honored way of improving patient care and achieving accountability. As members of a learned profession, physicians have been entrusted by the public with the responsibility of self-regulation. The public wants to be assured that the profession is doing all it can for quality improvement, and physicians want the process of peer review to be objective, effective, and fair to member physicians and patients. In most states peer review statutes have been established to assist in the review of a physician’s performance. These statutes provide some type of immunity to those who participate in peer review where concerns may be raised about a colleague's ability to competently practice medicine. Tennessee is no exception. This paper reviews Tennessee’s statute from the perspective of participants in the peer review process as reviewers of the quality of care provided by another physician.

TENNESSEE LAW
Tennessee’s Peer Review Statute for physicians is codified at §63-6-219 of the Tennessee Code:

(b)(1) in conjunction with the applicable policies of the Health Care quality Improvement Act of 1986 (42 U.S.C. Sections 11101 to 11152), it is the stated policy of Tennessee to encourage committees made up of Tennessee’s licensed physicians to candidly, conscientiously, and objectively evaluate and review their peers’ professional conduct, competence, and ability to practice medicine. Tennessee further recognizes that confidentially is essential both to effective functioning of these peer review committees and to continued improvement in the care and treatment of patients. TCA §63-6-219(b)(1).

The statute has undergone a number of amendments since its inception in 1967, and it is presently patterned after the Federal Health Care Quality Improvement Act of 1986. In Eluhu v. HCA Health Services of Tennessee Inc., the Court stated that the requirements of the Tennessee Peer Review Law were essentially identical to the requirements of the Health Care Quality Improvement Act. The Tennessee statute now provides peer review committees with more protection over both the documents they generate and the potential liability to which participants may be exposed for engaging in peer review. Currently the Peer Review Statute states that any information provided to a medical review committee, which includes impaired physician peer review committees, is declared privileged.
In addition, the Peer Review Statute defines “medical review committee” or “peer review committee”:

(c) As used in this section, “medical review committee” or “peer review committee” means any committee of a state or local professional association or society, including impaired physician peer review committees, programs, malpractice support groups and their staff, personnel, or a committee of any licensed health care institution, or the medical staff thereof, or any committee of a medical care foundation or health maintenance organization, preferred provider organization, individual practice association or similar entity, the function of which or one (1) of the functions of which, is to evaluate and improve the quality of healthcare rendered by providers of health care service to provide intervention, support, or rehabilitative referrals or services, or to determine that health care services rendered were professionally indicated, or were preformed in compliance with the applicable standard of care, or that the cost of health care rendered was considered reasonable by the providers of professional health care services in the area …. TCA §63-6-219(c).

Since codification, the Courts in Tennessee have reviewed and interpreted the statute. The Tennessee Court of Appeals recently discussed the intent of the legislature in enacting Tennessee’s Peer Review statute in Smith v. Leona M. Pratt. The court reviewed comments of the sponsor of the peer review legislation:

Representative Stanley Rogers, the sponsor of the 1975 legislation that enacted this section, stated that doctors “are reluctant to say another doctor is not practicing good medicine for fear of being sued by that particular physician. This bill will encourage doctors to police themselves to expose the bad practitioners who are causing the malpractice problem. (Citing Remarks of Rep. Rogers, tape No. H-1139 (May 2, 1975)(emphasis added)).

Although Tennessee’s Peer Review Statute provides considerable protection to participants, there are exceptions to these protections. The discovery privilege created by Tennessee’s peer review statute is limited in scope and therefore there are exceptions to the privilege. For instance, the statute does not prevent discovery of information from original sources other than the documents originating from the peer review committee itself. The statute provides:

Nothing contained in this subsection (e) applies to records made in the regular course of business by a hospital or other provider of health care information, documents or records otherwise available from original sources are not to be construed as immune from discovery or use in any civil proceedings merely because there were presented during proceedings of such committee. TCA § 63-6-219(e).

Recently, the Tennessee Supreme Court addressed this language in the statute. In Stratienko v. Chattanooga-Hamilton Cty Hosp. Auth.,5 the Tennessee Supreme Court held that “information, documents, or records otherwise available from original sources” are subject to discovery pursuant to TCA section 63-6-219(e), but only to the extent that they are not requested from the peer review committee and are not otherwise privileged.” Thus, documents available from original sources other than the peer review committee are discoverable even though they may have been presented to a peer review committee in the course of its proceedings.

The Tennessee Court of Appeals has discussed and interpreted the “original source” exception to Tennessee’s peer review statute in several cases. In Roy v. City of Harriman, the plaintiff, Dr. Roy, obtained a document that had been used by a peer review committee in making a determination adverse to him. The document was a credentialing form filled out by another doctor, Dr. Bennett, and contained information regarding his assessment of Dr. Roy. The document was apparently “leaked” to Dr. Roy by a member of the peer review committee. The defendant objected to the admissibility of the form at trial based on the peer review privilege statute which prevents the discovery or “use” of documents from a peer review committee. The defendant moved for summary judgment asserting that Dr. Roy could not use the document at trial, and thus, could not prove his case.

The Court considered whether the document fell within the “original source” exception to the peer review privilege. The Court found there was no evidence in the record to suggest the document was “available from” the original source, i.e. the physician who filled out the credentialing form. The physician who filled out the form had testified that he did not keep copies of such forms. Dr. Roy did not claim otherwise and presented no evidence regarding the document’s availability or actual origin. Instead, Dr. Roy’s briefs stated only that “[h]owever it happened, [Dr. Roy] obtained possession of the form[.]” Based on this record, the Court stated that application of the “original source” exception to these facts would be “unbridled speculation.” This Court further explained there was “no evidence that the document was, or could have been, obtained directly from Dr. Bennett, nor from any other arguable ‘original source’ aside from the peer review committee itself.”

The newly released opinion of the Tennessee Court of Appeals in Powell v. Community Health Systems, Inc., provides further discussion. In Powell, the Plaintiff commenced an action against her employer hospital, a physician and others, alleging harassment, discrimination, assault and battery, constructive discharge, outrageous conduct, and negligent infliction of emotional distress. The Plaintiff sought information concerning a special investigation of infections in post-operative patients. The investigation was conducted by the infection control nurse and allegedly reported to a peer review committee. She claimed the investigation was performed by her as part of a quality control committee and that she was working under the direction of the chief quality officer. The hospital claimed the purpose of the investigation was to evaluate and improve the quality of healthcare rendered by providers at the hospital. The infection control nurse further asserted the investigation was more specific and tailored than her normal surveillance of infections.

The Plaintiff sought discovery of the results of the investigation from the infection control nurse as an “original source” under Tennessee’s Peer Review Privilege law. The trial court allowed the discovery, finding that the investigation documentation was not generated during a peer review process but was part of the hospital’s regular course of business, and the Defendants successfully sought interlocutory appeal.

The Court of Appeals at Knoxville affirmed the trial court upon interlocutory appeal. The Court of Appeals agreed with the trial court and found the infection control nurse was an original source and the documents related to her special investigation were created in the ordinary course of business, notwithstanding the fact that the particular investigation at issue was performed at the direction of a peer review committee. The Court of Appeals held:

Plaintiff was seeking to depose Sexton regarding information that she gathered during an investigation she undertook, apparently at the direction of the review committee, regarding an increased rate of post op infections. Sexton admitted, however, that such investigations were also part of her normal job duties, although she had to have direction from the committee to perform an “in-depth” study. Apply the above statutory interpretation to the facts of this case, it is clear that any documents in the possession of the committee would not be discoverable, but that any documents or information retained by Ms. Sexton would be discoverable, as these would be records she made in conjunction with the regular course of business of the hospital. Likewise, any records that are available from an “original source” (such as Ms. Sexton, if the record was made by her) are likewise discoverable. The fact that such records or the information was provided to the peer review committee would not prevents its discovery. The statute expressly provides that records regularly made by the hospital and available from alternative sources are discoverable (emphasis added).

The Tennessee Supreme Court has also recognized another exception to the peer review privilege. This exception “permits limited discovery of documents in the possession of a peer review committee to investigate ‘committee members’ good faith, malice, and reasonable knowledge or belief.”10 This limited discovery exception directly relates to the immunity provided to participants in the peer review process.

CONCLUSION
Preserving the immunity afforded by the statute is most important for participants in the peer review process. Tennessee’s Peer Review Statute creates a presumption in favor of peer reviewers establishing that the reviewers acted in good faith. A party challenging that presumption must produce evidence to overcome that presumption.

Practitioners participating in the peer review process as reviewers of the quality of care provided by another physician should fulfill their duty to regulate their profession without the fear of reprisal. To do so, participants should use their best efforts to document all actions undertaken as a participant. The purpose of documentation is to demonstrate good faith participation, the absence of malice, and reasonable knowledge or belief in the statements made or conclusions reached. Good faith is a general legal principle found in many different substantive legal areas. Generally, good faith is demonstrated by “faithfulness to an agreed common purpose and consistency with the justified expectations of the other party.” Malice is simply ill-will; however, malice can be proven by a lack of probable cause. Thus, any peer review action taken should be supported by probable cause, which is defined as “reasonable cause in good faith” that the act had occurred. To avoid the appearance of malice and preserve the presumption of good faith, a reviewer should decline to participate in a review if any potential conflicts of interest exist with the physician being reviewed. For example, if the reviewer and the physician being reviewed are market competitors, have had a personal or business dispute in the past, or have been co-defendants in a medical malpractice action. Essentially, a reviewer participant should be able to demonstrate impartiality.

In the course of participating in the peer review proceeding, reviewers should be able to precisely document information learned by interviewing witnesses and compare and contrast all such data with statements from other witnesses and data such as medical records, phone records, and other available documentation. In the process, reviewers should specifically identify corroborating and conflicting information. Reviewers should avoid making any preliminary conclusions or impressions until an investigation is completed and the reviewed physician has had an opportunity to respond in a fair hearing. Importantly, reviewers should preserve the privileges afforded by the statute by refraining from discussing any peer review matters with persons outside the peer review committee. Discussions with other peer review committee members should be conducted according to the peer review procedures outlined in the facility by-laws.

By observing peer review procedures and striving for objectivity, reviewer participants should easily preserve the immunity from liability afforded by the statute.

1. Tennessee Medical Association:  Law Guide. Available at http://www.tnmed.org.
2. Eluhu v. HCA Health Services of Tennessee Inc., 2009WL 3460370, No. M2008-01152-COA-R3-CV, (Tenn.Ct. App. May 5, 2009). Unpublished document.
3. Smith v. Leona M. Pratt, 2009 WL 1086953, No. M2008-01540-COA-R9-CV (Tenn. Ct. App. April 22, 2009). Unpublished document.
4. Subsection (e) of Tenn. Code Ann. § 63-6-219 addresses the privilege.
5. Stratienko v. Chattanooga-Hamilton Cty Hosp. Auth., 2007 WL 1411831 (Tenn. May 14, 2007). Unpublished document.
6. In Roy v. City of Harriman, No. E2007-00785–COA-R-3 (Tenn. Ct. App. June 30, 2008). Unpublished document.
7. Notably, Justice Susano dissented from the opinion authored by Justice Franks and joined by Justice Lee. He referenced the Court’s opinion in Roy v. Harriman and opined that the infection control nurse was not an original source and that the special investigation was not prepared in the ordinary course of business because it was prepared at the request of a peer review committee.
8. Powell v. Community Health Systems, Inc., 2008 WL1751675 No. E2008-00535-COA-R9-CV *1-6 (Tenn. Ct. App. January 2, 2009). Unpublished document.
9. Notably, Justice Susano dissented from the opinion authored by Justice Franks and joined by Justice Lee. He referenced the Court’s opinion in Roy v. Harriman and opined that the infection control nurse was not an original source and that the special investigation was not prepared in the ordinary course of business because it was prepared at the request of a peer review committee.
10. Eyring v. Fort Sanders Parkwest Med. Ctr., Inc., 991 S.W.2d 230, 239 (Tenn. 1999). Tenn. Code Ann. §63-6-219(d)(2) provides an exception to immunity for false information provided to a committee with knowledge of the falsity. It should also be noted that Justice Swiney’s concurring opinion in Roy acknowledges that the decision renders this section meaningless and appears to be in conflict with the Supreme Court’s decision in Eyring.
11. Hart v. Mayor, Etc. of City of Union City, 64 S.W. 6 (Tenn. 1901).
12. Old Republic Surety Company v. Eshaghpour, 2001 WL 1523364, No. MI 199901918-COA-R3-CV *3 (Tenn. Ct. App. Nov. 30, 2001). Unpublished document.
13. See Poster v. Andrews, 194 S.W. 2d 337, 339 (Tenn. 1946).


Dr. Regan is an assistant clinical professor with the University of Tennessee and Meharry Medical College and an associate with North, Pursell & Ramos, PLC, in Nashville; Mr. Hadley is a member of NPR, with a practice that includes defending physicians in malpractice and licensure actions; Mr. Pursell is a member of NPR with a practice that includes assisting physicians with asset protection/estate planning, corporate formation and contracts.