Privilege Waived

The Tennessee Supreme Court has upheld the hospital quality improvement committee privilege but found it had been waived under the circumstances of the case

In many respects, a healthcare organization’s QIC privilege is similar to the corporate attorney-client privilege. The privilege belongs to the corporate client. Boyd, 88 S.W.3d at 213. But because a corporation cannot speak for itself, “the power to waive the corporate attorney-client privilege rests with the corporation’s management and is normally exercised by its officers and directors,” who must exercise the privilege consistent with their fiduciary duties and in the best interests of the corporation. Commodity Futures Trading Comm’n v. Weintraub, 471 U.S. 343, 348–49 (1985). Just as a healthcare organization’s management exercises the organization’s attorney-client privilege and holds the power to waive it, so too does a healthcare organization’s management exercise the organization’s QIC privilege and holds the power to waive it. See id.

In this case, Memorial is a healthcare organization as defined under Tennessee Code Annotated section 68-11-272(b)(1). It is undisputed that Memorial “formed or retained” the QIC to evaluate the care rendered to Mr. Castillo. Tenn. Code Ann. § 68-11-272(b)(4). Therefore, Memorial holds the privilege and may waive it. See id. § 68-11-272(c)(1). Mr. Houston, as Chief Operating Officer, had the authority to waive the privilege on behalf of Memorial. See Weintraub, 471 U.S. at 348. And he did so.

(Mike Frisch)