Attorney General v. Bruce

369 N.W.2d 826, 422 Mich. 157

• Court: Michigan Supreme Court
• Decided: June 25, 1985
• Docket: 71645, (Calendar No. 16)
• Status: Published

Opinions

Riley, J.

This case requires us to decide if records requested by the Michigan Board of Medicine, and ordered by investigative subpoena to be produced, are privileged or confidential with respect to an investigation by the board, although the documents are not public records nor subject to court subpoena for any other purposes.

The Court of Appeals reversed the judgment of the Ingham Circuit Court, holding that defendant hospital’s peer review committee proceedings were confidential and could not be subpoenaed by the Board of Medicine. 124 Mich App 796; 335 NW2d 697 (1983).

We affirm.

Introduction

The Public Health Code, MCL 333.1101 et seq.; MSA 14.15(1101) et seq., imposes upon Michigan hospitals the duty to review their professional practices and procedures for the purpose of improving the quality of patient care and reducing patient morbidity and mortality.

To encourage and implement productive peer review procedures, the Legislature has provided that the information and records developed and compiled by peer review committees be confidential and not subject to court subpoena. MCL 333.20175(5); MSA 14.15(20175X5), and MCL 333.21515; MSA 14.15(21515).

Procedural History

In accordance with this legislation, and pursuant to the specific requirements of § 20175(4),¹ on December 14, 1981, defendant Berrien General Hospital notified the Board of Medicine that it had completed an internal investigation of a staff physician, Dr. Weldon Cooke. The impetus for this investigation was the death of a patient on November 7, 1981. As a result of the investigation, Dr. Cooke’s staff privileges were suspended for six months.

After receiving the hospital’s notification letter,² the Department of Licensing and Regulation, on behalf of the board, began its own independent investigation, requesting the hospital to submit the information it had obtained during the course of its internal investigation. The hospital refused, claiming that the information was privileged. On behalf of the department, the Attorney General petitioned the Ingham Circuit Court for the issuance of an investigative subpoena,³ claiming that the department was entitled to the information pursuant to article 15 of the Public Health Code, MCL 333.16101; MSA 14.15(16101), through MCL 333.18838; MSA 14.15(18838), and citing the following pertinent provisions:

A board may request and receive the following reports and shall evaluate the reports, determine whether grounds for disciplinary action exists, and apply appropriate sanctions:

(a) Information from a licensed health care facility as to disciplinary action taken by it which results in the change of employment status or privileges of practice of a licensee, and a summary of the information pertinent to the change, where the action is related to the safety and competence of practice.

* * *

(d) Reports from any other appropriate source necessary for determination of the competency and safety of the practice of a licensee. Appropriate sources include appointed public and private professional review entities and public and private health insurance programs. [MCL 333.16243; MSA 14.15(16243).]

The authority of the Attorney General to subpoena information on behalf of the department is provided for in MCL 333.16235; MSA 14.15(16235):

(1) Upon application by the attorney general or a party to a contested case, the circuit court may issue a subpoena requiring a person to appear before a hearing examiner in a contested case or before the department in an investigation and be examined with reference to a matter within the scope of that contested case or investigation and to produce books, papers, or documents pertaining to that contested case, or investigation.

The Attorney General claims that these two provisions read together provide express statutory authorization for the release of this information. We do not agree.

Analysis

The duty of a hospital to provide for internal review of the professional practices of physicians granted staff privileges is created by article 17 of the code. MCL 333.20101; MSA 14.15(20101), through MCL 333.22181; MSA 14.15(22181). In particular, MCL 333.21513; MSA 14.15(21513) provides:

The owner, operator, and governing body of a hospital licensed under this article:

(d) Shall assure that physicians admitted to practice in the hospital are organized into a medical staff to enable an effective review of the professional practices in the hospital for the purpose of reducing morbidity and mortality and improving the care provided in the hospital for patients. This review shall include the quality and necessity of the care provided and the preventability of complications and deaths occurring in the hospital.

That provision is immediately followed by MCL 333.21515; MSA 14.15(21515), which provides:

The records, data, and knowledge collected for or by individuals or committees assigned a review function described in this article are confidential and shall be used only for the purposes provided in this article, shall not be public records, and shall not be available for court subpoena.

The Attorney General argues that the above-quoted language was intended only to protect the confidentiality of peer review proceedings from discovery in circuit court proceedings (i.e., malpractice actions); that these provisions were not intended to preclude the department from gaining access to this type of information in the context of license review investigations. Noting that the pertinent code provisions were enacted within a thirty-day period, and referring to the general rule that statutes in pari materia must be construed together,⁴ the Attorney General urges that the section providing confidentiality to peer review committee records must be read in light of the. board’s authority to investigate.

The problem with this argument is that department investigations are conducted pursuant to article 15 of the code. Internal peer review áctivities are required by article 17. MCL 333.21513; MSA 14.15(21513). MCL 333.21515; MSA 14.15(21515) expressly provides that the records, data, and knowledge collected by the peer review committee "shall be used only for the purposes provided in this article.”⁵ This language is unambiguous. Where the statutory language is plain and unambiguous, judicial construction or interpretation which would distort the plain meaning is precluded. Jones v Grand Ledge Public Schools, 349 Mich 1, 9-10; 84 NW2d 327 (1957).

We are persuaded that the Legislature’s intention that peer review committee records not be discoverable by the board in connection with an article 15 investigation is evident on examination of the statute from which § 21515 evolved. Section 12 of 1968 PA 17, as amended, MCL 331.411 et seq.; MSA 14.1179(1) et seq., provided:

(2) All records, data and knowledge collected for or by individuals or committees assigned this review function after the certification by the director are confidential and shall be used only for the purposes provided in this act, shall not be public records and shall not be available for court subpoena. [Emphasis added.]

The foregoing provision was subsequently amended by 1975 PA 111, MCL 331.422; MSA 14.1179(12), to read:

(2) All records, data and knowledge collected for or by individuals or committees assigned this review function are confidential and shall be used only for the purposes provided in this act, shall not be public records and shall not be available for court subpoena, except as provided in subsection (4).

(4) A hospital shall report to the appropriate medical licensing board within 30 days the name of a person and the relevant circumstances causing any of the following:

(a) The resignation of the person from the medical staff.

(b) The removal or suspension of a person from the medical staff.

(c) Any other disciplinary action relating to professional practice taken against a member of the medical staff. [Emphasis added.]

The current provision reads:

The records, data, and knowledge collected for or by individuals or committees assigned a review function described in this article are confidential and shall be used only for the purposes provided in this article, shall not be public records, and shall not be available for court subpoena. [MCL 333.21515; MSA 14.15(21515). Emphasis added.]

Two significant changes are obvious. First, while the predecessors to MCL 333.21515; MSA 14.15(21515) provided that peer review committee records could be used "for the purposes provided in this act,” § 21515 allows their use "only for the purposes provided in this article.”

Second, in 1975 PA 111, MCL 331.422; MSA 14.1179(12), the immediate forerunner of §21515, the Legislature saw fit to make an exception to the "not available for court subpoena” rule for reports to the licensing board. It follows, therefore, that if "court subpoenas,” as then used, was meant to mean a subpoena only in a civil matter, there would then be no reason to exempt internal reporting under the enforcement provision of civil subpoenas, and subpoenas by the board which must be obtained from a court. Failing this conclusion, there would have been no reason to make an exception to the "not available for court subpoena” rule.

We conclude, therefore, that substitution of the language "in this article” (article 17) for "in this act,” together with the elimination of the exception which appeared in § 12(4) of 1975 PA 111, is a clear expression of the Legislature’s intent that peer review committee records not be discoverable by the board in an article 15 investigation.

The Attorney General next relies on another provision of article 17. MCL 333.20175(4); MSA 14.15(20175)(4) requires hospitals to "report to the appropriate licensing board and to the department not more than 30 days after any disciplinary action has been taken against a member of the medical staff, and the relevant circumstances, for any of the grounds set forth in section 16221.” He claims that the hospital’s duty to report the "relevant circumstances” of disciplinary actions indicates a legislative intent to allow the board to obtain the records requested. The Attorney General suggests that this provision defeats the privilege created by § 21515.

This argument is undermined by MCL 333.20175(5); MSA 14.15(20175X5) which immediately follows the provision discussed above:

(5) The records, data, and knowledge collected for or by individuals or committees assigned a professional review function in a health facility or agency are confidential, shall be used only for the purposes provided in this article, are not public records, and are not subject to court subpoena.

The Legislature’s inclusion of the foregoing provision, immediately following the provision which requires a report to the board, suggests to us that the report will be of a more narrow scope than is urged by the Attorney General. We believe that the language requiring the hospital to report "relevant circumstances” contemplates an explanation, in general terms, of the reasons for the hospital’s actions, which could serve as a basis for the board’s own investigation.⁶ Had the Legislature intended that hospital peer review committee information be available for departmental investigations, it would have expressly so provided as it did in MCL 333.16244; MSA 14.15(16244), which provides that the physician-patient privilege does not apply with respect to such investigations.

We also reject the Attorney General’s argument that to deny the board access to peer review information for use in conducting its investigation defeats the Legislature’s intent in enacting article 15 of the code. He argues that the requested information is essential to departmental investigations into the qualifications of licensed health care professionals.

Here, again, we cannot agree. Hospitals are required to establish peer review committees whose purposes are to reduce morbidity and mortality and to ensure quality of care. MCL 333.21513; MSA 14.15(21513). Included in their duties is the obligation to review the professional practices of licensees, granting staff privileges consistent with each licensee’s qualifications. MCL 333.21513(c); MSA 14.15(21513)(c).

The rationale for protecting the confidentiality of the records, data, and knowledge of such committees was set forth in an oft-quoted opinion of the United States District Court for the District of Columbia:

Confidentiality is essential to effective functioning of these staff meetings; and these meetings are essential to the continued improvement in the care and treatment of patients. Candid and conscientious evaluation of clinical practices is a sine qua non of adequate hospital care. To subject the discussions and deliberations to the discovery process, without a showing of exceptional necessity, would result in terminating such deliberations. [Emphasis in original. Bredice v Doctors Hospital, Inc, 50 FRD 249, 250 (D DC, 1970), aff’d without opinion 156 US App DC 199; 479 F2d 920 (1973).]

In enacting §§20175(5) and 21515, the Legislature provided a strong incentive for hospitals to carry out their statutory duties.⁷

We do not deny that there exists a strong public interest underlying article 15, i.e., ensuring the competency of state licensees. In recognition of the board’s/department’s broad responsibilities, the Legislature has authorized the department to investigate the activities of licensees. MCL 333.16221, 333.16233; MSA 14.15(16221), 14.15(16233). The department may interview hospital employees and staff members who have personal knowledge of the activities under investigation and may obtain patient records.⁸ The Attorney General is empowered to obtain a court order requiring such testimony and production of such records. MCL 333.16235; MSA 14.15(16235). It is precisely this broad authority given the department to conduct investigations that belies the Attorney General’s argument that peer review committee records are essential to departmental investigations. To the contrary, the Legislature has enabled the department to utilize much the same information in its investigation as was available to the hospital’s peer review committee._

The Attorney General’s final argument, which was not raised in either the circuit court or the Court of Appeals, is premised on 1967 PA 270, as amended, MCL 331.531 et seq.; MSA 14.57(21) et seq.9 He claims that this act provides authority for the argument that the hospital must comply with the investigative subpoena. We disagree.

This statute protects persons, organizations, and entities that choose to disclose information to a review entity, including, presumably, the department. Such persons, organizations, and entities are immunized from liability so long as they act with-, out malice and the information is released for one of the following purposes:

(a) To advance health care research or health care education.

(b) To maintain the standards of the health care professions.

(c) To protect the financial integrity of any governmentally funded program.

(d) To provide evidence relating to the ethics or discipline of a health care provider, entity, or practitioner. [MCL 331.532; MSA 14.57(22).]

The subpoena indeed may have requested information for permissible purposes, i.e., paragraphs (b) and (d). Release of such information, however, is clearly discretionary according to MCL 331.531; MSA 14.57(21) which provides that "[a] person, organization or entity may provide information.” (Emphasis added.) The act does not provide authority for the proposition that disclosure to the department is mandatory.¹⁰

Conclusion

We conclude, therefore, that the peer review committee information requested in the investigative subpoena is statutorily protected from discovery by the board. To hold otherwise would require us to create an exception to the privilege granted such information by the Legislature; that is not for us to do.

Affirmed.

No costs, a statutory interpretation being involved.

Williams, C.J., and Levin, Ryan, Brickley, and Cavanagh, JJ., concurred with Riley, J.

1 MCL 333.20175(4); MSA 14.15(20175X4).

2 The hospital’s peer review committee made the following finding:

"... Dr. Cooke has demonstrated a pattern of clinical practice and professional conduct within the hospital setting which fails to meet standards acceptable for the present exercise of clinical privileges and staff activity at Berrien General Hospital. Areas of deficiency or inappropriate performance by Dr. Cooke were determined to be as follow:

"1. Preventable technical error in performance of surgical procedures.

"2. Physician neglect of patients.

"3. Judgmental error in patient management.

"4. Avoidable post-operative complications.

"5. Unprofessional behavior within the hospital setting.”

3 The subpoena requested:

"Any and all information in the custody or control of Berrien General Hospital, Berrien Center, Michigan, arising from a corrective action investigation of. a patient incident involving Weldon J. Cooke, M.D., license #20597, resulting in the death of a patient on November 7, 1981, including reports, incident reports and testimony compiled by or on behalf of Berrien General Hospital; and any and all orders of Berrien General Hospital, its agents or committees, and any responses or notices filed by Weldon J. Cooke, M.D.”

4 Reed v Secretary of State, 327 Mich 108; 41 NW2d 491 (1950).

5 Cf. the language of the Maryland statute:

"The proceedings, records, and files of a medical review committee are neither discoverable nor admissible into evidence in any civil action arising out of matters which are being reviewed and evaluated by the committee.” (Emphasis added.) Unnamed Physician v Comm on Medical Discipline, 285 Md 1, 4; 400 A2d 396 (1979), cert den 444 US 868 (1979).

The Maryland Court of Appeals held that a proceeding before the commission is not a civil action, and thus the proceedings, records, and files of the medical review committee were not statutorily protected from discovery by the commission.

6 Although the hospital’s initial notification letter to the board (see n 2) was arguably deficient in that it did not even specify the patient’s name which prompted the hospital’s disciplinary action, that information and the patient’s medical records were eventually communicated to the board.

7 A commentary on the Public Health Code (Strichartz, Commentary on the Michigan Public Health Code, U of Mich Press, 1982), written by the Executive Director of the Public Health Statute Revision Project, recognizes the importance of confidentiality to effective functioning of peer review committees. The commentary on § 20175 provides:

"For professional review organizations the additional protection from disclosure even under a court order of the 'records, data and knowledge collected for or by committees assigned’ this [peer review] function strengthens their ability to perform their role.” Id. at 717.

The commentary on § 21515 provides:

"To make the review function effective, the records, data, and knowledge collected by those assigned this task are made confidential. A general provision of similar tone is found in § 20175(5).” Id. at 790.

8 At oral argument, counsel for the hospital noted that the board’s investigator interviewed various hospital members, obtained the medical records of the patients involved and was given access to the laparoscopic instrument.

9 MCL 331.531; MSA 14.57(21).

"A person, organization, or entity may provide information or data relating to the physical or psychological condition of any person, or the necessity, appropriateness, or the quality of health care rendered to any person, to any review entity. Review entity means a duly appointed peer review committee of the state, of a state or county association of health care professionals, of an officially constituted health care facility, or of a health care association; a professional standards review organization qualified under federal or state law; a foundation or organization acting pursuant to the approval of a state or county association of health care professionals; or a state department or agency whose jurisdiction encompasses such information. Liability of any kind shall not arise or be enforced against any person, organization, or entity by reason of having provided such information or data; by reason of any act or communication within its scope as a review entity; or by reason of having released or published the proceedings, reports, findings, or conclusions of the review entity subject to the limitations of sections 2 and 3. The immunity in this section shall not apply to a person, organization, or entity that acts with malice.”

MCL 331.532; MSA 14.57(22).

"The release or publication of the proceedings, reports, findings, and conclusions of a review entity shall be for 1 or more of the following purposes;

"(a) To advance health care research or health care education.

"(b) To maintain the standards of the health care profession.

"(c) To protect the financial integrity of any governmentally funded program.

"(d) To provide evidence relating to the ethics or discipline of a health care provider, entity, or practitioner.”

MCL 331.533; MSA 14.57(23).

"The identity of any person whose condition or treatment has been studied shall be confidential and such person’s name and address shall be removed from the record before the review entity releases or publishes it [sic] proceedings, reports, findings and conclusions, and, except for the purposes set forth in section 2, all proceedings, reports, findings and conclusions of review entities under this act are confidential and shall not be discoverable or used as evidence in an action for personal injuries based upon malpractice, lack of informed consent or negligence.”

10 We do not suggest that a hospital may rely on this language giving it discretion to release peer review committee records to avoid legitimate requests by the board for information relating to disciplinary actions. Again, we emphasize a hospital’s duty to cooperate with such investigations by reporting, as was done here, discipline taken and the relevant circumstances. And, the privilege is a narrow one, applying only to "[t]he records, data and knowlege collected for or by individuals or committees” assigned a peer review function. MCL 333.20175(5), 333.21515; MSA 14.15(20175X5), 14.15(21515). Marchand v Henry Ford Hospital, 398 Mich 163; 247 NW2d 280 (1976). A claim that certain documents are not privileged may be presented to a circuit court for a hearing. Monty v Warren Hospital Corp, 422 Mich 138; 366 NW2d 198 (1985); Marchand, supra. That is not the situation in this case, however. Here the Attorney General concedes that the request was for peer review committee records.