Most Tennessee hospitals have robust internal clinical review processes in place that are applicable to both physicians and non-physician providers. These processes vary in terms of administrative structure but share a common purpose: constant reexamination of clinical processes and, where appropriate, implementation of changes to address unexpected patient outcomes.
In 2011, the Tennessee Legislature replaced a decades-old statute applicable to "peer review" proceedings involving physicians with a comprehensive statute addressing these clinical review "activities" of hospitals for all health care organizations and providers in a new statute called the Patient Safety and Quality Improvement Act of 2011, codified at Tenn. Code. Ann. § 68-11-272. The broad definitions of what kinds of actions would fall under strong confidentiality and privilege protections of the statute were considered to be "unwaivable" in the only Tennessee appellate case to interpret the statute on this question.
In Castillo v. Rex, 715 S.W.3d 321 (Tenn. 2025), the Tennessee Supreme Court, for the first time, addressed whether Tennessee's Quality Improvement Committee (QIC) privilege under Tenn. Code Ann. § 68-11-272 protected statements made after the death of a patient following an emergency room assessment and discharge during a post-incident meeting between hospital representatives and the widow of the deceased patient. The widow, Mrs. Castillo, was not informed of the purpose of the meeting, was not asked to sign any documents clarifying the purpose or scope of discussions at the meeting, and was not told the information conveyed was confidential or privileged.
The parties disagreed on whether the meeting itself and discussions held during it were covered by the QIC privilege and, if so, whether the privilege was indeed "unwaivable."
The Tennessee Supreme Court's Ruling and Reasoning
The Court held that the privilege did apply to the statements made during the meeting because they related to the activities of the QIC. But on the critical second issue, the Court unanimously held that the privilege can be, and in this case was, waived.
The health care organization, not the QIC process itself, holds the privilege. Therefore, the health care organization may waive it through management-level representatives, typically the organization's officers and directors. The Court relied heavily on general waiver principles: privileges ordinarily belong to an identifiable holder; voluntarily disclosing privileged information to outsiders waives confidentiality; and Tennessee law favors discovery of relevant evidence.
The Court was particularly concerned about allowing health care entities to use privileged information "offensively as a sword" by voluntarily sharing potentially favorable information (to the holder of the privilege) while later blocking discovery concerning more information about the investigation. Once hospital leadership voluntarily disclosed QIC-derived conclusions to Mrs. Castillo without first obtaining assurances from the patient's family representative that the meeting and its content were confidential, "[t]he genie is out of the bottle," and that information was no longer privileged or confidential.
Importantly, the Court limited the waiver narrowly to statements actually made during the meeting. Underlying QIC materials remained privileged, including committee records, witness interviews, expert reports, and the identities of QIC participants.
Legislative Response Following Castillo
Following Castillo, the Tennessee Legislature amended T.C.A. § 68-11-272 in 2026 to create express protections for "open discussions" after an "adverse health care incident."
1. Creation of "Open Discussion" Protections
The statute now expressly authorizes health care providers and organizations to engage in "open discussions" with patients or family members after an adverse health care incident.
2. No Waiver of QIC Privilege
Most importantly, the amendment addresses Castillo by providing that a good-faith disclosure to patients or family members during an open discussion "is not a waiver" of the QIC privilege and confidentiality protections. Such disclosures are "separate and apart" from QIC proceedings.
3. Communications Are Privileged and Confidential
The statute eliminates some of the uncertainty associated with the Castillo holding by expressly stating that communications occurring during qualifying "open discussions" are privileged, confidential, not discoverable, and not admissible as evidence in judicial, administrative, or arbitration proceedings, even if those discussions delve into the substance of a QIC determination. Communications during these discussions are also not considered admissions of liability.
4. Procedural Safeguards
In order to obtain these protections, however, the statute imposes some preconditions:
- The patient or family participant must sign a written acknowledgment before the discussion occurs to confirm the confidential nature of the discussions.
- Participation is limited to the patient involved in the adverse health care incident and the patient's representatives, unless otherwise agreed. If the patient is deceased or incapacitated, an open discussion may be held with the patient's family member or legal representative. If the patient is a minor, the open discussion must include the patient's guardian. Attorneys are considered party representatives who are permitted to attend such meetings, but their attendance is not mandatory.
Practical Guidance for Hospitals After an Adverse Health Care Incident
To best preserve confidentiality after the 2026 amendments, hospitals should:
- Formally designate substantive post-incident communications with a patient or family member in which quality-of-care issues are addressed as statutory "open discussions" under T.C.A. § 68-11-272(c)(6)–(7), or otherwise specifically reference the statute.
- Obtain the required written acknowledgment before any open discussion occurs.
- Although the statute protects the confidentiality of QIC activities and discussion, best practice, until these amendments are tested in practice, would dictate clear separation of QIC records and deliberations from any discussion materials shared externally. Any discussion of QIC meetings or deliberations should avoid specifics, including the names of participants, as much as possible.
- Limit attendance to necessary participants and representatives.
- Train executives, risk managers, and individuals participating in QIC activities about the importance of privilege preservation and following statutory procedures for any discussions with patients or family members about quality-of-care issues or concerns that have been investigated internally.
- Train providers to exercise caution in discussing an adverse health care incident and to seek guidance from organizational decision-makers before engaging in a discussion that may operate to waive the QIC privilege.
- Consider seeking documentation or acknowledgment that "open-discussion" communications are undertaken in good faith pursuant to the statute. (This may be risky as an "across-the-board" practice because an advance affirmation may not be effective and, depending on how the meeting goes, obtaining such documentation after the meeting may be problematic).
- Avoid informal or undocumented disclosure meetings that fall outside the statutory protections recognized by the amendment.
For more information about Tennessee's "open discussion" protections or further analysis regarding the impact of the 2026 amendments to Tennessee's QIC privilege statute on your organization, please contact Buckner Wellford, Nora A. Koffman, or any member of Baker Donelson's Health Care Litigation Group.
The authors acknowledge with appreciation the assistance and research from Baker Donelson Summer Associate Apiranee Iverson.