Day on Torts
Statements made that were related to a QIC meeting on a patient’s care were subject to the QIC privilege, but the hospital administrator waived that privilege to the extent he disclosed the privileged information to the patient’s family.
In Castillo v. Rex, No. E2022-00322-SC-R11-CV (Tenn. May 9, 2025), the plaintiff filed an HCLA suit after her husband died shortly after being discharged from defendant hospital. Following the husband’s death, the hospital held a quality improvement committee (“QIC”) meeting to discuss his care. The hospital then invited the plaintiff wife and her parents to what the hospital labeled a CANDOR meeting. (Note: The Supreme Court specifically pointed out that Tennessee has not adopted a statute creating CANDOR meetings, so this meeting had no additional statutory protections, but the Court referred to the meeting in this way for simplicity). During this meeting, the plaintiff did not sign any documents and was not told that any information being shared was privileged. The hospital told the plaintiff that the CT scan performed on her husband showed an internal bleed and that he should not have been discharged.
After this suit was filed, counsel for the hospital deposed the plaintiff. Defense counsel asked the plaintiff about the CANDOR meeting and made “detailed inquiries into the statements” made therein. When the plaintiff’s attorney deposed hospital representatives, however, defense counsel instructed the witnesses not to answer questions about what was said in the CANDOR meeting because it was subject to the QIC privilege. The defense also asserted the QIC privilege in response to some written discovery requests.
The trial court ruled that statements made in the CANDOR meeting were not subject to the QIC privilege, and the Court of Appeals affirmed. In this opinion, the Supreme Court ruled that statements related to the QIC meeting were privileged, but that the privilege was waived to the extent that the privileged information was disclosed to the plaintiff.
The Supreme Court began its analysis by reviewing the history of the QIC privilege, noting that the current statute was adopted in 2011 and allows healthcare organizations to “create a quality improvement committee or ‘QIC’ to evaluate the quality of care provided by that healthcare organization.” (citing Tenn. Code Ann. § 68-11-272(b)(4)). The statute further provides that “statements by a healthcare organization’s officers, directors [and other representatives]…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.” (internal citation omitted).
The Supreme Court looked to the language of the statute to determine whether the QIC privilege applied to statements made at the CANDOR meeting. The Court wrote that “[t]he record unequivocally establishes that any discussion during the CANDOR meeting of the quality or appropriateness of the healthcare rendered or not rendered to Mr. Castillo was based on the QIC reviews.” Because the statements “arose from the QIC,” they were therefore privileged. (internal citations omitted). The Court rejected the hospital’s arguments that CANDOR meetings were held to different standards, and that the persons in the CANDOR meeting were not present at the QIC review so the privilege could not apply.
Having ruled that the QIC privilege applied, the Court next considered whether that privilege could be waived. Noting that “under general common-law principles of waiver…the holder of a right or privilege…may waive the right,” the Court stated that the holder of the QIC privilege is the healthcare organization. The Court specifically overruled prior precedent to the extent it held otherwise, and to the extent the QIC privilege had been ruled unwaivable. Instead, the Supreme Court reasoned that, like a corporate attorney-client privilege, “a healthcare organization’s management exercise the organization’s QIC privilege and holds the power to waive it.” (internal citation omitted).
The hospital asserted that finding the QIC privilege waivable was contrary to public policy, but the Supreme Court disagreed. The Court noted that many statutory privileges do not contain an express waiver provision, and that the “potential for abuse” is a concern if the privilege cannot be waived. The Court pointed out that it was “unable to find any other nonwaivable privilege under Tennessee law.” It further rejected the assertion that allowing waiver would “cause a chilling effect on QIC” proceedings, stating that it “trust[ed] the healthcare organization recognizes the broad privilege it possesses and is able to balance the interests at stake to make waiver decisions appropriately.”
Turning to the facts of this case, the Court ruled:
In this case, the chief operating officer of a healthcare organization voluntarily disclosed privileged information to a patient’s family. Once Memorial disclosed privileged and confidential information to Mrs. Castillo, that information is no longer privileged or confidential. The genie is out of the bottle. In any other context, the explicit and intentional disclosure of confidential information by the privilege holder would constitute waiver. We see no compelling reason to treat this privilege any differently.
(internal citations omitted). The Court found that the scope of the waiver was “limited to what was discussed at the meeting” and did not “extend to records or other sources on which the statements were based.”
The QIC privilege was deemed waived as to “any statements made to Mrs. Castillo relating to the QIC process and/or conclusions [that] were voluntarily disclosed[.]”
The Tennessee Supreme Court came to the correct decision in this case. This is an important opinion in healthcare law, as it definitively establishes that the QIC privilege can be waived.
This opinion was released eight months after oral arguments.