# FILED
Novemb er 25, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk DR. JOE BRY

ANT, ) ) Plaintiff/Appellant, ) Wilson Chancery ) No. 96332 VS. ) ) TENET, INC. (NATIONAL MEDICAL ) ENTERPR

ISES) d/b/a UNIVERSITY ) Appeal No. MEDICAL CENTER, ) 01A01-9703-CH-00132 ) Defendant/Appellee. )

IN THE COURT OF AP PEALS OF

TENNESSEE MIDDLE SECT ION AT NASHV ILLE APPEA L FROM C HANCERY C OURT OF WILSON COUNT Y

AT LEBANON,

TENNESSEE HONORABLE C . K. SMITH , CHANCELL OR Mr. Henry Clay

Barry 106 S. College Street Lebanon, Tennessee

37087 ATTORNEY FOR PLAI

NTIFF/APPEL

LANT Mr. William C. Moody 95 White Bridge Road Suit e 509, Caval ier Bld g. Nashville, Tennessee 37205-1427 ATTORNEY FOR DEFENDANT/APPEL LEE 

## D I S S E N T .

HENRY F. TODD PRESIDING

JUDGE, MIDDL

E SECTION-2-

DR. JOE BRY

ANT, ) ) Plaintiff/Appellant, ) Wilson Chancery ) No. 96332 VS. ) ) TENET, INC. (NATIONAL MEDICAL ) ENTERPR

ISES) d/b/a UNIVERSITY ) Appeal No. MEDICAL CENTER, ) 01A01-9703-CH-00132 ) Defendant/Appellee. )



## D I S S E N T

The only differ

ence of opinion in this Court is whether

the infor mation in th

e recor d is sufficient to justify the result reac hed by the majority . The original opin ion, which was not accepted by t he ma jo ri ty, is now filed as a dissent to demonstrate the necessity for a remand for further information.

The defenda

nt, Tenet , Inc., d/b/a University Medical Center, has appealed from a non jury judgment of the Trial Court regarding the pra ctice of medicine by

the plaintiff, Dr. Joe Bryant, in the def endant’ s hospital. The judgment of the

Trial Cour

t states: This case ha

ving co me on to be heard on September 12, 1996, upon the plaintiff’s complaint for injunctive relief, the Court h aving c onsidered the plea din gs, statement s of counsel, stipulations, exhibits and testimony of witnesses and it appea

ring to t h e Cou rt that a permanent injunction should be issued prohibiting the defendant from conducting any furth er disciplina

ry action a gainst t he plaint iff as a result of the ci rcums t ances giving rise to this suit until the defendant has providedthe plain

tiff with a written notice of the complaints being investigated ten d a ys prior to an Executive Committee meeting held to investigate such complain ts at which t

he plain tif f shall have an attorney present for consultation and advice only , it appearing to the Courtthat the defendant’s by -law s h ave deprived the plaintiff of his rights guaranteed

by Section VI

II , Article I, of the Tennessee Co nstitution, and the pl aintiff’ s ri ght to due proc ess under

the by -laws the

mselves.-3- IT IS HEREBY DECREED, that the defenda

nt is enjoined from conducting any further disciplinary

actions pursuant to its by-laws agains t the plain tiff as a result of the circumstances from whic

h this suit a

rises unti l such time as the defendant

has provided the plaintiff with written notice of the complaints it is investigating and the defendant schedules a ne w Executive Committee investigation more than ten days there after at which the plaintiff shall have the right to have an attorney

present for his own consultati on and advice. In thi s Court, the

defenda nt states t he issuesas follow s: 1. When a medica

l staff c ommittee o f a priva te hospital takes action, pursuant to its by law s, that limit s a s taff member’ s privileg es, is tha t staff me mber ent it led t o procedural due proc ess at ea ch step of the proceedings by Article 1, § 8 of the Constitution of the State of Tennessee? 2. If so, do the provisions of the def endant’s byl aws, for taking action wh ich limits the privileges of staff members, comply with Ar t icle 1, § 8 of the Constitution of the State of Tennessee? 3. Do the defendant’s by l aws guarantee the plaintiff procedural due process , as the te rm is unde

rstood in a legal context, at the Executive Committee Stage? 4. Is injunctive

relief a ppropria te at this stage of the proceeding or mus t t he plaint iff exhau st all of hi s administr ative re medies? The plain tiff state s the issue s as follow s: 1. Is a doctor en titled to “Due Process”, or fairne ss and justice, before his privileges or liberties may be adverse ly affected by the

Defendant or it’s Executive Committee, under the fact of this case? 2. Do these

by- laws, either upon their face or by their operation in this case, violate Due Proce ss, whi ch the same guarantee? The following facts are essentially undisputed:

Dr. Brya nt has practiced as a gener al surgeon at University

Medical Center for many ye ars. University Medical Center, ( hereaf ter, UMC) is a priva

te hospital owned by Tene t, Inc. Some time in ea

rly June 1996, he performed a PEG procedure on a coma tose patient who was-4-

on a morphine drip. During this procedure, he a pparently had a

dispute with nurses in the operating room ab out h is decision not to anesthetize the patient during the procedure. Following the procedure, one or m ore nurses filed a formal complaint with UMC’s administrator and reported the incident on Tenet’s patient abuse hotline.

At UMC there is a “chief of staff”, who is presuma bly selected by

the p hysician s practicing in the hospital. Whether he is also an official of the hospital itself doesnot appear from the record.

One or two weeks after the above descr ibed incident, the “chief of staff” discussed the incident with Dr. Bry ant and asked him to attend a meeting of “the executive

committee ” to review the incident. The record does not disclose whether the “ exec utive com mit tee” of the medical staff

is a part of the management of the hospital, itself. Dr. B ryant dec lined to attend stating “unless I had a written letter f rom someone, I wouldn’t be there .” Several day s later, Dr. Brya ntreceived written notice of the executive committee meeting
. He also received notice of the number of

the patie nt’s cha rt and wa s even given a co py o f the cha

rt which h

e showed to other physicians bef

ore the hearing. Apparently he was not given the incident report that had been fil ed by

one or mor

e of the o peratin g room nu

rses.

Prior to the mee

ting, Dr . Bry ant wrote

a l en gt hy, detailed letter to UMC’s administrator presenting his response to the nurses’ complaints and accusingthe nurse s of inef fective ness in the operating room. On the day of the e xecutive committee’s meeting, Dr. Bryant insisted that the committee permit his lawyer to a ttend the meeting. After the committee denied his reque st, Dr. Bryant refu sed to atten d the m eetin g. Th e r ec or d d oe s n ot in di ca te wh at , i f a ny, action was taken by the c ommittee after Dr. Bry ant’s departure.
Shortly thereafter, Dr. Bry

ant filed suit this aga inst Tenet seeking to enjoin the hospital “from proceeding

aga in st ... [h im ] u nde r th e sa id by-l aws .” It is not clear whether the by -laws-5-

were those of t

he me dical staff or

of the management of the hospital. He asser ted that the hospital’s by- laws per

mitted a “ sta

r-chamber type pr

oceeding” and that the by -laws “uncons titutionally

deprive the Plaintiff of his constitutional right to due process of the law.” At the hearing on the application for perma nent injunction, the trial court granted Dr. Brya nt’s oral motion to amend to add a breach of contract claim to h is compl aint. The trial court determinedthat the h ospital pr ocedure s did not vio late Dr. Bry ant’s fe deral c onstitution al righ ts butthat they did violate Dr. B ryant’sstate constitutional and co nt ra ct ua l r ig ht s. Ac co rd in gl y, the trial cou

rt e ntered an order enjoining UMC from conducting any furthe

r disciplinary proceedings against Dr. B ryant until it (1) provides him with written notice of the co mplaints agains thim, (2) commences a new executive committee inv estigat ion, and (3) allows Dr. Bry ant to have an attorney

“present for his own consultation and adv ice” du ring all stages of the procee dings.

The injunction granted by the Trial Court appears to be intended to prevent the hospital from curtailing or terminating Dr. B ryant’s use of the facilities of the hospital, but it does not appear to affect the actions of the medical staff or its committee who are not parties to thesuit.

The record

does not include a c omplete se t of the by

-laws of th e medical staff. The record does con tain a por

tio n of the by-law s of the staff governing “c orrective actions” and “hearing and appellate re

view procedures.”
T.C.A., Title 63, Chapter 6 is entitled, “Medicine and Surgery .” Part 1 of Chapter 6 creates a Board of Medical Examiners. Part 2 of Chapter 6 is entitled “General Provisions,” Section 63 -6-219 r

eads as f ollows: (a)(1) In c onjunctio n with the appli cable

policies of th e Health Care Quality Improvement Act of 1986 (42 U.S.C. §§ 11101-11152), it is the stated policy of Tennessee to encourage committees made up of Te nnessee’s licensed physicians to candidly, conscientiously , an d objectiv ely evaluat e and review their peers’ prof e ssional c onduct, competence, and ability to practice medicine. Tennessee further recog nizes th at confide

ntiality is essenti al both to-6- effectivefunction

ing of th esepeer review committee s and to continued improvements in the care and treatment of patients. (2) As incentive for the medi cal prof ession to undertake professional revi ew, inclu ding the review o f health care costs, peer review committees must be protected from liability for their good-f aith eff orts . To this end, peer

review committees should be granted certain immunities relating

to their actions u

ndertak en as par t of their responsi bil it y to review, discipline, and educate thepro fes si on. In instances of peer review committees examining the appropriateness of phy sicians’ fees, this immunity must also extend to restraint of trade c laims und er title 47, chapter 25 . (Emphas is supplied) (b) As used in this sec t ion, “medical review committee” or “ peer re vie w co mmittee ” means any committee of a state

or local profess i ona l association or so ci et y, inclu ding i mpai red physician peer review committee s, progra

ms, malpracticesupport g roups and their staff personnel, or a comm

ittee of a ny l icensed healt h c are institution, or the medical staff thereof , or any committee of a medical care foundation or hea lth maintenance organ iza tion, preferred provider org anization, individual practice association or similar entity, the function of which, or one (1) of the functions of which, is to evaluate an d improve the quality o f health care r endere d by

provid er s of health care s ervice to provide intervention, support, or rehabilitative refer

rals or services, or to determine that health care services rendered

were professionally

indicated, or were performed

in compliance with the ap plicable standard of care, or that

the professional health care servicesin the area and includes a committee functi oning a s a utilization review committee under the provisions of Public Law 89-97 (42 U.S.C. §§ 1395-1395pp) (Medicare law), or as a utilization and Review Improvement Act of 1982, Public Law 97-248, §§ 141-150, or a similar committee or a committee of

similar purpose, to evaluate or review the diagnosis or tre atment or the performance or rendition of medical or hospital services which are performed und erpublic medical programs of either state of federal design. (c)(1) All state and local professional associations and societies and other org an izations, in stitutions, foundati ons, entities and associated committees as identified in subsection (b), physicians, sur geons, registered n

urses , hospital admi nistrators and employees, members of boards of directors or

trustees of any

publicly supporte d or priva

tely supported hospital or other such provider of health care, any person acting as a st aff member of a medical review committee, any pe

rso n under a contract or other formal agr eement

with a medical review committee, any person w ho participates withor assists a medical review committee with respect to its functions , or any

other ind ividual a ppointed t

o any committee , as such t

erm is des cribed i

n subsect io n (b),-7- is immune from liability to any patient, indivi dual or organization for furnishing i nformation , data, reports or records to any such committee or for damages resulting fr om any decision, opinions, actions andpr oceedings rendered, entered or acted upon by

such com mittee s undertaken or performed

within the scope or

function of the duties of such com mittees, if made or taken in good faith and withou t malice and on the basis of fa cts reas onably known or reasonably

believed to exist. (Emphasis supplied) (2) Notwithstanding the p rovisio ns of subdivisio

n (c)(1), any person pr

oviding information, whether as a witness or other

wise , to a medical review committee regarding the competence or professional conduct of a physician is immune from liability to any person, unless such inf ormation is false and the person providing it had actua l kn ow le dg e o f s uc h f al si ty. (3) A member of a medical review committee, or person reporting infor

mation to a

medical r eview c omm i ttee, is presumedto have acted in good faith and without malice. Any person alleging lack of

good faith has the burden of proving bad faith and malice. (d) All information , interviews, incident or other reports , sta tements, memoranda or other data furnishe d to an y committee as defined in this section, and any fin dings , conclusions or recommendations re sul ting from the procee dings of such committee are declared to be privileged
. All such information, in any form whatsoever, so furnished to, or generated by , a medical review committee shall be privileged

communication subject to the laws p ertaining to the attor ney-clien t priv ilege
. The records and proceedings of any such committees are confidential and sha ll be used by such committee, and the members thereof only in the exercise of the proper

function s of the c ommittee, and shall notbe public records nor be available for c ourt subpoena or for discovery proc eedings. One (1) proper function of such committees shall include advoc ac y f or physicians bef

ore other medical peer review co mmit tees, peer review organ izations, health care entities, private and gove rnmental insurance carriers, national or local accreditation

bodies, and the state board of m edic al examiners of this or any other state. The discl osure of

confide ntial, privileged peer review committee

informat ion to such entities during advocacy , or as a report to the board

of medical examiners under § 63-6- 214(d), or to the affected phy sician under review does not c onstitute either a waiver o f confid

entiality or priv ilege
. N othing contained herein applies to records made in the regular course o f busines s by a hospital or other pr ovider of health care and information, documents or records otherwis e availab le from original s ources are not to be construed as immune from disc overy

or use i n any civi l proc eedin gs merely because they

were presented during proc eed ing s of such committee. (Emphasis supplied)-8- Article 1 § 8 of the

Constitution

of Tenne ssee pro vides: No ma n t o b e d is tu rb ed bu t b y l aw . - That no man shallbe taken or imprisoned, or disseized of his fre eh old, liberties or privileges, or outlawed , or exil ed, orin any manner destroy ed or dep rived of his life, l iberty or pr op er ty, but by the judgment of his peers or the law of the land. The right to work or to contract in regard to wor k is a property r

ight which is protected by the constitutional provision. Bryan v. International Alliance , 43 Tenn. App. 180, 306 S.W.2d 64 (1957).

The right to contract is subject to curtailment , limitation and destruction by the legislaturewhere such is done pursuant to “the law of the land.” Daughert

y v. State , 216 Tenn. 666, 393 S.W.2d 739, cert. denied, 384 U.S. 435, 86 S. Ct. 1601, 16 L. Ed. 2d 671 (1966).

The “due process” right afforded by the Tennessee Constitution includes the right to do
a lawful busine ss . Lyle v. Amalgamated Meat Cutters, etc. , 174 Tenn. 222, 124 S.W.2d 701 (1939).

Both

the words “liberty”

an d “property” include the rig ht to make contracts, and contracts are ent

itle d to the same protection as property
. State, ex rel., Hamby v. Cummings , 166 Tenn. 460, 63 S.W.2d 515 (1933).

However, th e right to contract is subjec t to legis lative co ntrol, and is subject to curtailm ent, limitation and destruction by “the la w of the land”. Daughert

y v. State , 216 Tenn. 666, 393 S.W.2d 739, cert. denied 384 U.S. 435, 865 Ct. 1601, 16 L. Ed.2d 671 (1966).
Statelicensing regulations require hospitals to enact by-laws containing “fair hearing procedu res” concer ning t he grant ing, suspension, and removal of medic al staff appointme

nts, reappointments, and/or delineation of privileges.” Lewisburg Community Hosp. v. Alfredson , Tenn. 1992, 805 S.W.2d 756, 759.-9- The portion of

the by -laws exhi

bited to thi s recor

d appea r to estab lish a three-tie

r processthat is intended to incorporate the peer review proc ess endorsed by the Gene ral Assembly in Tenn. Code Ann. § 63-6-21 9 (1997). The process is triggered by the filing of a “reque st for corrective action.” The first step of the process is an informal “investigation” by the executive

committee . The by-laws sta te speci ficall y th at t his step is not a “hearing” and permit the execu

tive committee totake a broad range of actions. The by-laws are silent about the role of la

wy ers during the f

irst phase ; howeve

r, it i s uncont radicted that lawy ers are not permitte d to be pre sent at a ny o f the fir st stage

meeting s during

the inves tigative

process .
Any person dissatisfied with the executive committee’s recommendations may appeal. The second stage of

the proceeding is much more formal than the f irst and involves a hearing before a medical review committee specific ally

chosen to hear the appeal. The by-law s require
a written notice. They

also require the executive committee to provide the phy sici an wit h “notice of the acts or omissions with which the affected practitioner is char ged or a list of the chart numbers under question, if any , or the reasons for the action or recommenda tion.” The parties a re perm itted to use

“repre sentative s,” who ma y be lawyers.

The hea ring pr

ocedure is quite fo

rmal. The

hospital mu st prese

nt its case

fir st, th e physician second, and both p arties are permitte d to prese nt rebutta l proof. I f the phy sician is the appealing party , he or she must prove by clear and convincing evidence that the action or the recommendation of the executiveco mm it te e w as ar bi tr ar y, unreasonable, or not supported by substantial evidence
.

The third and final step of the process is an appeal to the governing body

of the hospit

al. This review is based on the record of the prior proc eedings, and the grounds for

review include (1) the failure

of the ea rlier pr oceedings to com

ply with the by

-laws, (2) the failure to afford due processor a f ai r h ea ri ng , ( 3) th at th e r ec om me nd at io n w as ar bi tr ar y, unreasonable, or capric ious, (4) that the medical review committee’s decision was contrary

to the weight of the-10-

evidence, or (5) that any

by-law relied on by the medic al review committee lacked substantive
ra ti on al it y.

Dr. Brya nt’s first issue seek s a ruling u pon the ri ght of a

phy sician to d

ue proce ss in procee dings by f

ellow phy sicians in

respec t to compla

ints made a

gainst him. The record is not sufficie ntly definitive to permit a specific ruling in this respect. Three elements must be estab lish ed to e nable such a rulin g.
First, does there exist a recognized group of doctors who have agreed together upon a “peer r eview” procedure to improve the quality of their practice? If so, the nature of such proceduremust

conform with the agreement formed by the doctors or accepted by a new arrival upon jo in in g th e gr oup . If this fact exists, and the results reached in the peer review procedure
are not final or binding in respect to use of hospital faci lities, the n it would appear that the affected doctor has contractually

waived any

constitutional due process in proceedings before the peer re

view comm

ittee. I f, howev er, the r

esults of the pe er revi ew proc edure a re enfo rceabl e by exclusion f

rom use of

hospital f

acilitie s, the doctoris entitled to “due process” in the procedure.

A definitive ruling upon the foregoing must awa it an evidentiary r

ecord which

discloses the deta ils of the c ontrolling

by- laws or a

greem ents.
Appella n t’s second issue seeks a ruling reg arding the constitutionality of “ the defendant’s by-laws.” The record does not

establish that the portion of the “by-law s” included in the record is in fact a portion of the b y-laws of the hospital, ra ther than of the group of doctors who practice in the hospital. If it should be shown that the hospital has a set of by- laws
or rules, or is bound to enforce the decisions of the medica l staff as to exclusion of a doctor, then the hospit

al might b e enjoined from en forcem ent of a d ecis i on the staff reached without-11-

due process . On this premise, it was not e rror to enjoin the

hospital f rom enfo rcing t he resul ts of a proce dure unti l the cons titutionality of the procedure has been examined and determined.

If the hospital is not bound by the staff procedure, but conducts a de novo investigation and determination of the right of a doctor to use its facilities, then it may appear t hat the issuance of the permanent injunction was not in order.
Appellant’s third i ssu e reque sts a ruling as to w hether p rocedur al due pr ocess is guaranteed

by “defe ndant’s by-laws.”

(Defendant is the hospital.) The record does not di sclose the hospital’s by-laws. Thus, a definitive ruling on the defenda nt’s third issue should await a full discl osure of

its by -laws, r

ules or a dopted pr ocedure s.
App ella nt’s fourth, a

nd last issu e sugg ests that d efenda nt be req uired to e xhaust his administrative rem edi es b efo re s eek in g in ju nct iv e re li ef. In view of the constitutional question in volved, the seriousness of the possible damage to the affected physician, a nd the possibl e waste of time and effort in invalid procedure, a pr ecautionary

injunction was permissible.

Dr. Brya nt’s two issues have been explored above, but a definitive ruling t hereon m ust await the development of a moreinformative record. T.C.A. § 27-3-128 provides for remand where r equired to do compl ete justic e. Such a remand i s necess ary

in the pre sent appe al.

Fo r the reasons stated, the judgment of the Trial Court should be modified to provide t hat the “per manent” injunction

shall be e

ffectiv e until fur

ther ord er of court, afte

r furth e r hearin g. The cause should be remanded to the Trial Court for fur ther p roceed ings in confor mity with this opinion. 

### RESPECTFULLY SUBMITTED.

___________________________________ HENRY F. TODD PRESIDING

JUDGE, MIDDL

E SECTION-12-