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Statements made in a meeting between defendant hospital and decedent’s family were not privileged and did not fall under the QIC statute.

In Castillo v. Rex, No. E2022-00322-COA-R9-CV (Tenn. Ct App. Oct. 4, 2023), plaintiff filed an HCLA suit after the death of her husband. Her husband died shortly after he was discharged from defendant hospital’s emergency room. The hospital held a Quality Improvement Committee (“QIC”) proceeding to investigate the care decedent received. Sometime thereafter, representatives from defendant hospital met with members of decedent’s family at a CANDOR meeting, where “Plaintiff was advised that Decedent should not have been discharged because the CT scan revealed a bleed.”

During depositions in the HCLA case, defense counsel instructed a physician not to answer questions about statements made at the CANDOR meeting. When plaintiff requested documents used in preparation for the CANDOR meeting, defendant moved for a protective order “to prohibit further inquiry into the nature and contents of all statements made at the CANDOR meeting as direct or indirect discovery of the QIC proceeding itself.” The trial court denied the motion for a protective order, and on interlocutory appeal, that denial was affirmed.

Where surveillance videos of plaintiff were obtained in preparation for litigation and were thus work product, the Court of Appeals affirmed the trial court’s decision to require defendant to only produce those surveillance videos he intended to use at trial for impeachment purposes.

In Locke v. Aston, No. M2022-01820-COA-R9-CV (Tenn. Ct. App. Sept. 25, 2023), plaintiff filed an HCLA action against defendant doctor. After plaintiff nonsuited her first case and in anticipation of plaintiff re-filing, defendant’s counsel obtained surveillance videos of plaintiff. After plaintiff re-filed her case, a discovery dispute arose around the production of these surveillance videos. While the trial court originally ruled that the defendants should produce the videos without limitation, it subsequently amended its ruling and ultimately found that the surveillance videos were work product and that defendant was only required to produce those videos he intended to use at trial for impeachment purposes. On appeal, this ruling was affirmed.

Tenn. R. Civ. P. 26.02(3) governs when material that qualifies as work product is nonetheless discoverable by an opposing party. The Rule requires the person seeking discovery to show that they have a “substantial need of the materials in the preparation of the case and [are] unable without undue hardship to obtain the substantial equivalent of the materials by other means.” By ruling that only the videos that would be used for impeachment were discoverable, the trial court had agreed with defendant that plaintiff did not have a substantial need of surveillance video that corroborated her claim. Thus, substantial need was the primary issue in this appeal.

Check out Practical Procedure and Evidence for a post about a fight over the meaning of “double spacing” in the local rules for the United States District Court for the Western District of Tennessee.

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