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Tennessee’s new peer professional privilege

9/11/23

By: Jason M. Pannu and Timothy R. Gilbert

The Tennessee Supreme Court recently established a common law evidentiary privilege, specifically shielding defendant healthcare providers from being compelled to testify as to the standard of care applicable to other defendant healthcare providers. Borngne ex rel. Hyter v. Chattanooga-Hamilton Cnty. Hosp. Auth., 671 S.W.3d 476 (Tenn. 2023). While this new “Peer Professional” privilege has clear implications in the realm of medical malpractice, the shadow cast by the opinion—specifically by what remains unsaid—may stretch far beyond medical malpractice, covering all areas of professional liability claims. Justice Kirby noted her concern regarding “the lack of any limiting principle” in her concurring opinion. Borngne 671 S.W.3d at 491 (Kirby, J., concurring). The practical implications of Borngne for licensed professionals will undoubtedly become the subject of future appellate opinions. This blog post will briefly discuss the Borngne opinion as well as the underpinnings of Tennessee’s newest evidentiary privilege. We will also discuss the prospective reach of the “Peer Professional” privilege and consider Borngne’s reverberations in the world of professional liability claims in Tennessee. 

As noted above, the Supreme Court has officially recognized the “Peer Professional” privilege in Borngne ex. Rel. Hyter v. Chattanooga-Hamilton County Hospital Authority. Borngne involved a medical malpractice claim brought by the mother of a child who suffered brain damage as a result of complications during childbirth. The plaintiff sued the delivering physician, the nurse midwife, their employer, and the hospital. While the trial court granted summary judgment on all claims of direct negligence against the physician, he remained in the case based upon the plaintiff’s theory that he was vicariously liable for the nurse midwife’s actions. During the physician’s deposition, the doctor refused to opine as to the nurse midwife’s performance in his absence. The plaintiff sought to compel his testimony regarding the nurse’s actions prior to his arrival; however, the trial court denied the plaintiff’s motion. The plaintiff ultimately appealed and the intermediate appellate court reversed the trial court, holding that the doctor should have been forced to testify. The defense subsequently appealed to the Tennessee Supreme Court, which held that a defendant healthcare provider could not be compelled to provide his “expert” opinion regarding the standard of care applicable to another defendant provider. In so holding, the Tennessee Supreme Court acknowledged the creation of a new common law evidentiary privilege, rooted in Tenn. R. Evid. 706 and supported by Lewis v. Brooks.

It appears the basis for the “Peer Professional” privilege finds its roots in an unpublished appellate opinion from 1984. Cited in Lewis v. Brooks, the Chambers v. Wilson opinion held that an expert cannot be compelled to testify against his will. 66 S.W.3d 883, 887–88 (Tenn. Ct. App. 2001). In 2001, Lewis applied the Chambers principle and held that expert party defendants (i.e. doctors) could not be compelled to answer questions beyond the realm of their “actions and opinions that they expected to render at trial.” Five years later, the Court of Appeals acknowledged that a defendant physician could be compelled to answer questions pertaining to whether his own conduct violated the applicable standard of care. Waterman v. Damp, No. M2005-01265-COA-R3CV, 2006 WL 2872432 (Tenn. Ct. App. Oct. 9, 2006). Read together, Lewis and Waterman define the scope of protection granted to defendant experts under Tennessee Law. Accordingly, while a defendant physician cannot be compelled to testify in an expert capacity as to the actions of co-defendants, they may be compelled to discuss whether their own actions deviate from the applicable standard of professional care.

Against this backdrop, the Borngne Court formally recognizes the latent privilege inherent to the Lewis holding—a defendant expert may not be compelled to provide their expert opinion concerning another defendant’s adherence to the applicable standard of professional care. While Borngne specifically addresses medical professionals and arises in the context of medical malpractice litigation, the ostensible reach of its reasoning extends much further.

In articulating the “Peer Professional” privilege the Supreme Court expressly identifies Tenn. R. Evid. 706 as its foundation. Drawing from a Wisconsin Supreme Court opinion, Carney-Hayes, 99 N.W.2d 524 (Wis. 20050), the Borngne Court reasons that, since expert witnesses cannot be appointed by the court without their consent and reasonable compensation, Rule 706 necessarily implies an expert privilege. Succinctly put, if a court cannot compel an expert to testify against their will, neither can a party opponent.

With this in mind, it seems evident that defendants in any professional liability case may now avail themselves of the “Peer Professional” privilege. Borngne does not bind its underlying rationale—protecting the fruit of one’s education, training, knowledge, and expertise from the prying hands of party opponents—to medical professionals. Logically, it follows that architects, engineers, surveyors, realtors, accountants, lawyers, and others subject to specific standards of professional care are similarly protected. Importantly, the “Peer Professional” privilege applies to co-defendants without regard to supervisory relationships.

For more information, please contact Jason M. Pannu at Jason.Pannu@fmglaw.com, Timothy R. Gilbert at timothy.gilbert@fmglaw.com or your local FMG attorney.