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Tennessee Patient Safety Act Restores & Expands Peer Review Protections

Jeff Miller

Last year, Governor Haslam signed into law the Tennessee Patient Safety & Quality Improvement Act of 2011 (the PSA Act).  The legislation was in direct response to the Tennessee Supreme Court’s 2010 decision in Lee Medical, Inc. v. Beecher where the court held that the then Tennessee Peer Review Law of 1967 (the Peer Review Law) applied only to those activities of a health care facility in reviewing the professional conduct of a physician and not to health care providers themselves.  To many Tennessee health care providers, this decision stripped them of critical protections afforded their quality assurance and improvement activities.

Most states’ public policies favor a health care provider’s ability to candidly review its operations and outcomes in order to improve the safety and quality of its services. This means the provider needs certain assurances and protections that the materials they review and generate are confidential and cannot be used against them through legal process or otherwise.

The PSA Act restores the protections needed in order to assure the efficient and honest assessment of operations for the purpose of improving all aspects of the health care system.   Interestingly, the PSA Act was codified in two places in the Tennessee Code - in those sections of the statute dealing with Health Related Boards (e.g., health care professionals such as physicians) and Health Facilities and Resources (e.g., institutions such as hospitals).

The two protections afforded health care providers in the PSA Act are privilege from discovery and immunity from any liability.  In clear language, both the professional and institutional promulgations of the PSA Act state that:

Records of a [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.

Each prong of the PSA Act immunizes providers as well:

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 on the basis of facts reasonably known or reasonably believed to exist.

Thus, individuals affiliated with a “healthcare provider,” and the “healthcare providers” themselves (professionals such as physicians licensed under Title 63, and institutions such as hospitals and nursing home regulated by Title 68) are immune under the new PSA.  The former Peer Review Law only immunized providers from damages; so, theoretically peer reviewed physicians could still maintain an action for injunctive relief.  The PSA Act immunizes actors not only from damages, but “other relief” as well – taking injunctive relief off the table.

The first requirement to obtain the protections of the PSA Act is the formation of a “quality improvement committee” (QIC) which is:
•    A committee formed or retained by a health care organization;
•    An activity of a health care organization; or
•    One or more individuals employed by a health care organization performing certain functions, the purposes of which (or one of the purposes of which) is to “evaluate the safety, quality, processes, costs, appropriateness or necessity of healthcare services.”

The activities of the QIC that are considered protected are likewise broad and include:
•    Evaluation and improvement of the quality of health care services rendered;
•    Analysis of whether health services were performed in compliance with the applicable standards of care;
•    Analyses related to cost;
•    Evaluation of the qualifications, credentials, competence and performance of health care providers;
•    Discipline of health care providers;
•    Reduction of morbidity or mortality;
•    Research;
•    Utilization review activities; and
•    Risk management activities.

The subtle differences between the professional and institutional prongs of the PSA Act reveal the breadth of the legislative action, specifically its definition of what qualifies as a “healthcare organization.”  Qualifying institutions are:
•    Health care facilities licensed or regulated by the state;
•    Entities used by a health care facility to deliver ancillary or allied health services;
•    Any entity owning, owned by or affiliated with a health care facility licensed by the state;
•    Entities that contracts with a health care organization to perform any of the functions of a QI committee;
•    Federal Patient Safety Organizations;
•    Professional assistance programs, including drug or alcohol impairment intervention and assistance;
•    Professional health care foundations;
•    HMOs, PPOs, ACOs or hospital and medical service corporations; or
•    University medical schools or health science centers.

For physicians and other professionals a “healthcare organization” is, remarkably, even more broadly defined as a:
•    State or local health professional associations or societies;
•    Professional assistance programs providing alcohol and drug impairment intervention and assistance;
•    Provider malpractice support groups;
•    Group practices engaged in provision of healthcare services;
•    Entities engaged in the provision of healthcare provider services or healthcare provider staffing to facilities, including hospitals;
•    Professional healthcare foundations;
•    Individual practice associations;
•    HMOs, PPOs, hospital and medical service corporations or the newly created federal Accountable Care Organizations;
•    Entities that contract with a QIC;
•    Federal Patient Safety Organizations; or
•    University medical schools or health science centers.

In order to take advantage of the protections offered, health care providers should
1.    Formalize the method by which operations and outcomes are reviewed;
2.    Review and, if necessary, revise the structure of their QA/QI committee;
3.    Review/revise procedures for reviewing matters within the committee;
4.    Make sure that materials reviewed/generated by the committee are not disseminated outside the committee;
5.    Consider marking documents and materials reviewed by the QIC as “QIC documents.”
6.    Be aware that the law maintains the long-recognized exception to the protections; that is, that 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 immune from discovery.

Any questions about this article can be directed to Jeff Miller.

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