Freeman v. Piedmont Hospital

444 S.E.2d 796, 264 Ga. 343, 1994 Ga. LEXIS 482

• Court: Supreme Court of Georgia
• Decided: July 11, 1994
• Docket: S93G1812
• Status: Published

Opinions

Benham, Presiding Justice.

Freeman, an anesthesiologist, and his professional corporation filed suit against Piedmont Hospital, its administrator, and Butler, the chairman of the hospital’s anesthesiology department and a member of its credentials committee, alleging defamation and intentional interference with business relations. The basis of the suit was the content of a letter sent by the hospital administrator pursuant to OCGA § 31-7-8 to the Composite State Board of Medical Examiners (“the Board”) after Freeman voluntarily resigned from Piedmont Hospital’s medical staff. The letter attributed Freeman’s resignation, in part, to disparaging reports concerning his performance made by Butler and another physician to the hospital’s credentials committee. The letter indicated that the reporting physicians’ actions were based primarily on concerns expressed by hospital nurses regarding Freeman’s performance. When Freeman’s application to join the staff at a Savannah hospital was denied “in view of the present controversy at Piedmont Hospital and the impending investigation by the [Board],” the present action ensued. The trial court denied plaintiffs’ motion to compel discovery, and granted defendants’ motion for summary judgment. After reversing the grant of summary judgment to Butler, the Court of Appeals upheld the denial of the motion to compel discovery, relying on the privilege against discovery of peer review proceedings contained in OCGA § 31-7-133 (a). See Freeman v. Piedmont Hosp., 209 Ga. App. 845 (2) (434 SE2d 764) (1993).

While it is uncertain from the current state of the record in the present case whether or when peer review proceedings commenced, we granted certiorari to consider whether the Court of Appeals correctly affirmed the denial of the motion to compel discovery by construing the privilege afforded by OCGA § 31-7-133 (a).

The statute at issue, OCGA § 31-7-133 (a), provides:

Except in proceedings alleging violation of this article, the proceedings and records of a review organization shall be held in confidence and shall not be subject to discovery or introduction into evidence in any civil action arising out of or otherwise directly related to the matters which are the subject of evaluation and review by such organization; and no person who was in attendance at a meeting of such organization shall be permitted or required to testify in any such civil action as to any evidence or other matters produced or presented during the proceedings of such organization or as to any findings, recommendations, evaluations, opinions, or other actions of such organization or any members thereof. However, information, documents, or records otherwise available from original sources are not to be construed as immune from discovery or use in any such civil action merely because they were presented during proceedings of such organization, nor should any person who testifies before such organization or who is a member of such organization be prevented from testifying as to matters within his knowledge; but such witness cannot be asked about his testimony before such organization or about opinions formed by him as a result of the organization hearings.

Enactment of § 31-7-133 (a) conferred a privilege from discovery upon a peer review organization’s proceedings in order to foster the candor necessary for effective peer review, which is an .essential element of providing quality health care services. See Eubanks v. Ferrier, 245 Ga. 763 (3) (267 SE2d 230) (1980) (construing similar language in OCGA § 31-7-143 as to medical review committees). This court examined the scope of the privilege from discovery in Emory Clinic v. Houston, 258 Ga. 434, 434-435 (369 SE2d 913) (1988), when it granted certiorari “to determine the scope of statutory prohibitions on the use of information produced by peer review and medical review groups in civil litigation.” (Emphasis supplied.) In answering that question, this court concluded that the statutes “placed an absolute embargo upon the discovery and use of all proceedings, records, findings and recommendations of peer review groups and medical review committees in civil litigation,” thereby reinforcing the need to preserve the candor essential to effective peer review.

However, the statute’s provision for the confidentiality of the proceedings and records of a peer review committee is limited by its own terms, contained in its second sentence. While the statute preeludes a party from discovering the proceedings and records of a peer review organization, it specifically authorizes a party to seek from original sources documents which the peer review organization examined, and to examine anyone who appeared before or was a member of the peer review organization, so long as the witness is not asked about the peer review proceedings. See Hollowell v. Jove, 247 Ga. 678 (b) (279 SE2d 430) (1981); Eubanks v. Ferrier, supra, Div. 5; Cobb County Kennestone Hosp. Auth. v. Martin, 208 Ga. App. 326 (430 SE2d 604), cert. den. 208 Ga. App. 909 (1993).

The statutory interpretation suggested by the special concurrence, intertwining OCGA § 31-7-132 (a) with § 31-7-133, would open the door of discovery too widely by stripping the entire peer review process of its confidentiality. OCGA § 31-7-132 (a) deals only with immunity from liability, and the fact that a plaintiff seeks to avoid an immunity defense by alleging the applicability of the malice exception does not convert the action into one “alleging violation of [OCGA §§ 31-7-130-133]” so as to provide for an exception to the confidentiality mandate. Allowing an allegation of malice to trigger the applicability of the exception to the confidentiality requirement would result in the opportunity for full discovery of peer review material in every such case. The use of a bare allegation of malice is not sufficient to elevate a plaintiff’s access to evidence over this court’s previously-stated preference for preserving the candor necessary for effective peer review. See Eubanks v. Ferrier, supra.

To the extent petitioners sought the records, proceedings, findings, and recommendations of the peer review organization, the trial court was correct in denying the motion to compel. However, not all the discovery sought by petitioners can be classified as the work product of the peer review organization or be considered as records or proceedings of the organization. Therefore, the Court of Appeals’ affirmance of the trial court’s denial of the motion to compel is reversed, and the case remanded with direction that it be further remanded to the trial court for reconsideration of the motion to compel in light of the guidelines set forth in § 31-7-133 and expounded upon herein.¹

Judgment reversed.

All the Justices concur, except Hunstein, J., who concurs specially.

1 As the statutory privilege prohibiting discovery is particular to peer review organizations, the privilege is not applicable where peer review has not occurred.