Fed. R. Evid. 501. “[W]here there is no dispute as to the relevance of the requested information, the burden of establishing that otherwise relevant discovery is privileged is on the party asserting the privilege.” Hubble v. Cnty. of Macomb, No. CV 16-13504, 2017 WL 11565718, at *2 (E.D. Mich. Aug. 23, 2017), aff'd, No. 16-CV-13504, 2017 WL 5952119 (E.D. Mich. Dec. 1, 2017).

As an initial matter, it is not clear to the Court whether Defendant SWHA requests that the Court recognize a medical peer review privilege [see Doc. 100 pp. 3–7 (requesting that the Court analyze five factors to determine whether the medical peer review privilege would apply in this case)] or find that the withheld material is protected as “patient safety work product” [see id. at 3 (addressing the applicability of federal statutes) and 7 (stating that the material is protected as “patient safety work product”); see also Doc. 99-2 p. 11 (objecting on the basis that the information is protected by the “patient safety and quality improvement statutes”)]. Regardless, the Court finds that Defendant SWHA's privilege assertions are not well taken.

To the extent Defendant SWHA asks the Court to recognize a medical peer review privilege in this case, the United States Supreme Court has held, “We do not create and apply an evidentiary privilege unless it ‘promotes sufficiently important interests to outweigh the need for probative evidence....’ ” Univ. of Pennsylvania v. EEOC, 493 U.S. 182, 189 (1990) (ellipses in original) (quoting Trammel v. United States, 445 U.S. 40, 51 (1980)). “In making this determination[,] the court must consider whether the privilege serves private and public interests, the evidentiary benefit that would result from denying the privilege[,] and if the states recognize the privilege.” Hall v. Correction Healthcare Cos., Inc., No. 1:17CV627, 2018 WL 3743877, at *2 (S.D. Ohio Aug. 7, 2018) (citing Jaffee v. Redmond, 518 U.S. 1, 10–13 (1996)).

“The [United States] Supreme Court has expressed reluctance to expand the parameters of privilege law in recent years and many federal courts have declined to recognize a number of proposed privileges.” Id. (citation omitted). And several courts have addressed the medical peer review privilege. “The weight of authority in the Sixth Circuit and elsewhere is that no medical peer review privilege exists under federal common law.” Allen v. Cuyahoga Cnty., No. 1:12CV1659, 2014 WL 434558, at *5 (N.D. Ohio Feb. 4, 2014) (collecting cases); see also Gulley v. Lapaglia, No. 3:12-CV-371, 2014 WL 223646, at *1 (E.D. Tenn. Jan. 21, 2014) (“[I]t has been suggested that there is a ‘consensus among lower courts and in other circuits that no federal privilege protects medical peer review materials in civil rights or antitrust actions[.]’ ” (quoting Veith v. Portage Cnty, No. 5:11-cv-2542, 2012 WL 4850197, at *2 (N.D. Ohio Oct. 11, 2012)); see also Allgood v. Baptist Mem'l Med. Grp., Inc., No. 19-2323, 2020 WL 86455, at *2 (W.D. Tenn. Jan. 7, 2020) (“Baptist has not identified any caselaw that suggests federal privilege law recognizes a parallel privilege to the one established by T.C.A. § 68-11-272(c)(1). Indeed, federal courts have repeatedly held no parallel federal privilege exists.”), aff'd, No. 219CV02323, 2020 WL 821381 (W.D. Tenn. Feb. 19, 2020).

*4 But Defendant SWHA argues that the cases declining to recognize the medical peer review privilege “all implicated federal statutes concerning fraud, prisoner's rights and/or arrests” [Doc. 100 p. 4]. Plaintiff characterizes the Complaint as a civil rights claim in the motion, but Defendant SWHA argues that this is not a civil rights case. Indeed, while Plaintiff has pleaded a violation of § 1983, the claim against Defendant SWHA is for violating EMTALA [See Doc. 1 ¶ 68].[3] Defendant SWHA urges the Court to construe Plaintiff's claim as one for medical malpractice, which it contends would support applying the medical peer review privilege here. See Sevilla v. United States, 852 F. Supp. 2d 1057, 1058–69 (N.D. Ill. 2012) (recognizing the privilege in a Federal Tort Claims Act medical malpractice case). And while the parties do not address these cases, courts within this circuit have also recognized the privilege in medical malpractice actions. See Miller v. Uchendu, No. 213CV02149, 2016 WL 11784214, at *5 (W.D. Tenn. Mar. 21, 2016) (“Particularly, other federal courts have recognized a peer review privilege in medical malpractice actions.” (citing Veith, 2012 WL 4850197, at *2 (holding that the public interest lies strongly in favor of recognizing a privilege in medical malpractice actions”)); In re Dep't of Justice Subpoena Duces Tecum To Custodian of Records For Baptist Mem'l Hosp., No. 04-MC-018, 2004 WL 2905391, at *2 (W.D. Tenn. June 22, 2004) (discussing the peer review privilege and noting that the privilege would be recognized in medical malpractice cases)). Plaintiff, however, did not plead medical malpractice and instead relies on the EMTALA [See Doc. 1 ¶ 68]. EMTALA cannot be construed as a medical malpractice action. See Harry v. Marchant, 291 F.3d 767, 773 (11th Cir. 2002) (“EMTALA was not intended to establish guidelines for patient care, to replace available state remedies, or to provide a federal remedy for medical negligence.” (citations omitted)); Vickers v. Nash Gen. Hosp., Inc., 78 F.3d 139, 142 (4th Cir. 1996) (“EMTALA is not a substitute for state law malpractice actions, and was not intended to guarantee proper diagnosis or to provide a federal remedy for misdiagnosis or medical negligence.” (quoting Power v. Arlington Hosp. Ass'n, 42 F.3d 851, 856 (4th Cir. 1994))); Hines v. Adair Cnty. Pub. Hosp. Dist. Corp., 827 F. Supp. 426, 431–32 (W.D. Ky.1993) (“In other words, Congress did not intend to create a federal tort of negligence or to require the application of a negligence standard in an analysis of either of these federal duties as an alternative to state medical malpractice claims.”).

Further, courts within this circuit have declined to recognize the medical peer review privilege in other contexts. For instance, this Court declined to recognize the peer review privilege in a case alleging discrimination and violations of the Family Medical Leave Act. See Coone v. Chattanooga-Hamilton Cnty. Hosp. Auth., No. 1:16-CV-481, 2017 WL 9476830, at *2 (E.D. Tenn. May 18, 2017) (“In the instant case, the privilege asserted by the Hospital is a peer review privilege. Neither the Sixth Circuit nor the Supreme Court has recognized a federal peer review privilege.”). In addition, the Western District of Tennessee, in a case alleging EMTALA claims, held, “Neither the United States Supreme Court nor the Sixth Circuit has recognized a medical peer review privilege under federal common law.” Levans v. Saint Francis Hosp.-Bartlett, Inc., No. 15-CV-2142, 2015 WL 11017962, at *3 (W.D. Tenn. Sept. 18, 2015).

The Court acknowledges that Tennessee recognizes the medical peer review privilege, see Tenn. Code Ann. §§ 63-1-150 & 68-11-272, which “would weigh in favor of the privilege.” Hall, 2018 WL 3743877, at *3 (finding because Ohio recognized the peer review privilege, “this would weigh in favor of the privilege”); Gulley, 2014 WL 223646, at *1 (noting that “comity favors recognizing state law privilege” (citation omitted)). In addition, there is a public interest in “correcting life threatening errors by physicians[.]” Veith, 2012 WL 4850197, at *4 (quoting Weekoty v. United States, 30 F. Supp. 2d 1343, 1348 (D.N.M.1998)). Even so, in light of the above authority and “given that privileges are strongly disfavored in federal practice, the liberal view of discovery in the federal rules, and the lack of a historical or statutory basis for a medical peer review privilege under federal law,” Allen, 2014 WL 434558, at *5, the Court finds Defendant SWHA's privilege assertion not well taken.[4]

*5 Turning to the statute, in 2005, Congress passed the Patient Safety Quality Improvement Act of 2005 (“PSQIA”).[5] “Congress enacted the PSQIA in an attempt to limit the medical-malpractice exposure of healthcare providers who attempt to learn from their mistakes as part of a patient-safety-evaluation system.” Taylor v. Hy-Vee, Inc., No. 15-9718, 2016 WL 7405669, at *2 (D. Kan. Dec. 22, 2016) (citation omitted). In relevant part, it states:

42 U.S.C.A. § 299b-22. As one court recognized, PSQIA “announces a more general approval of the medical peer review process and more sweeping evidentiary protections for materials used therein.” Dieffenbach, 715 F. Supp. 2d at 595; see also K. C. v. Cnty. of Alameda, No. 22-CV-01817, 2024 WL 4008762, at *1 (N.D. Cal. Aug. 29, 2024) (“The PSQIA is a federal law that establishes a privilege for ‘patient safety work product[.]’ ”); Johnson v. Cook Cnty., No. 15 C 741, 2015 WL 5144365, at *5 (N.D. Ill. Aug. 31, 2015) (“[T]he PSQIA affords a privilege to all documents, communications, and other information that meet the statutory definition of ‘patient safety work product.’ ” (citation omitted)), objections overruled sub nom. Johnson v. Cook Cnty., No. 15 C 741, 2015 WL 14069377 (N.D. Ill. Oct. 29, 2015).[6]

*6 One court has noted, “In the absence of any explicit exception to the plain language of subsections (a) and (b) for federal civil rights actions, it is clear to the Court that the privilege created for patient safety work product is intended to apply across-the-board to all other types of claims.” Tinal v. Norton Healthcare, Inc., No. 3:11-CV-596-S, 2014 WL 12581760, at *10 (W.D. Ky. July 15, 2014); see also Herriges v. Cnty. of Macomb, No. CV 19-12193, 2020 WL 4726940, at *2 (E.D. Mich. Aug. 14, 2020) (“The Court agrees with Tinal and finds that the PSQIA is applicable in § 1983 actions.”); but see United States v. Jackson Madison Cnty. Gen. Hosp., No. 12-2226, 2012 WL 12899055, at *3 (W.D. Tenn. Oct. 16, 2012) (declining to find that the PSQIA protected the requested material noting, in part, that “there is a significant national interest in punishing doctors who seek to default the government and the taxpayers” (citation omitted)).

Defendant SWHA states, “The PSQIA protects all ‘patient safety work product,’ an expansive term for which the information and records sought here fit squarely under the decision of” [Doc. 100 p. 7]. But the PSQIA defines “patient safety work product” as follows:

42 U.S.C. § 299b-21(7)(A).

“[C]ourts in this Circuit have identified two prongs for determining if the privilege applies: (1) the document is ‘created for the purpose of reporting to a patient safety organization’ and (2) ‘is so reported.’ ” Nelms v. Wellpath, LLC, 667 F. Supp. 3d 560, 563 (E.D. Mich. 2023) (quoting Penman v. Correct Care Sols., LLC, No. 5:18-CV-00058, 2020 WL 4253214, at *3 (W.D. Ky. July 24, 2020)). Defendant SWHA has not provided any evidence that the withheld material meets these two prongs. “Courts carefully scrutinize the assertion of the PSQIA privilege and generally require factual assertions to be supported by evidence.” Est. of Hultman v. Cnty. of Ventura, No. CV2106280, 2022 WL 2101723, at *5 (C.D. Cal. May 16, 2022); cf. Herriges, 2020 WL 4726940, at *7-8 (finding the defendant's employee's testimony was insufficient to show that the materials were provided to a patient safety organization and therefore the documents were not protected under the PSQIA ); Penman, 2020 WL 4253214, at *4 (finding that the defendant did not provide “necessary information to effectively evaluate whether the [r]eport was [patient safety work product]” because the defendant “failed to state when the [r]eport was created, the reason(s) why this specific [r]eport was created, when it was provided to [the Kentucky Department of Corrections] and why it was provided”).

“When courts find that the PSQIA privilege does apply, they base their findings on evidence offered by the party asserting the privilege.” Est. of Hultman, 2022 WL 2101723, at *5 (citations omitted). Defendant SWHA has not met its burden to show that the PSQIA protects any of the withheld material.

III. CONCLUSION

For the reasons stated above, the Court GRANTS Plaintiff's Motion to Compel Interrogatory Answers and Document Responses of Defendant Sweetwater Hospital Association [Doc. 99]. Defendant Sweetwater Hospital Association SHALL file supplemental responses to the discovery requests within fourteen (14) days. To the extent the responses and/or documents should be confidential, the parties shall meet and confer about an appropriate protective order.

*7 IT IS SO ORDERED.

ENTER: