Roy v. City of Harriman, E2007-00785-COA-R3-CV (Tenn. Ct. App. June 30, 2008)
In a recent Tennessee Court of Appeals case, the court held that the Tennessee Peer Review Law creates a privilege that bars not only the discovery of peer review-related information, but also the use of such information.
This cause of action arises out of statements made by Dr. William E. Bennett to PHP Companies, Inc. (“PHP”), a health insurance company, regarding Dr. Francis Roy. Dr. Roy alleges that, in connection with PHP’s review of Dr. Roy’s application to become an approved PHP provider, Dr. Bennett made written statements that reflected poorly on Dr. Roy’s work history and qualifications. Dr. Roy claims that these statements were false and defamatory. In response to Dr. Roy’s complaint, Dr. Bennett filed a motion for summary judgment, contending, among other things, that the document containing the allegedly defamatory statements is privileged and inadmissible under the Tennessee Peer Review Law, Tenn. Code Ann. § 63-6-219 (2004). The court granted Dr. Bennett’s motion. The Tennessee Court of Appeals affirmed.
In considering whether the Peer Review Law renders "information . . . furnished to" a peer review committee inadmissible, or merely not subject to discovery, the court held: "[T]he Peer Review Law creates a privilege that bars the discovery or use of '[a]ll information, interviews, incident or other reports, statements, memoranda or other data furnished to any committee as defined in [the statute], and any findings, conclusions or recommendations resulting from the proceedings of such committee,' unless the information in question falls under an exception to the privilege." (emphasis in original) (citing T.C.A. § 63-6-219(e)).
The court also held that the "regular course of business" exception to the peer review privilege "refer[s] to documents prepared in the 'regular course of business' independent of peer review processes." (emphasis in original).
In a separate concurring opinion, one judge argued that the majority's interpretation of the Peer Review Law as prohibiting the use of peer review-related information, while correct, nonetheless creates "an irreconcilable conflict" in the statute. Section (d)(2) of the statute does not extend immunity to individuals submitting false information to a peer review committee if such individuals had actual knowledge of its falsity. The judge argued that, by prohbiting the discovery and use of peer-review related information, there is no way for a plaintiff to prove that an individual knowingly provided false information to a peer review committee. "I am at a loss as to how any potential plaintiff could proceed against an individual who is not immune from liability because he knowingly provided false information to a Peer Review Committee without being able to discover what was said to the Peer Reivew Committee and then being able to have what was said admitted into evidence." The judge concluded: "The end result is that Tenn. Code Ann. § 63-6-219(d)(2) is effectively deleted from the statute . . . ."
Opinion
Concurring Opinion
