Smith v. Midtown Center for Health and Rehabilitation, LLC

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TENNESSEE

WESTERN DIVISION

CYNTHIA SMITH, as Next of Kin of )

Roberta Johnson, deceased, and on behalf of )

the beneficiaries of Roberta Johnson, )

)

Plaintiff, ) No. 2:20-cv-02104-TLP-atc

)

) JURY DEMAND

v. )

)

MIDTOWN CENTER FOR HEATLH AND )

REHABILITATION, LLC d/b/a Midtown )

Center for Health and Rehabilitation, and MC )

CONSULTING, LLC, )

)

Defendants. )

ORDER GRANTING IN PART AND DENYING IN PART MOTION TO COMPEL

Plaintiff moved to compel discovery under Rule 37 of the Federal Rules of Civil

Procedure. (ECF No. 155.) Defendants responded. (ECF No. 162.) After a March 2022

hearing on the motion, the Court denied a significant portion of Plaintiff’s discovery requests.

(ECF Nos. 169 & 170.) But the Court directed Defendants to produce certain items en camera,

because the Court could not determine whether they fell under Tennessee’s healthcare quality

assurance privilege, Tenn. Code Ann. § 68-11-272. (Id. at PageID 2658.) The Court directed

Defendants to produce en camera emails to administrator Poston (items 41–44, 67–71),

complaint/grievance reports (items 60 & 79), and State of Tennessee incident reports (items 46

& 72). And Defendants have done so. (ECF No. 171.) For the reasons below, the Court

GRANTS IN PART and DENIES IN PART Plaintiff’s motion to compel as to these remaining

discovery requests.

I. The Privilege

As the Court observed in the order denying in part Plaintiff’s motion to compel, “[t]he

parties dispute whether Tenn. Code Ann. (“T.C.A.”) § 68-11-272 applies to the items on

Defendants’ privilege log.” (ECF No. 170 at PageID 2653.) The lone remaining question is the

applicability of the healthcare quality assurance privilege to the emails to administrator Poston

(items 41–44, 67–71), complaint/grievance reports (items 60 & 79), and State of Tennessee

incident reports (items 46 & 72).

Earlier the Court explained the parameters of the healthcare quality assurance privilege

under Tennessee law:

For starters, “T.C.A. § 68-11-272(c)(1) creates a state law privilege for

Quality Improvement Committees (‘QICs’) created by healthcare providers to,

among other things, make sure healthcare providers are in compliance with state

and federal law.” Allgood v. Baptist Mem’l Med. Grp., Inc., No. 19-2323-SHM-

tmp, 2020 WL 86455, at *2 (W.D. Tenn. Jan. 7, 2020), aff’d, 2020 WL 821381

(W.D. Tenn. Feb. 19, 2020). This privilege “protects the ‘records’ of QICs, as well

as statements made to QICs during an investigation.” Id. (citing T.C.A. § 68-11-

272(c)(1)).

The statute defines “records” to mean “records of interviews and all reports,

incident reports, statements, minutes, memoranda, charts, statistics, evaluations,

critiques, test results, corrective actions, disciplinary actions, and any and all other

documentation generated by or in connection with activities of a QIC . . . .” Tenn.

Code Ann. § 68-11-272(b)(5). And the statute provides a long list of activities a

QIC may engage in, including: (1) “Evaluation and improvement of the quality of

healthcare services rendered”; (2) “Determination that health services rendered

were professionally indicated or were performed in compliance with the applicable

standards of care”; (3) “Evaluation of the qualifications, credentials, competence

and performance of healthcare providers or actions upon matters relating to the

discipline of any individual healthcare provider”; (4) “Reduction of morbidity or

mortality”; (5) “Evaluation of whether facilities are being properly utilized”; (6)

“Evaluation of the quantity, quality and timeliness of healthcare services rendered

to patients”; (7) “Evaluation, review or improvement of methods, procedures or

treatments being utilized”; and (8) “Activities to determine the healthcare

organization’s compliance with state or federal regulations.” 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.” Pinkard v. HCA Health Servs. of

Tenn., Inc., 545 S.W.3d 443, 452 (Tenn. Ct. App. 2017) (citing Tenn. Code Ann. §

68-11-272(a)). And “[t]o 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.” Id. (citing Tenn. Code Ann. § 68-11-272(c)(1)). “The

purpose of this privilege is to allow healthcare organizations to freely examine how

they can improve their services without fear that candid statements will be used

against them.” Allgood, 2020 WL 86455, at *2 (citing Pinkard, 545 S.W.3d at

452). As the Court in Pinkard recognized, this privilege “protects an overriding

interest in patient safety, and it achieves that objective by encouraging candor

within a hospital’s quality improvement process.” Pinkard, 545 S.W.3d at 454

(citing Tenn. Code Ann. § 68-11-272(a)).

(ECF No. 70 at PageID 2654–55.)

The Court also examined the scope of the “original source” exception to the healthcare

quality assurance privilege:

[T]he statute contains an “original source” exception, under which “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.” [Pinkard, 545

S.W.3d] at 452 (citing Tenn. Code Ann. § 68-11-272(c)(2)). What is more,

“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. at 453 (citing Tenn. Code Ann. § 68-11-272(c)(2)).

And so the statute “does not prohibit [a litigant] from obtaining evidence that goes

to the heart of the case from the original sources.” Id. In sum, “under Tenn. Code

Ann. § 68-11-272(c)(2), documents not produced specifically for use by a QIC, and

[which] 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.” Id. at 448.

(ECF No. 70 at PageID 2655–56.) The Court also noted that “Pinkard establishes two

prerequisites for the original source exception to apply.” (Id. at PageID 2657.) First, the

exception applies only to “documents not produced specifically for use by a QIC.” Pinkard, 545

S.W.3d at 448 (citing Tenn. Code Ann. § 68-11-272(c)(2)). Second, the exception applies only

if those documents “are otherwise available from original sources.” Id. (citing Tenn. Code Ann.

§ 68-11-272(c)(2)).

II. Plaintiff’s Remaining Discovery Requests

As the Court’s earlier order shows, the privilege analysis contains two steps. First, the

Court must determine whether the documents fall within the scope of Tenn. Code Ann. § 68-11-

272(c)(1). If not, the documents are not protected by the quality assurance privilege. But if the

documents do fall within the scope of that privilege, the Court must then determine whether the

original source exception in Tenn. Code Ann. § 68-11-272(c)(2) applies. (ECF No. 170 at

PageID 2657–58.)

The Court determined that the emails to Poston (items 41–44, 67–71) fall within the

scope of Tenn. Code Ann. § 68-11-272(c)(1). (Id. at PageID 2657.) But the Court could not

determine whether the original source exception applied. (Id. at PageID 2658.) The Court also

found that “the record leaves unclear whether the complaint/grievance reports (items 60 & 79)

and the State of Tennessee incident reports (items 46 & 72) fall under the QIC privilege in Tenn.

Code Ann. § 68-11-272(c)(1) or the original source exception in Tenn. Code Ann. § 68-11-

272(c)(2).” (Id.) Defendants produced these items en camera, and the Court has reviewed them.

A. Emails to Administrator Poston

Having reviewed the emails, the Court finds that the “original source” exception applies.

The emails qualify as “documents not produced specifically for use by a QIC.” See Pinkard, 545

S.W.3d at 448 (citing Tenn. Code Ann. § 68-11-272(c)(2)). And this Court observed before that

“[o]stensibly, the sender of the emails could make the emails available.” (ECF No. 170 at

PageID 2658.) And so the emails are “available from original sources.” See Pinkard, 545

S.W.3d at 448. Because the “original source” exception applies to the emails to Poston, the

Court GRANTS Plaintiff’s discovery request for the emails (items 41–44, 67–71).1

B. Complaint/Grievance Reports and State of Tennessee Incident Reports

As for the complaint/grievance reports (items 60 & 79) and the State of Tennessee

incident reports (items 46 & 72), the Court finds that these documents fall within the scope of

Tenn. Code Ann. § 68-11-272(c)(1). As this Court noted, “the statute defines ‘records’ broadly,

including ‘records of interviews and all reports, incident reports, statements,’ and ‘any and all

other documentation generated by or in connection with activities of a QIC.’” (ECF No. 170 at

PageID 2657 (quoting Tenn. Code Ann. § 68-11-272(b)(5)). Indeed, the Pinkard court referred

to this broad QIC privilege as “problematic.” 545 S.W.3d at 453. But “[a]lthough the [QIC]

privilege is problematic, it does not prohibit [a litigant] from obtaining evidence that goes to the

heart of the case from the original sources.” Id. And “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. (citing Tenn. Code Ann. § 68-11-

272(c)(2)).

Because of the statute’s broad definition of “records,” the Court finds that the

1If Defendants claim work-product privilege, they have not carried their burden of showing that

the emails were prepared “in anticipation of litigation.” United States v. Roxworthy, 457 F.3d

590, 593 (6th Cir. 2006) (“A party asserting the work product privilege bears the burden of

establishing that the documents he or she seeks to protect were prepared ‘in anticipation of

litigation.’”). The work-product privilege, “as set forth in Federal Rule of Civil Procedure

26(b)(3), protects from discovery documents and tangible things prepared in anticipation of

litigation by or for a party or by or for that party’s representative.” Id. But “documents prepared

in the ordinary course of business, or pursuant to public requirements unrelated to litigation, or

for other nonlitigation purposes, are not covered by the work product privilege.” Id. (citations

omitted). And so “a document will not be protected if it would have been prepared in

substantially the same manner irrespective of the anticipated litigation.” Id. at 593–94. The

emails here were prepared by a State of Tennessee employee, they relate to Tennessee reporting

requirements, and they would have been prepared in the same manner regardless of this

litigation. The work-product privilege does not apply to the emails.

complaint/grievance reports and State of Tennessee incident reports fall within the scope of

Tenn. Code Ann. § 68-11-272(c)(1). But Plaintiff asserts that Defendants created these

documents because of their “legal and regulatory duties to thoroughly investigate all incidents of

abuse and neglect independent of any direction of counsel or the QIC process.” (ECF No. 155 at

PageID 2346, 2353 (citing 42 C.F.R. § 483.12(c)(2) & (4); Tenn. Comp. R. & Regs. 1200-08-06-

.11(2)). In essence, Plaintiff asserts that Defendants have a duty under Tennessee law to report

incidents of abuse to the Department of Health under Tenn. Code. Ann. § 68-11-211.2 (Id. at

PageID 2346, 2353.) And so Plaintiff contends that because Defendants did not produce the

reports “specifically” for use by a QIC, they are not protected under the QIC privilege. (Id. at

PageID 2347 (citing Pinkard, 545 S.W.3d at 445–46).)

Plaintiff misunderstands the Pinkard court’s articulation of the QIC privilege. That a

document was “produced specifically for use by a QIC” does not determine whether that

document falls within the scope of Tenn. Code Ann. § 68-11-272(c)(1). See Pinkard, 545

S.W.3d at 448, 452. Rather, whether a document was “produced specifically for use by a QIC”

is one of the prerequisites for the “original source” exception to apply. See id. And so Plaintiff’s

argument does not address whether the incident reports fall within the scope of the privilege—

Plaintiff argues only that the original source exception should apply.

Plaintiff later argues that Defendants created the State of Tennessee incident reports

“independently from any QIC purpose or evaluation of healthcare services.” (ECF No. 155 at

2 Under 42 C.F.R. § 483.12, long term care facilities faced with “allegations of abuse, neglect,

exploitation, or mistreatment,” must “[r]eport the results of all investigations to the administrator

or his or her designated representative and to other officials in accordance with State law . . . .”

42 C.F.R. § 483.12(c)(4). And the Tennessee regulation Plaintiff cites requires nursing homes to

“report all incidents of abuse, neglect, and misappropriation to the [Tennessee] Department of

Health in accordance with T.C.A. § 68-11-211.” Tenn. Comp. R. & Regs. 1200-08-06-.11(2).

PageID 2353 (discussing 42 C.F.R. § 483.12(c)(2); Tenn. Comp. R. & Regs. 1200-08-06-

.11(2)).) But this argument holds no water. As noted above, 42 C.F.R. § 483.12 requires long

term care facilities to report the results of investigations into allegations of abuse and

mistreatment “in accordance with State law.” 42 C.F.R. § 483.12(c)(4). And the Tennessee

regulation Plaintiff cites requires nursing homes to report all incidents of abuse to the Tennessee

Department of Health “in accordance with T.C.A. § 68-11-211.” Tenn. Comp. R. & Regs. 1200-

08-06-.11(2). In turn, Tenn. Code. Ann. § 68-11-211 governs “reports of abuse, neglect or

misappropriation” by health facilities.3

The Tennessee healthcare quality assurance statute permits many QIC functions. Tenn.

Code Ann. § 68-11-272(b)(4). These functions include the evaluation, supervision and discipline

of healthcare providers. Tenn. Code Ann. § 68-11-272(b)(4)(D), (I), (J). And the statute lists

“[r]eduction of morbidity or mortality,” and “[a]ctivities to determine the healthcare

organization's compliance with state or federal regulations.” Tenn. Code Ann. § 68-11-

272(b)(4)(E), (O). The statute also includes “[t]he 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.” Tenn. Code Ann. § 68-11-272(b)(4)(N). And so

the State of Tennessee incident reports correspond to valid QIC functions. And the reports are

not “otherwise available from original sources.” See Pinkard, 545 S.W.3d at 448; see also Tenn.

3 The Court questions Plaintiff’s reliance on Tenn. Code. Ann. § 68-11-211 to obtain the State of

Tennessee incident reports. True enough, as stated above, this Tennessee statute governs health

facilities’ duty to report “abuse, neglect or misappropriation.” Tenn. Code. Ann. § 68-11-211.

But this statute also provides that such reports are confidential and undiscoverable. See Tenn.

Code. Ann. § 68-11-211(c) (“An incident report or any amended incident report obtained by the

department pursuant to this section shall be confidential and not subject to discovery, subpoena

or legal compulsion for release to any person or entity, nor shall the report be admissible in any

civil or administrative proceeding, other than a disciplinary proceeding by the department or the

appropriate regulatory board.”).

Code. Ann. § 68-11-211(c). As a result, the Court finds that the QIC privilege applies to the

State of Tennessee incident reports, and Plaintiff is not entitled to production of these reports

from Defendants. The Court therefore DENIES Plaintiff’s discovery request for the incident

reports (items 46 & 72).

As for the complaint/grievance reports, Plaintiff argues that “[t]hey are ‘original source’

information created by the family and/or residents who are not part of the facility’s QIC or who

are working at the behest of Defense Counsel.” (ECF No. 155 at PageID 2353.) Plaintiff’s

argument misses the mark. Just because information in a document is available from an original

source does not also mean that the document itself is available from that source. As a result, the

availability of the information in a document does not always speak to whether the document

itself falls within the “original source” exception. See Pinkard, 545 S.W.3d at 448, 452–53.

If the information in the document is available from an original source, a litigant can seek

that information from the original source. See id. at 452–53. Indeed, “persons who provided

testimony or information to [a QIC] or as part of a QIC [investigation] are not exempt from

discovery and are not prohibited from testifying as to their knowledge of facts or their opinions.”

Id. at 453 (citing Tenn. Code Ann. § 68-11-272(c)(2)). But for a document to fall within the

“original source” exception, the document itself must be “available from an original source.”

See id.; see also Tenn. Code Ann. § 68-11-272(c)(2). Nevertheless, as stated above, the QIC

privilege “does not prohibit [a litigant] from obtaining evidence that goes to the heart of the case

from the original sources.” Pinkard, 545 S.W.3d at 453.

Because the complaint/grievance reports here are not “otherwise available from original

sources,” they do not fall within the “original source” exception. See id. at 448, 452; see also

Tenn. Code Ann. § 68-11-272(c)(2). As a result, the Court finds that Plaintiff is not entitled to

production of these reports from Defendants. And the Court therefore DENIES Plaintiff’s

discovery request for the complaint/grievance reports (items 60 & 79).

CONCLUSION

For the reasons above, the Court GRANTS IN PART Plaintiff’s motion to compel and

therefore DIRECTS Defendants to produce the emails to administrator Poston (items 41–44,

67–71) within seven days from the entry of this order.

SO ORDERED, this 13th day of April, 2022.

s/Thomas L. Parker

THOMAS L. PARKER

UNITED STATES DISTRICT JUDGE