                                                                                          06/21/2017
               IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE
                                 April 11, 2017 Session

JOHN F. PINKARD, M.D. v. HCA HEALTH SERVICES OF TENNESSEE,
            INC. D/B/A SUMMIT MEDICAL CENTER

                 Appeal from the Circuit Court for Davidson County
                   No. 08C1708      Joseph P. Binkley, Jr., Judge


                            No. M2016-01846-COA-R9-CV


We 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.

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

FRANK G. CLEMENT, JR., P.J., M.S., delivered the opinion of the Court, in which ANDY D.
BENNETT and JOHN W. MCCLARTY, JJ., joined.

Dixie 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.

C. Bennett Harrison, Jr., Sean C. Wlodarczyk, and John D. Kitch, Nashville, Tennessee,
for the appellee, John F. Pinkard, M.D.

                                       OPINION

      The 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.
Pinkard’s privileges.

        On May 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.

       Dr. 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

                                          -2-
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.

        In 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.

        An 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 hearing.

       Prior 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

                                            -3-
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.

       Dr. 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.

       After 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 privileges.

         Dr. 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.

       After 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.



                                           -4-
       The 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.

       Effective 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.

       On July 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.1 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.

      Dr. Pinkard opposed the motion for summary judgment arguing that Summit
waived the privilege when it submitted the fair hearing transcript and other exhibits from

       1
          The TPRL uses the term “peer review committee,” whereas the HCQIA uses the term “quality
improvement committee.” Thus, when discussing the TPRL, we primarily refer to the activities of the
peer review committee as the “peer review process;” however, when talking about the HCQIA, we
primarily refer to the process of review as the “quality improvement process.” The two are virtually the
same.



                                                 -5-
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.

        The 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.

       Summit 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.

       Because 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:


                                               -6-
              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.
              McKenzie Mem’l Hosp., 667 S.W.2d 497, 498 (Tenn. Ct.
              App. 1984)). In this context, this “[C]ourt is supreme in fact
              as well as in name.” Barger v. Brock, 535 S.W.2d 337, 341
              (Tenn. 1976).

       417 S.W.3d 393, 402 (Tenn. 2013).

       Similarly, in State v. Mallard, the Tennessee Supreme Court states that the
       “legislature can have no authority to enact rules, either evidence or
       otherwise that strike at the very heart of a court’s exercise of judicial
       power.” 40 S.W.3d 473, 483 (Tenn. 2001)(emphasis added). Thus, the
       Court concludes that it cannot constitutionally apply T.C.A. § 68-11-
       272(c)(1) in a manner that would exclude all QIC related evidence of
       Summit’s alleged bad faith.

       After concluding that the statute, as applied to the facts of this case, was
unconstitutional, the trial court granted Summit’s motion for an interlocutory appeal
pursuant to Tenn. R. App. P. 9. We also granted permission to appeal the constitutional
issue and allowed the State of Tennessee to participate as an intervenor-appellant.

                                         ANALYSIS

      Dr. Pinkard contends that Tenn. Code Ann. § 68-11-272(c)(1), as applied to the
facts of this case, is unconstitutional because the General Assembly created an
evidentiary rule that usurps the authority of the judiciary by barring the admission of all
evidence coming from the peer review proceedings. Alternatively, Dr. Pinkard contends
Summit waived the privilege by relying on privileged evidence to support its motion for
summary judgment. Summit and the State of Tennessee insist the statute is constitutional
because it affects the general welfare of the citizens of this state, the encroachment on the

                                            -7-
judicial department’s authority is minor, and the privilege is reasonable and workable
within the evidentiary framework already adopted by the judiciary. Summit also insists it
did not waive the privilege. We conclude that Summit and the State of Tennessee have
the better argument on each issue.

                                 I. SEPARATION OF POWERS

       Because the issue of constitutional interpretation is a matter of law, our review is
de novo on the record with no presumption of correctness accorded to the trial court.
Waters v. Farr, 291 S.W.3d 873, 882 (Tenn. 2009). An as-applied constitutional
challenge to a statute requires the Court to examine how the statute operates against a
particular litigant in light of the specific facts of the case. City of Memphis v. Hargett,
414 S.W.3d 88, 107 (Tenn. 2013). The Court begins the analysis with a presumption that
the statute is constitutional. Waters, 291 S.W.3d at 882. Therefore, it must resolve any
doubt it may have as to the validity of the statute in favor of its constitutionality.
Gallaher v. Elam, 104 S.W.3d 455, 459 (Tenn. 2003).

       Separation of powers is a fundamental principle of American constitutional
government. Underwood, 529 S.W.2d at 47.2 The citizens of Tennessee preserved this
fundamental principle in article II, sections 1 and 2 of the Tennessee Constitution. Id.
Section 1 divides our state government into three distinct departments—the legislative,
the executive, and the judicial. Tenn. Const. art. II, § 1. Section 2 provides that one
department shall not exercise any of the powers belonging to the others. Tenn. Const. art.
II, § 2. In theory, the legislative department makes and repeals the law, the executive
department administers and enforces the law, and the judicial department interprets and
applies the law. Underwood, 529 S.W.2d at 47. However, the “theoretical lines of
demarcation” between the three departments are often blurred, such that one department
may need to encroach upon another in order to fully effectuate one of its powers. Id.;
Mallard, 40 S.W.3d at 481. Hence, the Tennessee Supreme Court has held that, though
the judiciary has the inherent power to establish evidentiary rules, the General Assembly
may also do so, if it is in furtherance of its power to enact substantive law. Mallard, 40
S.W.3d at 481.

       With the foregoing in mind, public policy concerns should drive the enactment of
the statute in question. Martin v. Lear Corp., 90 S.W.3d 626, 631 (Tenn. 2002).
Nevertheless, the legislature cannot enact evidentiary rules “that strike at the very heart of
a court’s exercise of judicial power.” Mallard, 40 S.W.3d at 483. This means, in part, that
the statute cannot “impair the independent operation of the judicial branch” by

       2
          In his farewell address, George Washington advised, “The spirit of encroachment tends to
consolidate the powers of all the departments in one, and thus to create . . . a real despotism.”
Washington’s Farewell Address, 1796, available at avalon.law.yale.edu/18th_century/washing. asp.


                                              -8-
eliminating the trial court’s discretion to make evidentiary determinations of logical or
legal relevancy. Id. To that end, the rule should be “reasonable and workable within the
framework already adopted by the judiciary.” Id. at 481.

        By enacting the HCQIA, the General Assembly stated that it was “the policy of
this state to encourage the improvement of patient safety, the quality of patient care and
the evaluation of the quality, safety, cost, processes and necessity of healthcare services
by hospitals, healthcare facilities and healthcare providers.” Tenn. Code Ann. § 68-11-
272(a). A key component of this process is the Quality Improvement Committee (QIC),
which is defined as:

       [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 . . . the purpose of which is to evaluate the safety,
       quality, processes, costs, appropriateness or necessity of healthcare
       services.

Tenn. Code Ann. § 68-11-272(b)(4). The functions of a QIC include but are 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;

          .…

           (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;

          ….

           (I) Supervision, education, discipline, admission, and the determination
       of privileges of healthcare providers;




                                           -9-
          (J) Review of professional qualifications or activities of healthcare
       providers; . . .

Tenn. Code Ann. § 68-11-272(b)(4).

        To encourage the improvement of patient safety, the quality of patient care, and
the evaluation of the quality, safety, and necessity of healthcare services, the General
Assembly stated that “certain protections” must be provided to all who participate in or
provide information to a QIC. Tenn. Code Ann. § 68-11-272(a) (“Tennessee further
recognizes that certain protections must be available to these entities to ensure that they
are able to effectively pursue these measures.”). One of the protections provided by the
HCQIA is that no healthcare organization, healthcare providers, committee members, or
any person providing information to a QIC shall be held liable for damages or other relief
resulting from any decision of a QIC, if made “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)(2). Furthermore, all proceedings, actions and decisions by a QIC are
presumed to have been completed in good faith and without malice, and any person
alleging lack of good faith has the burden of proving bad faith and malice.3 Tenn. Code
Ann. § 68-11-272(g).

       To further protect those who participate in a QIC or provide information or
testimony to a QIC, the General Assembly mandated that all records of a QIC, including
testimony or statements by persons relating to activities of the QIC, are not only
confidential and privileged, they are protected from discovery or admission into
evidence. Tenn. Code Ann. § 68-11-272(c)(1).

       Records of a QIC 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.

Id.

       3
          The HCQIA also states: “Any person providing information to a QIC is presumed to have acted
in good faith and without malice. Any person alleging lack of good faith has the burden of proving bad
faith and malice.” Tenn. Code Ann. § 68-11-272(f).


                                               - 10 -
       Nevertheless, the HCQIA provides an exception to the above; it is known as the
“original source” exception. See Tenn. Code Ann. § 68-11-272(c)(2). Pursuant to this
exception, any information, documents or records that were not produced for use by a
QIC, or which were not produced by persons acting on behalf of a QIC, and are available
from original sources, are not immune from discovery or admission into evidence even if
the information was presented during a QIC proceeding.4 Tenn. Code Ann. § 68-11-
272(c)(2). Furthermore, persons who provided testimony or information to or as part of a
QIC are not exempt from discovery and are not prohibited from testifying as to their
knowledge of facts or their opinions. Id.; see Powell v. Community Health Systems, Inc.,
312 S.W.3d 496, 510 (Tenn. 2010); see also Stratienko v. Chattanooga–Hamilton County
Hosp. Auth., 226 S.W.3d 280, 287 (Tenn. 2007) (Holding that, under the TPRL,
information that had been furnished to a peer review committee by original sources
“outside the committee” could be obtained directly from the original sources, unless
otherwise privileged).5

       We find it significant that the original source exception to the HCQIA privilege
parallels the work product doctrine in many respects.6 See Tenn. R. Civ. P. 26.02(3); see
also Robert Banks, Jr. & June F. Entman, Tennessee Civil Procedure § 8-1[i] at 8-25 (3d
ed. 2009). Like the original source exception, the work product doctrine does not prevent
the discovery of facts from the original source of the information. Id. § 8-1[i] at 8-26.

        4
            Tenn. Code Ann. § 68-11-272(c)(2) states:

        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.
        5
          Powell and Stratienko concerned the now repealed TPRL privilege under Tenn. Code Ann. §
63-6-219(e). Powell, 312 S.W.3d at 513; Stratienko, 226 S.W.3d at 287. The TPRL privilege and the
current HCQIA privilege are substantially similar. Tenn. Code Ann. § 53-6-219(e) provides, “All
information, interviews, incident or other reports, statements, memoranda or other data furnished to any
committee as defined in this section and any such findings, conclusions or recommendations resulting
from the proceedings of such committee are declared to be privileged…” Tenn. Code Ann. § 53-6-219(e)
also contained an original source exception.
        6
           The work product doctrine encourages parties to diligently prepare their cases by protecting the
materials a party or her representative has produced in anticipation of litigation. Tenn. R. Civ. P. 26.02(3);
Robert Banks, Jr. & June F. Entman, Tennessee Civil Procedure § 8-1[i] at 8-25 (3d ed. 2009). It does
not, however, prevent the discovery of any facts learned by the adverse party or her representative. Id. §
8-1[i] at 8-26. Thus, while a litigant would not gain access to any of the witness interviews the adverse
party had conducted in anticipation of litigation, the litigant could discover the facts revealed in those
communications by personally interviewing the witnesses. See id. § 8-1[i] at 8-28.


                                                   - 11 -
Thus, while the work product doctrine prohibits a litigant from obtaining from the
adverse party its work product, the litigant may obtain substantially the same information
directly from the original sources. See id. § 8-1[i] at 8-28. Although the HCQIA privilege
is problematic, it does not prohibit Dr. Pinkard from obtaining evidence that goes to the
heart of the case from the original sources.

       With regard to Dr. Pinkard’s contention that the privilege created by Tenn. Code
Ann. § 68-11-272(c)(1) constitutes an evidentiary rule that usurps the authority of the
judiciary, we note that our courts recognize many statutorily mandated privileges.
Moreover, although Tennessee Rule of Evidence 501 expresses the basic concept
undergirding our evidentiary rules that the trier of fact should have access to any relevant
evidence to facilitate the ascertainment of truth, the rule contemplates statutorily
mandated exceptions.7 See Tenn. R. Evid. 501, Adv. Comm’n Cmt. Recognized
exceptions to Rule 501 include the accident report privilege, Tenn. Code Ann. § 55-10-
114(b), the legislative-committee-witness privilege, Tenn. Code Ann. § 24-7-114, the
news reporter’s privilege, Tenn. Code Ann. § 24-1-208, and the clergy-penitent privilege,
Tenn. Code Ann. § 24-1-206. Tenn. R. Evid. 501, Adv. Comm’n Cmt.

       Admittedly, while our evidentiary rules seek to illuminate the truth, privileges
effectively “‘shut out the light.’” Lee Medical, Inc. v. Beecher, 312 S.W.3d 515, 525
(Tenn. 2010) (quoting 1 McCormick on Evidence § 72, at 339 (Kenneth S. Broun, ed., 6th
ed. 2006)). Nevertheless, we recognize them “when they protect values deemed even
more important than the ascertainment of truth.” Neil P. Cohen, Sarah Y. Sheppeard &
Donald F. Paine, Tennessee Law of Evidence § 5.01[4][a], at 5-12 (6th ed. 2013). For
example, the attorney-client privilege seeks to encourage honest communication between
an attorney and his or her client, thus leading to more effective representation. Culbertson
v. Culbertson, 393 S.W.3d 678, 684 (Tenn. Ct. App. 2012); see Tenn. Code Ann. § 62-1-
116. The spousal communication privilege protects the confidential communication
between spouses, thus providing support to a relationship with considerable social
significance. State v. Price, 46 S.W.3d 785, 799 (Tenn. Crim. Ct. App. 2000); see Tenn.
Code Ann. § 24-1-201(b). Similarly, the HCQIA privilege protects an overriding interest


           7
               Tennessee Rule of Evidence 501 provides:

       Except as otherwise provided by constitution, statute, common law, or by these or other rules
promulgated by the Tennessee Supreme Court, no person has the privilege to:

           (1)       Refuse to be a witness;
           (2)       Refuse to disclose any matter;
           (3)       Refuse to produce any object or writing; or
           (4)       Prevent another from being a witness or disclosing any matter or producing any object or
writing.


                                                     - 12 -
in patient safety, and it achieves that objective by encouraging candor within a hospital’s
quality improvement process. See Tenn. Code Ann. § 68-11-272(a).

       Because the General Assembly enacted the privilege in furtherance of the public
policy of this state, the privilege achieves that objective by encouraging candor within a
hospital’s quality improvement process, and the privilege is reasonable and workable
within the framework of evidentiary rules already recognized by the judiciary, see
Mallard, 40 S.W.3d at 481, we are unable to conclude that Tenn. Code Ann. § 68-11-
272(c)(1), as applied to the facts of this case, is unconstitutional.

                                       II. WAIVER

      The constitutionality of the HCQIA notwithstanding, Dr. Pinkard contends that
Summit waived the HCQIA privilege by utilizing privileged evidence to support its
motion for summary judgment. The trial court determined that the HCQIA privilege
under Tenn. Code Ann. § 68-11-272(c)(1) is not waivable and we agree with this ruling.

       Because the interpretation of a statute is a question of law, we review the trial
court’s decision de novo without any presumption of correctness. Tidwell v. City of
Memphis, 193 S.W.3d 555, 559 (Tenn. 2006).

      The Tennessee Supreme Court addressed a substantially similar waiver issue in
the context of the TPRL in Powell, 312 S.W.3d at 499 prior to the enactment of the
HCQIA. The rules of statutory construction permit us to “presume that the General
Assembly knows the ‘state of the law.’” Lee Medical, Inc., 312 S.W.3d at 527 (quoting
Murfreesboro Med. Clinic, P.A. v. Udom, 166 S.W.3d 674, 683 (Tenn. 2005)). Therefore,
we may presume the General Assembly was familiar with the manner in which our
Supreme Court interpreted the peer review privilege under the TRPL prior to enacting the
HCQIA. Id. (We may presume the General Assembly was aware of its own prior
enactments and is familiar with the manner in which our courts have interpreted those
enactments).

        Because Powell interpreted the TRPL and not the HCQIA, Powell is not
controlling; nevertheless, it is persuasive because the TPRL was superseded by the
HCQIA, and the TPRL and the HCQIA are substantially similar in six material respects.
First, each statute expressly states that its purpose is to promote confidentiality within a
hospital’s quality improvement process to ensure effective evaluation measures. See
Tenn. Code Ann. § 53-6-219(b)(1); see also Tenn. Code Ann. § 68-11-272(a). Second,
both statutes establish a presumption that healthcare entities have conducted the peer
review process in good faith and without malice. See Tenn. Code Ann. § 53-6-219(d)(3);
see also Tenn. Code Ann. § 68-11-272(g). Third, under the TPRL and the HCQIA, all
participants within the peer review process are entitled to immunity from damages unless
the plaintiff rebuts the presumption. See Tenn. Code Ann. § 53-6-219(d)(1); see also

                                           - 13 -
Tenn. Code Ann. § 68-11-272(g). Fourth, the privilege created by the HCQIA mirrors the
privilege created by the TPRL.8 Fifth, both statutes contain an “original source”
exception to the privilege. See Tenn. Code Ann. § 53-6-219(e); see also Tenn. Code Ann.
§ 68-11-272(c)(2). Sixth, neither contains a provision that expressly authorizes the waiver
of the statutory privilege.

       Furthermore, Powell is significant for three primary reasons. First, our Supreme
Court determined that no individual held the TPRL privilege because it was not created
for the benefit of a specific individual; rather, it “[was] intended to benefit the entire peer
review process.” Powell, 312 S.W.3d at 513. Second, the Court held that the TPRL
privilege could not be waived. Id. Third, the General Assembly was aware of the Court’s
interpretations of the TPRL prior to the enactment of the HCQIA and the HCQIA
contains no provisions that would require a different interpretation of the peer review
privilege.

       Powell’s interpretation of the TRPL privilege is also significant because most
privileges exist to protect a particular individual called the “holder” and only the holder
of the privilege can waive it. Cohen, supra, § 5.01[4][e], at 5-13. For example, the client
serves as the holder of the attorney-client privilege, and both spouses serve as the holders
of the spousal communication privilege. Culbertson, 393 S.W.3d at 684 (attorney-client
privilege); Price, 46 S.W.3d at 799 (spousal privilege). Moreover, these privileges are
waivable.9 In the case of the attorney-client privilege, it is automatically waived when the

        8
          Under Tenn. Code Ann. § 68-11-272(c)(1) of the HCQIA, “Records of a QIC 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….” Likewise, Tenn. Code Ann. § 53-6-219(e) of the TPRL provided, “All
information, interviews, incident or other reports, statements, memoranda or other data furnished to any
committee as defined in this section and any such findings, conclusions or recommendations resulting
from the proceedings of such committee are declared to be privileged. . . .”
        9
          Other privileges include but are not limited to the accountant-client privilege, see Tenn. Code
Ann. § 62-1-116, and the psychologist-patient privilege. See Tenn. Code Ann. § 63-11-213. Like the
attorney-client and spousal communication privilege, the client and the patient are the holders of both
privileges and the privileges are waivable by the holders. Federal Ins. Co. v. Arthur Anderson & Co., 816
S.W.2d 328, 330 (Tenn. 1991) (accountant privilege); see Tenn. Code Ann. § 63-11-213 (Confidential
communications between the psychologist and patient “are placed upon the same basis as those provided
by law between attorney and client.”). Moreover, each of these privileges has exceptions. For example,
the accountant-client privilege contains an exception for “procedures monitoring the propriety of the
actions of the accountant, such as peer review proceedings and ethical investigations.” Cohen, supra, §
5.06 at 5-23. The psychologist-patient privilege contains an exception in cases involving threats of bodily
harm, child abuse, or “when the patient files suit placing his or her mental condition at issue.” Id. §
5.07[1] at 5-24 and § 5.07[3] at 5-25; Tenn. Code Ann. § 33-3-206 (threats of bodily harm); Tenn. Code
Ann. § 37-1-614 (sexual abuse); see Kirchner v. Mitsui & Co.(U.S.A.), Inc., 184 F.R.D. 124, 129 (M.D.
Tenn. 1998) (mental condition).


                                                   - 14 -
client commences a legal malpractice action against the attorney. See Cohen, supra, §
5.03[2][d] at 5-20. For similar reasons, the spousal communication privilege is
automatically waived in divorce cases. See Tenn. Code Ann. § 24-1-201(b); see also
Cohen, supra, § 5.17[7] at 5-40. Because the Supreme Court’s interpretation of the TPRL
privilege was significantly different from most privileges, it stands to reason that the
General Assembly would have made substantive changes in the HCQIA if it disagreed
with the Court’s interpretation of the TPRL privilege in Powell. Nevertheless, because
Powell is merely persuasive, we must determine whether there is a holder of the HCQIA
privilege who may waive it and, if not, whether the court may waive the privilege.

       Similar to the purpose of the HCQIA, the stated purpose of the TPRL peer review
privilege was “to benefit the entire peer review process, not simply the individuals
participating in the process.” Powell, 312 S.W.3d at 513 (citations omitted).

       The [TPRL] peer review privilege is intended to benefit the entire peer
       review process, not simply the individuals participating in the process. The
       proper functioning of the peer review process hinges on the assurance to all
       persons participating in it—the members of the peer review committees, the
       persons under review, and the persons who provide information and
       opinions during the peer review process—that the information and opinions
       provided and discussed during the proceeding will remain confidential. Any
       breach in this confidentiality undermines the process. Therefore, we are
       hesitant to empower persons participating in the process to waive
       confidentiality unilaterally when the General Assembly itself has
       recognized no exceptions to the confidentiality requirement.

       Under Tennessee law, waiver of a statutory privilege should not be
       permitted if the waiver undermines public policy or impairs the rights of
       third parties. Permitting participants in a peer review proceeding to waive
       the privilege—no matter how meritorious the justification—not only
       undermines the efficacy of the peer review process but also adversely
       affects those who provided information or opinions to the peer review
       committee in reliance on the statutory assurance of confidentiality. Other
       courts construing peer review statutes similar to Tennessee’s that do not
       contain express waiver provisions have concluded that judicially-created
       waivers are inappropriate.

Id. (internal citations and footnotes omitted).

       Based on the foregoing analysis, the Court concluded that the TPRL peer review
privilege was intended to benefit the entire peer review process, not simply the
individuals participating in the process; thus, no individual could be the holder of the
privilege. Id. It also concluded that the courts should not judicially engraft a waiver

                                            - 15 -
provision onto the TPRL because that prerogative should be left up to the General
Assembly. Id.

       Similar to the TPRL, the stated purpose of the HCQIA is to encourage the
improvement of patient safety and the quality of patient care. Tenn. Code Ann. § 68-11-
272(a). To fulfill this purpose, the General Assembly stated that “certain protections”
must be provided to all who participate in or provide information to a QIC. Id. As
discussed in more detail earlier, the protections were for the benefit of, inter alia, those
who participate in a QIC or provide information or testimony to a QIC. In support of this
protection, the statutory scheme provides that all records of a QIC, including testimony or
statements by persons relating to activities of the QIC, are not only confidential and
privileged they are protected from discovery or admission into evidence. Tenn. Code
Ann. § 68-11-272(c)(1). Moreover, “[a]ny 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.” Id. Thus, the
beneficiaries of the statutory privilege are all who participate in or provide information to
a QIC. Summit is merely one of the beneficiaries. As a consequence, Summit is not “the
holder” of the HCQIA peer review privilege. Because it is not the holder of the privilege,
Summit cannot waive the privilege.

        As was the case with the TPRL, the HCQIA does not contain a provision that
permits the waiver of the privilege. See Powell, 312 S.W.3d at 512 (“Unlike the peer
review statutes in other states, Tenn. Code Ann. § 63-6-219(e) does not contain a
provision expressly permitting the waiver of the privilege. Nor does it contain any
express exceptions to the confidentiality rule.”). “In the absence of a statute to the
contrary, only the person entitled to the benefit of a privilege may waive the privilege. Id.
(citing Smith County Educ. Ass’n v. Anderson, 676 S.W.2d 328, 333 (Tenn. 1984)).
Nevertheless, “[t]he ability to waive a privilege, even a statutory one, is not without
limit.” Id.

        “[O]ne may waive by agreement the benefit of a statutory provision, unless public
policy or the rights of third parties would be violated.” Id. (quoting Black Diamond Coal
Mining Co. v. Rankin, 98 S.W.2d 311, 312 (Tenn. 1936)) (emphasis added). In this case,
the third parties are those who participated in the quality improvement process and who
provided information, documents and/or opinions who may not have participated but for
the expectation of confidentiality. See id. at 513. Realizing that any breach of this
confidentiality could undermine the quality improvement process, we cannot “empower
persons participating in the process to waive confidentiality unilaterally when the General
Assembly itself has recognized no exceptions to the confidentiality requirement.” Id.
Moreover, other courts construing peer review statutes similar to ours that do not contain
express waiver provisions have concluded that judicially-created waivers are
inappropriate. Id. (citations omitted). Further the Supreme Court stated that “the proper

                                           - 16 -
course is to defer to the General Assembly, as the author of the peer review privilege, to
determine if and under what circumstances the privilege may be waived.” Id.

       Based on the reasoning in Powell and the substantial similarities in the two
statutory schemes, we have concluded that no individual is the holder of the HCQIA
privilege and that the HCQIA privilege cannot be waived. The fact that the privilege
cannot be waived is problematic; nevertheless, we may not take the peer review privilege
lightly “because weakening this privilege could undermine the confidentiality that the
privilege is intended to protect.” Id. at 512. In this case, no person is the holder of the
privilege and the HCQIA statutory scheme does not expressly authorize the waiving of
the privilege. Therefore, we affirm the trial court’s ruling that the privilege cannot be
waived.

                                    IN CONCLUSION

       The judgment of the trial court is reversed, and this matter is remanded with costs
of appeal assessed against the appellee, John F. Pinkard, M.D.


                                                   ________________________________
                                                   FRANK G. CLEMENT, JR., P.J., M.S.




                                          - 17 -
