                                                                                       12/11/2018
               IN THE COURT OF APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                July 17, 2018 Session

MARK REYNOLDS, AS ADMINISTRATOR OF THE ESTATE OF CAROL
   ANN REYNOLDS v. GRAY MEDICAL INVESTORS, LLC., ET AL.

        Interlocutory Appeal from the Circuit Court for Washington County
                        No. 34916    Jean A. Stanley, Judge


                            No. E2017-02403-COA-R9-CV


We granted the Tenn. R. App. P. 9 application for interlocutory appeal in this case to
consider whether a healthcare provider can use Tenn. Code Ann. § 68-11-272, (“the peer
review statute”), to claim privilege and exclude evidence that an employee was
threatened with dismissal or retaliation if the employee refused to change their story or
alter documents in order to cover up possible negligent conduct. We find and hold that
the peer review privilege contained within Tenn. Code Ann. § 68-11-272 never was
intended to allow a healthcare provider to attempt without fear of adverse consequences
to force an employee to commit perjury. We, therefore, reverse the July 31, 2017 order
of the Circuit Court for Washington County (“the Trial Court”) excluding the testimony
of defendants’ employee pursuant to the peer review privilege contained in Tenn. Code
Ann. § 68-11-272 and remand this case for further proceedings consistent with this
Opinion.

 Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Circuit Court Reversed
                                  Case Remanded

D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which CHARLES D.
SUSANO, JR. and THOMAS R. FRIERSON, II, JJ., joined.

Larry V. Roberts and Michael E. Large, Johnson City, Tennessee, for the appellant, Mark
Reynolds, as the Administrator of the Estate of Carol Ann Reynolds.

Alan S. Bean, Nashville, Tennessee, for the appellees, Gray Medical Investors, LLC; and
Life Care Centers of America, Inc. d/b/a Life Care Center of Gray.
                                        OPINION

                                       Background

       Mark Reynolds (“Plaintiff”) sued Gray Medical Investors, LLC and Life Care
Centers of America, Inc. d/b/a Life Care Center of Gray (“Defendants”) with regard to
injuries allegedly sustained in a fall, or several falls, that resulted in the death of Carol
Ann Reynolds (“Deceased”) while Deceased was a nursing home resident under
Defendants’ care. Heather Miller, a certified nursing assistant employed by Defendants,
provided care for Deceased while Deceased was a resident under Defendants’ care.
Miller testified that one of her supervisors, Jennifer Solomon, wanted Miller to change
the time on a report to show that a second fall suffered by Deceased happened closer in
time to a first fall such that Defendants did not have time to take corrective action before
the second fall.

      Defendants filed a motion in limine to exclude Miller’s testimony about her
conversation with Solomon claiming that the statements made by Miller were privileged
pursuant to Tenn. Code Ann. § 68-11-272, the peer review statute, because the
conversation between Solomon and Miller occurred during a quality improvement
committee (“QIC”) meeting.

      After a hearing on the motion in limine, the Trial Court entered its order on July
31, 2017 excluding the portions of Miller’s testimony about her conversation with
Solomon after finding and holding, inter alia:

       A certified nursing assistant, Heather Miller, has testified in deposition that
       two of defendant’s corporate employees intimidated and coerced her to
       change a written statement during a QIC meeting. Apparently, Ms. Miller’s
       original handwritten statement indicated that the time of Carol Reynolds’
       fall was between 4:30 and 4:45. In her deposition, Ms. Miller testified that
       defendant’s employee, Ms. Jennifer Solomon, insisted that the fall occurred
       earlier and that Ms. Miller should change her statement. They finally
       settled on Ms. Miller saying that she just did not remember the time. Ms.
       Miller says that she “wanted out of there” so she signed the second
       statement.

Plaintiff filed a motion for a Tenn. R. App. P. 9 interlocutory appeal in the Trial Court,
which the Trial Court granted. Plaintiff then filed her application for a Rule 9

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interlocutory appeal with this Court. By order entered February 23, 2018, this Court
granted the application for interlocutory appeal.

                                       Discussion

We granted this Rule 9 appeal to consider the issue, as phrased by the Trial Court:

      Whether a nursing home, hospital or any other healthcare provider in the
      State of Tennessee, can use T.C.A. § 68-11-272 (i.e.: Peer Review Statute)
      to claim privilege, and exclude evidence that the healthcare provider
      threatened an employee with dismissal or retaliation, if the employee does
      not change their story or alter documents, so the healthcare provider can
      perpetrate a fraud, on nursing home residents, hospital patients and their
      families, to cover up negligent conduct of the healthcare provider, or its
      employees.

      This issue requires us to construe Tenn. Code Ann. § 68-11-272. As our Supreme
Court has instructed:

      Issues of statutory construction present questions of law that we review de
      novo with no presumption of correctness. Martin v. Powers, 505 S.W.3d
      512, 518 (Tenn. 2016). The primary goal of statutory interpretation is to
      carry out legislative intent without expanding or restricting the intended
      scope of the statute. State v. Smith, 484 S.W.3d 393, 403 (Tenn. 2016)
      (citations omitted). In determining legislative intent, we 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.” Mills v. Fulmarque, Inc., 360 S.W.3d 362, 368
      (Tenn. 2012) (citations omitted). When a statute’s language is clear and
      unambiguous, we enforce the statute as written; we need not consider other
      sources of information. Frazier v. State, 495 S.W.3d 246, 249 (Tenn.
      2016). We apply the plain meaning of a statute’s words in normal and
      accepted usage without a forced interpretation. Baker v. State, 417 S.W.3d
      428, 433 (Tenn. 2013). We do not alter or amend statutes or substitute our
      policy judgment for that of the Legislature. Armbrister v. Armbrister, 414
      S.W.3d 685, 704 (Tenn. 2013).

Coleman v. Olson, 551 S.W.3d 686, 693 (Tenn. 2018).

      In pertinent part, Tenn. Code Ann. § 68-11-272 provides:


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       (c)(1) Records of a QIC [quality improvement committee] 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.

Tenn. Code Ann. § 68-11-272(c)(1) (2013).

       Plaintiff argues in his brief on appeal that the purpose of a “QIC is to evaluate the
safety and quality of patient care, not threaten or intimidate employees into changing
statements or altering documents.” In support of this argument Plaintiff states that the
context within which the ‘coercion’ occurred does not fit within the statutorily defined
purpose of a QIC and, therefore, the evidence cannot be confidential and privileged under
Tenn. Code Ann. § 68-11-272. Plaintiff cites to section (b)(4) of Tenn. Code Ann. § 68-
11-272, which provides:

       (4) “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), 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 by performing functions including, but not limited to:

         (A) Evaluation and improvement of the quality of healthcare services
         rendered;
         (B) Determination that health services rendered were professionally
         indicated or were performed in compliance with the applicable standards
         of care;
         (C) Determination that the cost of health care rendered was reasonable;
         (D) Evaluation of the qualifications, credentials, competence and
         performance of healthcare providers or actions upon matters relating to
         the discipline of any individual healthcare provider;
         (E) Reduction of morbidity or mortality;

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         (F) Establishment and enforcement of guidelines designed to keep the
         cost of health care within reasonable bounds;
         (G) Research;
         (H) Evaluation of whether facilities are being properly utilized;
         (I) Supervision, education, discipline, admission, and the determination
         of privileges of healthcare providers;
         (J) Review of professional qualifications or activities of healthcare
         providers;
         (K) Evaluation of the quantity, quality and timeliness of healthcare
         services rendered to patients;
         (L) Evaluation, review or improvement of methods, procedures or
         treatments being utilized;
         (M) Participation in utilization review activities, including participation
         in review activities within the facility or hospital system and activities in
         conjunction with an insurer or utilization review agent under title 56,
         chapter 6, part 7;
         (N) The evaluation of reports made pursuant to § 68-11-211 and any
         internal reports related thereto or in the course of a healthcare
         organization’s patient safety and risk management activities;
         (O) Activities to determine the healthcare organization’s compliance
         with state or federal regulations;
         (P) Participation in patient safety activities as defined at § 921 of the
         Patient Safety and Quality Improvement Act of 2005;

Tenn. Code Ann. § 68-11-272(b)(4) (2013).

      Defendants argue in their brief on appeal that the meeting between Miller and
Solomon was a closed door QIC meeting with only one other person present, another one
of Defendants’ employees, and that:

      the purposes of [Solomon’s] investigation, evaluation, and interviews were
      to (A) evaluate and potentially improve the quality of health care services
      which had been rendered; (B) determine whether the health services
      rendered were professionally indicated or were performed in compliance
      with applicable standards of care; (C) evaluate the qualifications,
      competence and performance of providers at LCCG; (D) reduce morbidity
      or mortality; (E) research the timeline of events during [Deceased’s]
      residency; (F) review the professional qualifications or activities of
      providers at LCCG; (G) evaluate the quantity, quality, and timeliness of
      health care services rendered to [Deceased]; (H) evaluate, review, or
      potentially improve the methods, procedures, or treatments utilized at
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        LCCG; (I) evaluate internal reports (including Ms. Miller’s “incident
        report”) created in the course of LCCG’s resident safety and risk
        management activities; and (J) determine LCCG’s compliance with state
        and federal regulations.

       Defendants allege that Plaintiff’s counsel contacted Miller while she still was
employed by Defendants without Defendants’ consent or knowledge and conducted a
telephone interview of Miller during which Miller made the allegations about being
coerced to make changes to her written statement documenting the falls suffered by
Deceased.

       Defendants also assert that the testimony of Miller regarding the ‘coercion’ does
not qualify as an “original source” because Miller obtained this information exclusively
through participation in the QIC process.1 Defendants also argue that there is no
exception for bad faith or malice because the statute refers to persons providing
information to a QIC, not persons providing information elsewhere.2

        Defendants also argue that creating an implied exception to the privilege would
undermine “the entire quality improvement process as a whole,” and would go against the
legislative purpose of the statute. Defendants assert that contrary to Plaintiff’s assertion
that an implied exception is necessary to deter fraud, “this specific case exposes the
fallacy of that fantastical position” as the alleged coercion was to cover up possible
negligent conduct to evade liability and if that were what Defendants were doing then
they would voluntarily have produced Miller’s “supposedly altered statement.”
Defendants assert that instead of producing this allegedly altered statement they have
withheld all of Miller’s statements from discovery pursuant to the QIC privilege.

      The Trial Court found, and it is not contested, that the statements made by Miller
were made during a QIC meeting. The evidence in the record on appeal does not
preponderate against this finding.


1
  Section (c)(2) of the statute provides: “Any information, documents or records, which are not produced
for use by a QIC or which are not produced by persons acting on behalf of a QIC, and are otherwise
available from original sources, shall not be construed as immune from discovery or use in any judicial or
administrative proceeding merely because such information, documents or records were presented during
proceedings of such committee.” Tenn. Code Ann. § 68-11-272(c)(2) (2013).
2
  Section (d) provides: “No healthcare organization’s officers, director, trustee, healthcare providers,
administrative staff, employee or other committee members or attendees shall 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, if such information is provided in good faith and without malice and on the
basis of facts reasonably known or reasonably believed to exist. Tenn. Code Ann. § 68-11-272(d) (2013).
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       The language of Tenn. Code Ann. § 68-11-272 clearly and unambiguously
provides that the purpose of a QIC is to “evaluate the safety, quality, processes, costs,
appropriateness or necessity of healthcare services . . . .” Tenn. Code Ann. § 68-11-
272(b)(4) (2013). While the statute does provide for protections to allow healthcare
providers to evaluate healthcare via a QIC process in order to improve healthcare, the
alleged statements at issue in this case were not designed to “evaluate the safety, quality,
processes, costs, appropriateness or necessity of healthcare services . . . .” Tenn. Code
Ann. § 68-11-272(b)(4) (2013). Instead, the statements at issue concern the allegation
that Defendants’ employee was threatened or coerced to change her account of the care
rendered to Deceased and to alter records concerning that care. Thus, the statements at
issue concern an alleged attempt to coerce perjury or commit a fraud. Suborning perjury
and committing fraud are directly contrary to the purpose of Tenn. Code Ann. § 68-11-
272 because such fraud or perjury only could make it more difficult to “evaluate the
safety, quality, processes, costs, appropriateness or necessity of healthcare services . . . .”
Tenn. Code Ann. § 68-11-272(b)(4) (2013).

       We cannot accept that it was the intent of our General Assembly to allow
healthcare providers to use a QIC meeting as a shield to commit such acts as suborning
perjury and then hide or cover up those bad acts by claiming peer review privilege.
Nothing in the statute’s text even hints otherwise as to the General Assembly’s intent.
Our General Assembly made the policy decision to protect acts taken in furtherance of
improving healthcare. We will not “substitute our policy judgment for that of the
Legislature.” Coleman, 551 S.W.3d at 693. The alleged acts in the case now before us,
however, were taken not to improve healthcare but to suborn perjury.

       We note that the situation in the case now before us is an unusual and limited one.
While most all of what happens during a QIC meeting is protected under the statute from
disclosure, the protections do not extend to allowing healthcare providers to threaten or
coerce employees so as to suborn perjury or commit fraud. Our holding will not
undermine the peer review process as a whole, as Defendants argue, because actions
taken “to evaluate the safety, quality, processes, costs, appropriateness or necessity of
healthcare services . . .” still will be protected under the statute. Tenn. Code Ann. § 68-
11-272(b)(4) (2013). The alleged statements at issue in this case, however, concern
suborning perjury, an act not protected by the peer review statute as suborning perjury is
a crime pursuant to Tenn. Code Ann. § 39-16-507 (2014) and serves only to defeat the
stated purpose of Tenn. Code Ann. § 68-11-272. In no known universe does suborning
perjury fit within the General Assembly’s stated purpose of Tenn. Code Ann. § 68-11-
272. Given all of the above, we reverse the Trial Court’s July 31, 2017 order holding
Miller’s testimony privileged and inadmissible.



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                                       Conclusion

       The judgment of the Trial Court is reversed, and this cause is remanded to the
Trial Court for further proceedings consistent with this Opinion and for collection of the
costs below. The costs on appeal are assessed against the appellees, Gray Medical
Investors, LLC; and Life Care Centers of America d/b/a Life Care Center of Gray.



                                         ___________________________________
                                         D. MICHAEL SWINEY, CHIEF JUDGE




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