State Ex Rel. Chandra v. Sprinkle

678 S.W.2d 804, 1984 Mo. LEXIS 330

• Court: Supreme Court of Missouri
• Decided: September 11, 1984
• Docket: 65400
• Status: Published

Opinions

RENDLEN, Chief Justice.

Original proceeding in mandamus by which relator Ingrid Chandra, next friend of Anjali Kathryn Chandra, seeks to require the respondent trial judge, in an underlying medical malpractice action, to compel discovery of records of peer review and other committees in the possession of defendant Independence Sanitarium and Hospital. Relator argues the records are relevant to the treatment provided her infant daughter and to evaluation of the facilities and staff of the Hospital’s emergency room and, therefore, are subject to discovery under Rule 56.¹ The Hospital’s position is that the requested documents and information come under a “self-evaluative peer review privilege” and, therefore, are not discoverable.

Relator filed suit alleging medical malpractice arising from medical treatment provided her daughter, then a one month old infant, in the emergency room of the Hospital. The allegations presented are as follows: The infant had exhibited worsening symptoms of a cold, respiratory congestion and cough and was taken by her parents to the Hospital’s emergency room. The family’s pediatrician “on call,” defendant Dr. Thomas Hansen, was contacted by telephone at another hospital, told of her condition and he ordered a chest x-ray immediately for the infant. While in the Hospital’s X-Ray Department, the child suffered respiratory arrest. Her father, an internist who has staff privileges at the Hospital, administered cardiopulmonary resuscitation, rushed the child back to the emergency room and requested emergency medical treatment.

It is alleged the physician on duty in the Hospital’s emergency room, Dr. Mark Ludwig, failed to respond and provide such emergency treatment. Emergency medical equipment used in resuscitation of infants was either unavailable or could not be located by personnel on duty in the emergency room. Dr. Hansen was contacted again by telephone but took no action to insure the child was being provided emergency treatment. Concerned that no physician had responded to the emergency, the infant’s father telephoned defendant Dr. Robert Clothier, another of the child’s regular pediatricians. Dr. Clothier did not respond personally or take action to insure that the child was being provided emergency medical treatment.

Dr. Hansen arrived at the Hospital’s emergency room approximately one hour after the child’s respiratory arrest. Upon his arrival, Dr. Hansen neither ordered nor performed emergency medical treatment. An ambulance and attending physician from another facility were called to provide treatment. Relator alleges that as a result of the negligence of the defendant physicians, professional corporations and the Hospital, the infant suffered prolonged and severe cerebral hypoxia (lack of oxygen to the brain) resulting in permanent brain damage, cerebral palsy with seizure disorders, functional blindness and permanently retarded physical and mental development.

Approximately one month following these events, the Hospital appointed an “Ad Hoc Committee,” at the request of the infant’s father, to investigate and report on the medical treatment provided to the child in the emergency room. Relator has propounded discovery requests to the Hospital seeking information and documents concerning the “Ad Hoc Committee,” the factual information it gathered and its conclusions as to the child’s treatment. Relator has also requested discovery of records of other Hospital “peer review” and standing committees relevant to the treatment provided the infant and concerning the facilities and staff of the Hospital’s emergency room. The Hospital has refused to comply with these requests claiming a “peer review privilege.” Respondent, Hon. Richard P. Sprinkle, then Judge of the Circuit Court of Jackson County, denied Relator’s motion to compel discovery from defendant Hospital. This proceeding in mandamus followed. The preliminary order in mandamus entered November 22, 1983, is now made permanent.

In the absence of a statute establishing a peer review privilege, the critical self-evaluation privilege here asserted by the Hospital “at the most remains largely undefined and has not generally been recognized.” Bergman v. Kemp, 97 F.R.D. 413, 416 (W.D.Mich.1983) quoting Lloyd v. Cessna Aircraft Company, 74 F.R.D. 518, 522 (E.D.Tenn.1977).² Nonetheless, the Hospital argues on behalf of respondent for recognition of such privilege, be it absolute or qualified. The Hospital urges that § 537.-035, RSMo 1978,³ which provides qualified immunity from action for damages for medieal personnel participating in peer review, must be “extended” to protect peer review documents and materials from discovery if the peer review system is to be productive. The Hospital also asserts that this Court is faced with compelling public policy considerations requiring recognition of a peer review privilege. According to the advocates of this privilege, unless the evaluative proceedings are afforded confidentiality, the peer review system will not be effective in maintaining and improving quality health care.

Section 537.035 provides no basis for recognition of a peer review “privilege.” The legislature has chosen to foster honest peer review by protecting the participants from liability rather than by declaring peer review documents to be privileged from discovery.⁴ We are not unmindful of the policy underlying § 537.035. Clothing peer review participants with immunity from liability eliminates their apprehensions of recrimination for good faith appraisal of colleagues’ performance and thus removes the major obstacle to beneficial, honest peer review. See “Medical Peer Review Protection In The Health Care Industry,” 52 Temp.L.Q. 552, 571-75 (1979) and Hall, “Hospital Committee Proceedings and Reports: Their Legal Status,” 1 Am. J.L. & Med. 245, 254-64 (1975). The Hospital maintains that the statutory protection providing qualified immunity for committee participants is not enough, and requests this Court to add an additional feature to clothe the records with privilege from discovery not provided by the legislature. It argues the statute must be “extended” beyond its terms to shield all peer review materials from discovery or, at least, to protect the independent opinions of peer review committees; otherwise, it is argued, the peer review system will not be effective in improving the quality of health care. We are not persuaded that the clear language of the statute can be extended to establish the “privilege” requested here, and believe, when the Hospital’s public policy argument for confidentiality is measured against relator’s right to discovery under Rule 56, the Hospital’s public policy argument must fail.

In Klinge v. Lutheran Medical Center of St. Louis, 518 S.W.2d 157, 167 (Mo.App.1975),⁵ the peer review process was recognized as an analysis system designed to evaluate the quality of medical care. The court expressed the belief the system exists for the benefit of the public and those committed to the care of a hospital. “We believe that an internal staff examination ... assures to the individual patient that degree of professional treatment to which he is entitled and is to the benefit and welfare of the public that the hospital is conducted at a highly professional level.” Id. It follows from this expression of the public policy underlying the system that it is intended to provide benefit for those presently receiving health care whose care may thereafter be scrutinized by peer review as well as those patients who thereafter come for treatment and whose care may be enhanced by the earlier peer review activity. Can it be said that the knowledge of periodic peer review which may follow the doctors’ or Hospital’s activities will not encourage improvement of professional conduct? We think not for the system is designed for evaluation and improvement of the health care program for those patients now under care as well as patients in the future. See “Medical Peer Review Protection In The Health Care Industry,” supra. It would appear that the public interest lies with discoverability and not with confidentiality of these records. Claims of privilege present an exception to the usual rules of evidence and are carefully scrutinized. Ex Parte McClelland, 521 S.W.2d 481 (Mo.App.1975). Impediments to the discovery of truth are afforded validity in relatively few instances in the common law. See Nazareth Literary & Benevolent Inst. v. Stephenson, 503 S.W.2d 177, 179 (Ky.1973). We find no expression of policy in either the general law of evidence or in the statutes according any protection of confidentiality in the situation presented here on public policy grounds.

Rule 56.01(b) provides that parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, unless the court otherwise limits discovery in accordance with the rules. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. It should be noted that the hospital has not sought a protective order of the sort that may be available under Rule 56.01(c), but chose instead to assert the “privilege” and our holding here does not reach nor affect the rights of the parties in the discovery process except as to the question of this alleged “privilege.”⁶ We need not address relator’s argument that the hospital has “waived” any privilege by voluntarily conveying defendant Dr. Ludwig’s statement before the committee to the child’s father and by communicating in a letter the general findings of the committee, see Bergman v. Kemp, supra, and Davidson v. Light, 79 F.R.D. 137 (D.Colo., 1978), because we hold no peer review privilege exists under Missouri law for factual statements.

The preliminary order in mandamus is made permanent.

HIGGINS, GUNN, BILLINGS and BLACKMAR, JJ„ and HOUSER, Senior Judge, concur. WELLIVER, J., dissents in separate opinion filed. DONNELLY, J., not sitting.

1 . Rule 56.01, General Provisions Governing Discovery, provides that unless otherwise limited by order of the court, see Rule 56.01(c), parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. Rule 56.01(b)(1).

2 . Peer review, as the name implies, concerns the professional review and evaluation of health care services. Most hospital peer review is the creature of federal and state licensing and funding requirements. The Joint Commission on Accreditation of Hospitals, the primary accrediting agency in this country, requires the governing body of each accredited hospital to provide for a system of peer review. The actual peer review function is delegated by the hospital to members of its medical staff assisted by hospital administrative personnel. See Joint Commission on Accreditation of Hospitals, Accreditation Manual for Hospitals (1982).

Missouri has similar peer review requirements in effect in the form of regulations. The chief executive officer of every hospital is responsible to alert the governing body of the hospital, and the chief of its medical staff, to any failure to conform with hospital policies regarding professional standards of medical staff members. State regulations also require that the peer review function be delegated by the hospital to the members of its medical staff and that medical staff members carry out peer review of medical care provided by the hospital. See 13 C.S.R. 50-20.021(2) (1982).

3 . All subsequent references are to RSMo 1978 unless otherwise indicated. Section 537.035 provides, inter alia, that no licensed physician, surgeon, dentist, podiatrist, optometrist or pharmacist shall be liable in damages to any person subject to actions of a peer review committee for any action taken by the committee or by a person acting in his official capacity as a member of such committee when the action was taken within the scope and function of the committee if such action was taken without malice and was supported by credible evidence. The statute provides qualified immunity to these professionals while acting, within the scope of their practice, as authorized members of a peer review committee "functioning for the sole purpose of maintaining the professional standards of those engaged in the practice of the ... professions, or for maintaining professional standards in a hospital_’’

According to a recent survey, thirty-four states, Missouri included, have enacted statutes providing some form of immunity to physicians who participate in the activities of duly constituted review committees. See Hall, "Hospital Committee Proceedings and Reports: Their Legal Status,” Am.J.L. & Med. 245, 262 n. 53 (1975).

4 .The privilege of confidentiality, sought here by the Hospital, is separate and distinct from the privilege of immunity from civil liability, established by § 537.035. See "Medical Peer Review Protection In The Health Care Industry," 52 Temp.L.Q. 552 (1979).

5 . The Klinge case considered extension of the physician-patient privilege of § 491.060(5) to use of patients’ records in hearings concerning a surgeon’s competency conducted by a hospital review committee. The court of appeals held that the privilege set forth in the statute did not obtain under the circumstances of that case because the review procedure exists to benefit the patient and the public. The public’s interest in the disclosure of the information was found to outweigh the patient’s (and the physician’s) interest in concealment.

6 . Use of the protective order has been discussed in other peer review cases. See Wesley Medical Center v. Clark, 234 Kan. 13, 669 P.2d 209 (1983); Nazareth Literary & Benevolent Inst. v. Stephenson, supra; Kenney v. Superior Court, 255 Cal.App.2d 106, 63 Cal.Rptr. 84 (1967).