Powell v. Community Health Systems, Inc., E2008-00535-SC-R11-CV.

• Court: Supreme Court of Tennessee
• Citation: 312 S.W.3d 496
• Docket Number: No. E2008-00535-SC-R11-CV.,E2008-00535-SC-R11-CV.
• Parties: Kimberly POWELL v. COMMUNITY HEALTH SYSTEMS, INC. et al.
• Decision Date: 24 May 2010

312 S.W.3d 496

Kimberly POWELL
v.
COMMUNITY HEALTH SYSTEMS, INC. et al.

No. E2008-00535-SC-R11-CV.

Supreme Court of Tennessee, at Knoxville.

September 3, 2009 Session.

May 24, 2010.

312 S.W.3d 497

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C.J. Gideon, Jr., Brian P. Manookian, and Heather Piper-Coke, Nashville, Tennessee, for the appellant, National Healthcare of Cleveland, Inc. d/b/a Cleveland Community Hospital.

Grace E. Daniell and James M. Johnson, Chattanooga, Tennessee, for the appellee, Kimberly Powell.

G. Brian Jackson and David L. Johnson, Nashville, Tennessee, for the Amicus Curiae, Tennessee Hospital Association.

OPINION

WILLIAM C. KOCH, JR., J., delivered the opinion of the Court, in which CORNELIA A. CLARK, J., joined. GARY R. WADE, J., filed a separate opinion concurring in part and concurring in the judgment, in which JANICE M. HOLDER, C.J., joined. SHARON G. LEE, J., not participating.

This appeal involves the evidentiary privilege in the Tennessee Peer Review Law of 1967 Tenn.Code Ann. § 63-6-219 (Supp.2009). A former hospital employee filed suit in the Chancery Court for Bradley County against the hospital and an orthopaedic surgeon on the hospital's medical staff. During discovery, the former employee sought to depose the hospital's infection control director regarding the details of an investigation into postoperative nosocomial infections and her knowledge of whether the defendant surgeon had tested positive for infectious diseases. The hospital moved for a protective order on the ground that the requested information was privileged under Tenn.Code Ann. § 63-6-219(e). The trial court declined to issue a protective order after determining that the information sought by the former employee was not privileged because it had been created in the regular course of the hospital's business and because the infection control director was the "original source" of the information. After granting the hospital an interlocutory appeal, a divided

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panel of the Court of Appeals affirmed the trial court. Powell v. Cmty. Health Sys., Inc., No. E2008-00535-COA-R9-CV, 2009 WL 17850 (Tenn.Ct.App. Jan. 2, 2009). We granted the hospital's Tenn. R.App. P. 11 application for permission to appeal. We have determined that records received or made in the ordinary course of a hospital's business apart from the operation of a peer review committee are not protected by the peer review privilege in Tenn.Code Ann. § 63-6-219. We have also determined that documents prepared by or at the request of a peer review committee exercising its peer review function and documents prepared by third parties as part of the work of a peer review committee performing its peer review function are privileged. Finally, we have determined that the hospital did not waive its right to invoke the privilege in Tenn. Code Ann. § 63-6-219(e) with regard to the work performed by its infection control director in the context of a peer review proceeding

I.¹

Kimberly Powell began working as an operating room secretary at the Cleveland Community Hospital² on April 19, 2004. Her duties included preparing the surgery schedule, billing patients for operating room services, filling out reports, and managing the payroll of certain other operating room employees.

One of the physicians with whom Ms. Powell worked was Dr. Rickey Hutcheson, an orthopaedic surgeon affiliated with TriState Orthopedics, Rehabilitation and Pain Management Center, P.C. ("TriState Orthopedics"). Ms. Powell scheduled Dr. Hutcheson's surgeries, answered his telephone calls, retrieved his surgical instruments, and picked up his lunch. She also compiled a monthly report of the surgeries performed by Dr. Hutcheson and other surgeons employed by TriState Orthopedics.

Ms. Powell asserts that Dr. Hutcheson began to make sexually suggestive comments to her soon after she began working at the hospital. She also asserts that Dr. Hutcheson touched her back, knee, and thigh and that Dr. Hutcheson grabbed her and attempted to kiss her on more than one occasion. In addition, Ms. Powell asserts that she complained about Dr. Hutcheson's conduct on at least three occasions to her immediate supervisor.

Ms. Powell was married in June 2004 and became pregnant soon thereafter. At some point,³ an incident occurred in a supply

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room near the recovery room on the surgical floor. Ms. Powell and Dr. Hutcheson give markedly different accounts of this incident. Ms. Powell asserts that Dr. Hutcheson called her into the supply room and that, once she was in the room, he closed the door, turned off the lights, grabbed her breast, masturbated, and ejaculated onto her arm and into her hair. Dr. Hutcheson asserts that he ejaculated on Ms. Powell in the course of consensual oral sex in the supply room

Ms. Powell resigned from the hospital in June 2005. On November 16, 2005, she filed suit in the Chancery Court for Bradley County against the hospital, its corporate owner,⁴ Dr. Hutcheson, and TriState Orthopedics. She sought to recover damages for violation of the Tennessee Human Rights Act Tenn.Code Ann. § 4-21-101 to -1001 (2005 & Supp.2009) and various torts, including assault and battery, constructive discharge, intentional or negligent infliction of emotional distress, interference with employment, and negligent hiring, supervision, and retention.

Ms. Powell claimed that she was particularly distraught about the supply room incident because she had been told by two hospital employees that Dr. Hutcheson had Hepatitis C and because she feared that either she or her unborn child could have contracted the illness from Dr. Hutcheson's bodily fluids. Even though tests performed by her obstetrician in September 2005 were negative for both Hepatitis B and Hepatitis C, Ms. Powell pursued aggressive discovery of the hospital's employees and medical staff regarding their knowledge of whether Dr. Hutcheson had Hepatitis.

In December 2006, Ms. Powell deposed Ms. Byler who served as the hospital's chief quality officer from February 2004 to May 2006. Ms. Byler testified that Sherri Sexton, the hospital's infection control director, reported to her. She also stated that the hospital became concerned about the increased rate of post-operative infections occurring during the period from July to October 2004.⁵ She testified that the hospital discussed the increased infection rate with the staff and also started an investigation into the source of the infections. The investigation included culturing "anything we could possibly think of," including sutures, equipment, the surgical team, patients, people in the recovery room, and three physicians, including Dr. Hutcheson. According to Ms. Byler, all of the tests of the physicians, including Dr. Hutcheson, were negative. Ms. Byler also testified that she was not aware that Dr. Hutcheson had any infectious diseases and that no one had ever voiced concerns to her about Dr. Hutcheson in that regard. Finally, Ms. Byler testified that the hospital's infection rate was lower than the national benchmark and that the increased infection rate in late 2004 was due to "the increase in patients and the patients' comorbidity."

In June 2007, Ms. Powell gave notice of her intention to depose Ms. Sexton. The hospital objected to this deposition and, in July 2007, moved for a protective order on the ground that the information sought from Ms. Sexton was protected by the

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privilege in Tenn.Code Ann. § 63-6-219(e). Ms. Powell opposed the hospital's motion on the ground that the records possessed by Ms. Sexton were not privileged because Ms. Sexton was the "original source" of the records and because Ms. Sexton prepared these records "as part of her regular job duties."⁶ The trial court permitted Ms. Powell to depose Ms. Sexton for the limited purpose of determining whether the privilege in Tenn.Code Ann. § 63-6-219(e) applied to her testimony.

Ms. Sexton testified that her duties as infection control director were closely linked to the work of the hospital's Quality Review Committee.⁷ She stated that when the hospital staff notified her that an infection had occurred, she would routinely conduct a limited investigation to determine whether the infection was hospital-related. This investigation included (1) examining the patient's chart, (2) possibly interviewing the patient, (3) reading the physician's notes, and (4) interviewing the staff. She also testified that her duties included educating the staff regarding the proper precautions and care for infections and to see to it that these precautions were being observed.

Ms. Sexton also testified that in addition to these limited investigations, she conducted specific tailored or targeted investigations at the request of or with the approval of the Quality Review Committee. The purpose of these investigations was to identify the source of an infection. Ms. Sexton stated that she conducted five to six of these investigations during her tenure and that the Quality Review Committee never refused her request to conduct one of these investigations. These more in-depth investigations included (1) reviewing charts, (2) interviewing patients and staff, (3) culturing equipment and staff members, and (4) tracking patients. The reports of these investigations were provided to the chairperson of the Quality Review Committee who distributed them to the members of the Committee either separately or included them with other reports submitted to the Committee.

Based on Ms. Sexton's deposition, Ms. Powell renewed her request to depose Ms. Sexton more broadly regarding her knowledge of any increased rate of post-operative nosocomial infections at the hospital and the hospital's awareness of any infectious diseases that Dr. Hutcheson may have had. Ms. Powell also requested the hospital and Ms. Sexton to produce the reports, tests, and other documentation that Ms....