JOHN F. PINKARD, M.D.
HCA HEALTH SERVICES OF TENNESSEE, INC. D/B/A SUMMIT MEDICAL CENTER
Session April 11, 2017
from the Circuit Court for Davidson County No. 08C1708 Joseph
P. Binkley, Jr., Judge
granted this interlocutory appeal to determine whether Tenn.
Code Ann. § 68-11-272(c)(1) of the Healthcare Quality
Improvement Act ("HCQIA"), as applied to the facts
of this case, violates the separation of powers provisions in
the Tennessee Constitution. Plaintiff, a physician whose
medical staff privileges were terminated by Summit Medical
Center, sued the hospital, alleging, inter alia,
that it acted in bad faith and with malice during the peer
review process. Following a lengthy discovery process, the
hospital filed a motion for summary judgment asserting,
inter alia, that Plaintiff's anticipated
evidence was confidential, privileged, and inadmissible under
the HCQIA because it was derived from the activity of a
Quality Improvement Committee ("QIC"). At the same
time, the hospital filed a motion in limine to exclude all
records of quality improvement activity pursuant to the
evidentiary privilege under Tenn. Code Ann. §
68-11-272(c)(1). After ascertaining that Plaintiff intended
to rely on QIC evidence, the trial court ruled that the peer
review privilege could not be waived, and that Tenn. Code
Ann. § 68-11-272(c)(1) violated the separation of powers
provisions because it deprived the court of its inherent
authority to make evidentiary decisions affecting "the
heart of this case." This Tenn. R. App. P. Rule 9
interlocutory appeal followed. We agree with the trial
court's ruling that the privilege cannot be waived.
However, we disagree with the trial court's ruling that
Tenn. Code Ann. § 68-11-272(c)(1), as applied to the
facts of this case, violates the separation of powers
provisions in the Tennessee Constitution. This is because the
General Assembly created the evidentiary privilege to
effectuate one of its powers, the enactment of legislation
that promotes the safety and welfare of our citizens. To that
end, the primary concern of the challenged legislation is not
to create court rules, but to promote candor within a
hospital's quality improvement process to ensure
effective evaluation measures. Furthermore, Tenn. Code Ann.
§ 68-11-272(c)(2) provides an "original
source" exception to the privilege whereby documents not
produced specifically for use by a QIC, and are otherwise
available from original sources, are both discoverable and
admissible into evidence even if the information was
presented during a QIC proceeding. Thus, the privilege is
reasonable and workable within the framework of evidentiary
rules already recognized by the judiciary. For these reasons,
we reverse and remand for further proceedings.
R. App. P. 9 Interlocutory Appeal; Judgment of the Circuit
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.
Bennett Harrison, Jr., Sean C. Wlodarczyk, and John D. Kitch,
Nashville, Tennessee, for the appellee, John F. Pinkard, M.D.
G. Clement, Jr., P.J., M.S., delivered the opinion of the
Court, in which Andy D. Bennett and John W. McClarty, JJ.,
G. CLEMENT, JR., P.J., M.S.
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.
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.
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.
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.
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 rare
structural abnormality in which the aorta adheres to the vena
cava. Summit suspended Dr. Pinkard's privileges in
accordance with its bylaws, and the MEC conducted an
investigation. After reviewing the patient's medical
record and radiological reports, the MEC upheld the
suspension and voted to revoke Dr. Pinkard's privileges.
It determined that a pre-operative angiogram did not reveal
the presence of an aorto-caval fistula as Dr. Pinkard
reported in the patient's medical record. Thus, the MEC
found that Dr. Pinkard falsified that record. Shortly
thereafter, Dr. Pinkard expressed his desire to appeal the
committee's decision, and Summit scheduled a fair
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.
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.
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
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.
exhausting his appeals within Summit's peer review
process, Dr. Pinkard commenced this action alleging,
inter alia, that Summit conducted its peer review in
bad faith and with malice. After filing its answer, Summit
filed its first motion for summary judgment relying, in part,
on the Tennessee Peer Review Law ("TPRL"), Tenn.
Code Ann. § 63-6-219, which was in effect when Dr.
Pinkard commenced this action. Summit argued that the TPRL
afforded it immunity from a claim for damages if it acted in
good faith and without malice throughout the peer review
process. It also noted that the TPRL created a presumption
that it acted in good faith and without malice, and that Dr.
Pinkard had no evidence to overcome the presumption. Summit
supported its motion by attaching a redacted version of the
fair hearing transcript along with numerous other exhibits
from the fair hearing. Dr. Pinkard responded in opposition
with several affidavits and deposition testimony.
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.
April 12, 2011, the legislature repealed and replaced the
TPRL with the enactment of Tenn. Code Ann. § 68-11-272,
the Healthcare Quality Improvement Act ("HCQIA").
Under Tenn. Code Ann. § 68-11-272(c)(1), which is
similar to the TPRL, records of a Quality Improvement
Committee ("QIC") and statements by hospital
officers, directors, healthcare providers, or employees
relating to the activities of a QIC are confidential,
privileged, and inadmissible in evidence. Further, under
Tenn. Code Ann. § 68-11-272(c)(2), documents not
produced specifically for use by a QIC, and are otherwise
available from original sources, are not immune from
discovery or admission into evidence even if the information
was presented during a QIC proceeding.
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. Further, Summit contended that Dr. Pinkard
could not produce admissible evidence to overcome the
presumption because evidence derived from the fair hearing
and the MEC was privileged and inadmissible under the HCQIA.
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.
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.
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.
the trial court's revised ruling precluded the
admissibility of evidence in accordance with Tenn. Code Ann.
§ 68-11-272(c)(1), the court concluded that "the
statutory prohibition of the admissibility of this evidence
in this case would effectively deny this plaintiff his access
to the courts of this state as this statute . . . is being
applied." The court went on to rule:
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. ...