THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT
BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE
239(d)(2), SCACR.
THE STATE OF SOUTH CAROLINA
In The Court of Appeals
Danny R.
Prince, Respondent,
v.
Beaufort Memorial Hospital and its Employees, Servants and Agents, Appellants.
Appeal From Beaufort County
Alexander S. Macaulay, Circuit Court
Judge
Unpublished Opinion No. 2008-UP-139
Heard January 8, 2008 Filed March 3,
2008
REVERSED AND REMANDED
Mary Bass Lohr, of Beaufort, for Appellant.
T. Wayne Yarbrough, of Bluffton, for Respondent.
PER CURIAM:
In this personal injury action, Beaufort Memorial Hospital (Hospital) appeals the
grant of a new trial to Danny R. Prince on the ground that its Quality
Assurance Committee file should have been made available to Prince during the
prior trial. We reverse and remand.
FACTS AND PROCEDURAL HISTORY
On February 13, 1999, Hospital admitted Prince
into a fourth-floor room for treatment of job-related injuries. Initially, Prince
was a compliant patient and exhibited no signs of psychotic behavior. Sometime
after 10:30 p.m. on February 17, 1999, however, Prince apparently experienced a
psychotic hallucination in his hospital room and was found by Hospital staff at
11:20 p.m. on the roof of a lower floor with injuries to his ankles and head.
Although Prince did not remember anything from the incident, the window in his
room appeared to have been forced open.
On
February 15, 2001, Prince brought a negligence action against Hospital and Hospitals
servants and agents. At issue in the case was how and why Prince ended up on
the roof and whether or not the defendants could or should have prevented the
incident.
During discovery, Prince sought to obtain a copy of a file
generated by Hospitals Quality Assurance Committee pursuant to the Committees
investigation of the incident. Instead, however, Hospital provided a summary
of expected witness testimony and refused to give Prince the file, claiming it
was protected under South Carolina Code sections 40-71-10 and 40-71-20.[1] Consequently, Prince filed a motion
to compel discovery of the complete Quality Assurance Committee file. The
trial court denied the motion, and a jury ultimately returned a verdict in Hospitals
favor.
Following the denial of his motions for
judgment notwithstanding the verdict and a new trial, Prince appealed to this Court,
contending the trial court erred in finding the contents of the file were not
subject to discovery. In an unpublished opinion, this Court held
that, although Hospitals Quality Assurance Committee was within the purview of
section 40-71-10 to the extent the Committee operated pursuant to bylaws
approved by Hospital and the information acquired by the Committee was
protected under section 40-71-20, the nature of the case demands an in camera
review of the file. Prince v. Beaufort Meml Hosp., Op. No. 05-UP-602
(Ct. App. 2006) (S.C. Ct. App. filed April 11, 2006). Accordingly, this Court
reversed the denial of Princes motion for a new trial and remanded the case to
the trial court for an in camera review of the file, with the following
instructions:
[T]he circuit court shall conduct an in camera review of the
committee file. Using its discretion, the court shall decide whether the file
warrants confidentiality. If the circuit court determines that the file
contains relevant evidence which is not protected by the confidentiality
statute, then it shall declare a new trial. Alternatively, if the circuit
court determines that there is no relevant evidence in the committee file or
that the file is not entitled to protections of the confidentiality statute,
then the original denial of the new trial and JNOV motion would be affirmed.
After the
required in camera review of the Quality Assurance Committee file, the trial
court found Hospital had waived the protections of section 40-71-20 and
declared a new trial. The trial court based this finding on its observation
that Hospital used certain witness statement summaries from this committee
file in order to answer Interrogatories propounded by the Plaintiff. Using
the law on waiver of the attorney-client privilege as a guide, the trial court
further held that, once the privilege is waived, it is clear that it is waived
as to all communications on the same subject matter.
Hospital moved for reconsideration, arguing among other things Prince
did not raise the issue of waiver in his initial appeal and the trial court
lacked authority to raise the issue sua sponte on remand. The
trial court declined to amend its prior order. As to Hospitals argument that
Prince failed to preserve the issue of waiver in his appeal, the trial court
held Prince raised the issue of waiver specifically several times, and, more
importantly, . . . the issue of waiver is so intertwined with the issue of
confidentiality of the file that it was inherently preserved for review. This
appeal followed.
STANDARD OF REVIEW
The decision whether to grant a new
trial is left to the sound discretion of the trial court
and generally will not be disturbed on appeal. Dropkin v. Beach Villa
Condominium Assn, 373 S.C. 360, 363, 644 S.E.2d 808, 809 (Ct. App. 2007)
(citing Rush v. Blanchard, 310 S.C. 375, 380, 426 S.E.2d 802, 805 (1993)). An abuse of discretion occurs when the trial
courts findings are wholly unsupported by the evidence or the conclusions
reached are controlled by an error of law. Wright v. Craft, 372 S.C.
1, 36, 640 S.E.2d 486, 505 (Ct. App. 2006).
LAW/ANALYSIS
1. Hospital first argues
that Prince, in his initial appeal to this court, failed to challenge the
rejection of his argument at trial that Hospital had waived its right to assert
the Quality Assurance Committee file was confidential under section 40-71-20
and is therefore barred by the law of the case doctrine from a finding on
remand that Hospital waived its right to assert that the Quality Assurance
Committee file was confidential. We agree.
As a general rule,
an unchallenged ruling, right or wrong, is the law of the case. Ex parte
Morris, 367 S.C. 56, 65, 624 S.E.2d 649, 654 (2006). Any unappealed
portion of the trial courts judgment is law of the case and must be affirmed.
Rumpf v. Massachusetts Mut. Life Ins. Co., 357 S.C. 386, 398, 593
S.E.2d 183, 189 (Ct. App. 2004); see also ML-Lee Acquisition Fund,
L.P. v. Deloitte & Touche, 327 S.C. 238, 241, 489 S.E.2d 470, 472
(1997) (emphasizing that unappealed rulings become law of case and should not
be reconsidered by this court).
As noted by the
trial court on remand and acknowledged by counsel for both sides during oral
argument for the present appeal, Prince raised the issue of waiver to the trial
court when he sought to obtain the Quality Assurance Committee file. After the
trial, Prince appealed to this Court, raising the following five issues:
(1)
Did the [trial] court err in granting the Hospital Section 40-71-10 & 20
privileges of confidentiality regarding the incident reports without requiring
proof that the Section applies? (2) Did the [trial] court err in denying the [Prince]
his statement made the night of the incident? (3) Did the court erred [sic]
when it found that the [Hospital] was a peer appearing before itself and
being reviewed by itself, thereby qualifying for the privilege of
confidentiality. (4) Did the [trial] court err in not reviewing the
Hospitals alleged confidential file [i]n [c]amera to resolve
conflicts in evidence resulting from discovery responses summarized by the
Respondent from the alleged confidential file and witness testimony? (5) Did
the trial court err in not granting the Princes JNOV?
We do not read any of these
issues to include an argument on the issue of waiver. In addition, we have
reviewed the brief Prince filed in the prior appeal of this case, which was
included in the record compiled for the present appeal, and have found nothing
that addresses the issue of waiver. We therefore hold Prince failed to appeal
the trial courts refusal to consider his argument that Hospital had waived its
protection under section 40-71-20. See Rule 207(b)(1)(B) (Ordinarily,
no point will be considered which is not set forth in the statement of the
issues on appeal.).
In making this determination, we further hold the
trial court erred in stating the issue of waiver was so
intertwined with the issue of confidentiality of the file that it was inherently
preserved for review. Waiver is defined as
an intentional relinquishment of a known right. Lawrimore v.
American Health & Life Ins. Co., 276 S.C. 112, 114, 276 S.E.2d 296, 297
(1981) (emphasis added). It follows that one seeking to establish a waiver of
confidentiality inherently recognizes the confidential nature of the
information being sought.[2]
2. We further
agree with Hospital that the trial court, in finding Hospital had waived the
right to invoke section 40-17-20, had exceeded the scope of authority granted
by this Court in its prior opinion.
Once
this Court issues a mandate to a trial court, the trial court is vested with
jurisdiction only to the extent conferred by the appellate courts opinion and
mandate. S.C. Dept of Soc. Servs. v. Basnight, 346 S.C. 241,
250-251, 551 S.E.2d 274, 279 (Ct. App. 2001) (quoting 5 Am. Jur. 2d Appellate
Review § 784, at 43 (1995)). It is
the duty of the trial court to follow the decision of the appellate court. Ackerman
v. McMillan, 324 S.C. 440, 443, 477 S.E.2d 267, 268 (Ct. App. 1996). Thus,
it is error for a trial court to consider an issue that was not included in the
remand instructions. Id.
Following
a remand, the trial court acquires jurisdiction to enforce the judgment and
take any action consistent with this Courts ruling. Id. Matters
decided by the appellate court cannot be reheard, reconsidered, or relitigated
in the trial court, even under the guise of a different form. Id.
In
the present case, this Court previously concluded Hospitals Quality Assurance
Committee was within the purview of section 40-71-10 to the extent the
committee operated pursuant to bylaws approved by Hospital. Nevertheless, the trial court was
specifically instructed to examine the Quality Assurance Committee file to
determine if it warrants confidentiality and if there was any evidence not
protected by the confidentiality statute. When conducting the in camera
review, however, the trial court went beyond the remand instructions to find
that Hospital waived its privilege to claim the confidentiality of the Quality
Assurance [F[ile.
We recognize that this Court in its prior opinion stated that
[i]n camera reviews should be used liberally to guard against even a mere
possibility a miscarriage of justice will occur, and directed the trial court
to use its discretion when reviewing the file. Nevertheless, for the reasons
we stated in the preceding section of this opinion, we hold the remand
instructions did not authorize the trial court to consider whether Hospital had
waived its right to assert the file was confidential. The possibility that such
a privilege may have been waived does not affect a determination of whether or
not the evidence in the file was protected under section 40-71-20 in the first
place.
3. In reviewing the appealed
order in this case, we note the trial court, in addition to finding Hospital
had waived the protections of section 40-71-20, concluded the committee file
does contain relevant evidence that is not protected by the confidentiality
statute. The order, however, does not describe the evidence or explain why it
is not protected by section 40-71-20. Accordingly, we remand the matter to the
trial court to set forth the specific portions of the Quality Assurance
Committee file that are subject to discovery as well as the reasons these
portions are not confidential under section 40-71-20.
4. Based on our disposition
of this appeal, we do not address Hospitals remaining argument concerning
whether its disclosure of certain information under Rule 33, SCRCP, in fact
constituted a waiver of the protection of section 40-17-20. See Futch
v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d
591, 598 (1999) (ruling an appellate court need not review remaining issues
when its determination of a prior issue is dispositive of the appeal).
CONCLUSION
We hold the trial
court, in reviewing the Quality Assurance Committee file pursuant to this
Courts prior opinion, exceeded its authority in finding Hospital had waived
its right to invoke the protections of South Carolina Code section 40-71-20.
The issue of waiver was neither raised in the prior appeal nor mentioned by
this Court when it decided the matter. Nevertheless, because the trial court
on remand found the committee file does contain relevant evidence that is not
protected by the confidentiality statute, we again remand the matter to the
trial court to set forth the evidence in the file that is subject to discovery
and to explain why, consistent with the language in this Courts prior opinion,
this evidence is not protected by the confidentiality statute.
REVERSED AND REMANDED.
HEARN,
C.J., KITTREDGE and THOMAS, JJ., concur.
[1] South Carolina Code section 40-71-10 exempts members
of certain professional committees from tort liability. S.C. Code Ann. §
40-71-10 (2001 and Supp. 2007). Under section 40-71-20, [a]ll proceedings of and
all data and information acquired by the committee referred to in Section
40-71-10 in the exercise of its duties are confidential unless a respondent in
the proceeding requests in writing that they be made public. Id. § 40-71-20(A). Section 40-71-20 further provides in pertinent part that
[t]hese proceedings and documents are not subject to discovery, subpoena, or
introduction into evidence in any civil action except upon appeal from the
committee action. Id. The statute further provides, however, that
[i]nformation, documents, or records which are otherwise available from
original sources are not immune from discovery or use in a civil action merely
because they were presented during the committee proceedings . . . . Id.
[2] We further reject Princes
allegation that the judge who had presided at the trial of the matter had
intertwined the waiver issue with confidentiality by denying [Princes motion
to compel], holding he had all ready [sic] ruled on the issue of
confidentiality. We have reviewed those portions of the transcript cited in
Princes brief to support this assertion and were unable to discern how the
judges rulings could be interpreted to equate a ruling on the issue of
confidentiality with a ruling on waiver.