                   IN THE COURT OF APPEALS OF TENNESSEE
                                AT KNOXVILLE
                           September 17, 2008 Session

  KIMBERLY POWELL v. COMMUNITY HEALTH SYSTEMS, INC.,
NATIONAL HEALTH CARE OF CLEVELAND, INC., d/b/a CLEVELAND
                COMMUNITY HOSPITAL

                 Direct Appeal from the Chancery Court for Bradley County
                       No. 05285     Hon. Jerri S. Bryant, Chancellor



                    No. E2008-00535-COA-R9-CV - Filed January 2, 2009



We granted an appeal pursuant to Rule 9, Tenn. R. App. P., to determine the extent of discovery that
would be allowed of an infection control nurse who had investigated the infectious rates at the
hospital, because the investigation was prompted by the hospital’s Quality Control Committee.
Defendants argued that the investigation was confidential and privileged, pursuant to Tenn. Code
Ann. 63-6-219. The Trial Court allowed discovery and we affirm, setting forth parameters of the
discovery.

Tenn. R. App. P.9 Appeal Granted; Judgment of the Chancery Court Affirmed.


HERSCHEL PICKENS FRANKS, P.J., delivered the opinion of the Court, in which SHARON G. LEE,
SP.J., joined, and CHARLES D. SUSANO , JR., J., dissented and filed a separate opinion.


Cynthia D. Hall, Chattanooga, Tennessee, for appellant, National Health Care of Cleveland, Inc.

Timothy L. Warnock and John R. Jacobson, Nashville, Tennessee, for appellant, Community Health
Systems, Inc.

Grace E. Daniell, P.C., Chattanooga, Tennessee, for appellee, Kimberly Powell.


                                            OPINION

               Plaintiff filed a Complaint against Community Health Systems, Inc., National
Healthcare of Cleveland, Inc., d/b/a Cleveland Community Hospital, Tristate Orthopedics,
Rehabilitation and Pain Management Center, P.C., and Rickey L. Hutcheson, D.O. Plaintiff alleged
that she was harassed and discriminated against in her employment, and that she had been a victim
of assault and battery, constructive discharge, outrageous conduct, intentional/negligent infliction
of emotional distress. She alleged she was repeatedly subjected to unwanted sexual advances,
touching, and sexually offensive comments by Dr. Hutcheson, and on one occasion he touched her
breasts, exposed himself, and masturbated on her.

               Defendants answered, denying liability and National Healthcare of Cleveland, Inc.,
d/b/a Cleveland Community Hospital then filed a Motion for Protective Order, asserting that plaintiff
should not be allowed to depose Sherri Sexton, a former infection control nurse, regarding her
investigation of infection rates at the hospital, because when she had made an investigation in 2005
regarding increased infection rates, she was doing so as part of a quality control committee and was
working under the direction of the Chief Quality Officer at the hospital. They asserted that the
investigation was confidential and privileged, not subject to discovery pursuant to Tenn. Code Ann.
§63-6-219.

                Defendants attached an Affidavit from their attorney who stated that plaintiff testified
in her deposition that she had heard rumors that Hutcheson had some type of infection and was “in
hysterics” after the masturbation incident. The attorney stated that plaintiff’s attorney questioned
many hospital employees about an increased infection rate at the hospital, and that Sexton was
identified as the infection control nurse who would have investigated the infection rate. They also
attached the Affidavit of Robin Byler, who stated that she served as Chief Quality Officer at the
hospital from February 2004 until May 2006, and was responsible for maintaining quality at the
hospital, including review of peer records. She stated she was also over the infection control nurse,
who at that time was Sherri Sexton. Byler stated that there was a time period when they noted
increased infection rates in the post-op area of the hospital, and so Sexton investigated as part of a
medical quality review committee. She further stated that the function and purpose of the
investigation was to evaluate and improve the quality of healthcare rendered by providers at the
hospital, and that all investigative work done by Sexton was as part of a quality review committee,
and that this was something the hospital treated as privileged and confidential under Tenn. Code
Ann. §63-6-219.

                 Plaintiff filed a Response, stating that she was informed that there was an increased
infection rate in post-op patients who were being treated primarily by Dr. Hutcheson, and that as a
result of the increased infection rate, meetings were held at the hospital that plaintiff and others were
required to attend. Plaintiff stated the employees and doctors were tested in an attempt to determine
the source of the infection, and that plaintiff was told by another employee that Hutcheson had
Hepatitis C. Plaintiff stated that she was pregnant at the time, and became fearful that she and her
child might have been exposed because Hutcheson had ejaculated on her arm during the
masturbation incident.

               Plaintiff argued that the peer review statute expressly stated that it did not prohibit
records available from an “original source” that were made in the regular course of business from
being discovered in a civil proceeding just because they were used/presented during proceedings of
a peer review committee. She further argued that since Sexton performed the investigation, she was


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the “original source”, and that her findings should not be immune from discovery simply because
they might have been reported to a medical quality review committee, as they were made in the
regular course of her job duties.

                Plaintiff attached excerpts from the deposition of Robin Byler, who testified that in
early 2005, they noticed an increased rate of post-op infections at the hospital, and wanted to find
out what the source might be. She testified the patients who saw increased post-op infection were
primarily orthopedic patients, and she was not aware of Hutcheson having any type of infection, and
that no allegations regarding that were ever made in any of the staff meetings. She testified the
hospital did not test physicians for hepatitis C, but physicians did have to submit a statement from
a doctor that they were without such types of diseases.

                Plaintiff also attached excerpts from Hutcheson’s deposition, wherein he testified that
he did not have hepatitis C to his knowledge. She then filed a Motion to Take Second Deposition
of Sherri Sexton and Motion to Compel. The Trial Court entered an Order, stating that the
information sought by plaintiff was not documentation generated during a peer review process, but
was part of the hospital’s regular course of business, and was also otherwise available from original
sources. The Court concluded that the plaintiff would be allowed to take a further deposition of
Sexton.

               Defendants filed a Motion for Interlocutory Appeal, which the Trial Court granted,
and this Court granted a Tenn. R. App. P. 9, appeal.

                The record contains the deposition of Robin Byler, who testified that she worked at
Cleveland Community Hospital from 2003 to 2006, and was employed as assistant chief nursing
officer and chief quality officer. She testified that she supervised the infection control nurse, and that
the records of infections were kept as “surveillance records” by the infection control office. She said
that Ms. Sexton was responsible for monitoring the infection rate.

                  In Sexton’s deposition, which was also part of the record, she testified that she was
a nurse practitioner and an RN, and that she went to work for the hospital in 2000 in Infection
Control and Education. She testified that in 2004, they changed her position to Infection Control
Director and Education Coordinator. She described her job as surveillance for infections. She
related that she would receive patient census reports on a daily basis, as well as surgery lists, and
would check to make sure that appropriate precautions were taken for patients with infections. She
testified that it was part of her job to investigate any outbreaks and try to determine the cause, and
all this was done in the regular course of business of the hospital.

                Sexton testified that sometimes the quality review committee would indicate that a
study needed to be done because there was an outbreak, and she would do an in-depth study. She
stated that she had performed 5 or 6 such studies at the direction of the quality review committee,
and the quality review committee was designed to identify areas of potential problems and to allow
internal review and peer evaluation to correct the same. She testified that the surveillance


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undertaken for the quality review committee was more specific and tailored, and not part of her
routine duties. She explained that known infections would be addressed as part of her normal job,
but that targeting an area that needed improvement would come under quality review. She testified
that she worked in a dual role, as infections were part of her normal job and could be addressed by
quality review.

                 Sexton testified that there was a period of time during plaintiff’s employment when
there were more post op infections than normal, and that the normal response which she would take
in that instance would be to review the charts, culture equipment, do interviews, and do culture
sampling/testing of staff. She testified that if it was identified that a specific doctor had a higher
infection rate, a request would be submitted to the quality review committee for approval of an in-
depth evaluation. She said she could not just target a specific individual without committee
approval. She admitted that it was part of her normal job duties to track all post op infections and
send a report to the quality review committee. She explained that she looked at all infections as part
of her normal job, and that if she saw a large number of them she would then go to peer review for
permission to do an in-depth evaluation.

                 Sexton testified she was not aware of Dr. Hutcheson having Hepatitis C, and stated
that he was required to disclose such information and he had not, so she had no reason to think that
he had it. She testified that she reported her findings to the review committee, and developed written
reports that she transmitted to the committee. She testified that she did daily worksheets as part of
her normal job duties but those were shredded when she made the larger reports to the review
committee.

              The sole issue on appeal is whether the Trial Court erred in allowing plaintiff to
depose Sexton related to the hospital’s investigation of an increased infection rate in the post op area,
because such information is protected by the Tennessee Peer Review Law?

                Tennessee’s Peer Review Statute, Tenn. Code Ann. §63-6-219, states in pertinent part
as follows:

                (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 health care 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 performed in compliance with the applicable standard of care, or
                that the cost of health care rendered was considered reasonable by the providers of


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               professional health care services in the area and includes a committee functioning as
               a utilization review committee under the provisions of Public Law 89-97 (42 U.S.C.
               §§ 1395-1395pp) (Medicare Law), or as a utilization and quality control peer review
               organization under the provisions of the Peer Review Improvement Act of 1982,
               Public Law 97-248, §§ 141-150, or a similar committee or a committee of similar
               purpose, to evaluate or review the diagnosis or treatment or the performance or
               rendition of medical or hospital services that are performed under public medical
               programs of either state or federal design.

                                               ***

               (e) All information, interviews, incident or other reports, statements, memoranda or
               other data furnished to any committee as defined in this section, and any findings,
               conclusions or recommendations resulting from the proceedings of such committee
               are declared to be privileged. All such information, in any form whatsoever, so
               furnished to, or generated by, a medical peer review committee, shall be privileged.
               The records and proceedings of any such committees are confidential and shall be
               used by such committee, and the members thereof only in the exercise of the proper
               functions of the committee, and shall not be public records nor be available for court
               subpoena or for discovery proceedings. One (1) proper function of such committees
               shall include advocacy for physicians before other medical peer review committees,
               peer review organizations, health care entities, private and governmental insurance
               carriers, national or local accreditation bodies, and the state board of medical
               examiners of this or any other state. The disclosure of confidential, privileged peer
               review committee information to such entities during advocacy, or as a report to the
               board of medical examiners under § 63-6-214(d), or to the affected physician under
               review, does not constitute either a waiver of confidentiality or privilege. 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 and 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 they were presented during proceedings of such committee.

(Emphasis added).

               Both parties rely on the case of Stratienko v. Chattanooga-Hamilton County Hospital
Auth., 226 S.W.3d 280 (Tenn. 2007). In that case, Dr. Stratienko sought to discover records relating
to another doctor’s credentials from the defendant, and the defendant refused, relying on the above
statute. The Supreme Court held that “information, documents or records otherwise available from
original sources” were subject to discovery, but only to the extent they were not requested from the
peer review committee and were not otherwise privileged. Id. The Court specifically held that these
records could be obtained from the original sources. Id.
               The Court quoted with approval from a South Carolina Supreme Court opinion


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construing a similar South Carolina peer review statute, as follows:

                [t]he confidentiality statute provides that documents otherwise available from the
original source do not become privileged merely because they are presented to the committee. We
interpret the “otherwise available” language to mean that information that is available from a source
other than the committee does not become privileged simply by being acquired by the review
committee. Accordingly, the statute does not protect information if obtained from alternative
sources. Hence, the plaintiff seeking discovery cannot obtain documents which are available from
the original source directly from the hospital committee, but may seek them from alternative sources.

Id. at 285-286, quoting McGee v. Bruce Hospital System, 312 S.C. 58, 439 S.E.2d 257, 260 (1993).

                 The statute has been construed by the Eastern Division of the Federal District Court.1
In that case the defendant claimed privilege under the TPRL and the court said “reports prepared in
the normal course of business by Defendants relating to the care of Mr. Brown are not protected
merely because they have been provided to a peer review committee. Rather, the copies of the
documents in the possession of a peer review committee are protected, but the documents may still
be obtained from the original source, the Defendants.”

                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. Applying 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 prevent its discovery. The statute expressly provides that records regularly
made by the hospital and available from alternative sources are discoverable.

               Accordingly, we affirm the Judgment of the Trial Court and remand with the cost
of the appeal assessed to the appellants.



                                                        ______________________________
                                                        HERSCHEL PICKENS FRANKS, P.J.




        1
            This case is reported by Westlaw as WL1751675 (2008).

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