State ex rel. Kirksville Missouri Hospital Co. v. Jaynes

328 S.W.3d 418, 2010 Mo. App. LEXIS 1494
CourtMissouri Court of Appeals
DecidedNovember 9, 2010
DocketNo. WD 72684
StatusPublished
Cited by1 cases

This text of 328 S.W.3d 418 (State ex rel. Kirksville Missouri Hospital Co. v. Jaynes) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. Kirksville Missouri Hospital Co. v. Jaynes, 328 S.W.3d 418, 2010 Mo. App. LEXIS 1494 (Mo. Ct. App. 2010).

Opinion

CYNTHIA L. MARTIN, Judge.

This is an original proceeding in prohibition. Relator Kirksville, Missouri, Hospital Company, LLC, d/b/a Northeast Regional Medical Center (“NERMC”) seeks to prohibit the respondent, the Honorable Ralph H. Jaynes, visiting judge in the Circuit Court of Boone County, Missouri, from allowing plaintiffs, Francis and Janie Watson (“Watsons”) to discover documents relating to the credentialing of Dr. John Bailey (“Dr. Bailey”) in an underlying medical malpractice and negligent credentialing action. Forty pages of documents were ordered produced, following in camera review. NERMC claims all of these documents are protected from discovery by section 537.035.4,1 the peer review statute.

Our preliminary writ of prohibition is dissolved.

Factual Background

Dr. Bailey submitted an application for surgical privileges in back surgery to NERMC in mid-1997. Temporary privileges were afforded Dr. Bailey. At or near the same time, a question arose about whether Dr. Bailey had successfully completed training with the Columbia Spine Fellowship. NERMC’s Director of Surgery expressed a concern that Dr. Bailey had been granted temporary privileges before this issue had been resolved. He proposed submitting Dr. Bailey’s first twenty-five spinal instrumentation cases to an independent, fellowship trained, spine surgeon for review.

NERMC’s Executive Committee approved this recommendation and retained Dr. John Flood, an independent spine surgeon practicing in Michigan, for this purpose. Dr. Flood reviewed twenty cases involving spine surgeries performed by Dr. Bailey. Dr. Flood prepared a written report, which he submitted to NERMC. NERMC contends the report was sought as a part of considering whether to afford Dr. Bailey permanent privileges.

The Watsons filed a lawsuit against Dr. Bailey and NERMC in 2004 claiming Dr. Bailey negligently treated and performed surgery on Mr. Watson. The Watsons further claim that NERMC was negligent in granting Dr. Bailey staff privileges to perform spine surgeries. The Watsons learned of Dr. Flood’s report and took Dr. Flood’s deposition on April 29, 2008.2 Numerous objections were asserted by NERMC in reliance on the peer review privilege described in section 537.035. The Watsons filed a motion for enforcement of discovery relating to the objections, which was thereafter granted in part and denied in part. Dr. Flood’s second deposition was conducted on September 18, 2009, with a Special Discovery Master, John Hutcherson, in attendance.

Before Dr. Flood’s second deposition, the Watsons filed a motion for enforcement of discovery or in the alternative, an in-camera review, relating to specific [421]*421documents alleged to involve Dr. Flood’s report and identified on a privilege log prepared by NERMC. Specifically, the Watsons sought production of documents bearing Bates Numbers NERMC/PR 000001 through 0000066 which the Wat-sons alleged involved Dr. Flood’s recommendations to NERMC concerning Dr. Bailey’s credentialing and his knowledge and ability to perform complicated spine surgery.

The motion to enforce discovery was considered by the Special Discovery Master. The Special Discovery Master entered a report on January 15, 2010. The report indicated that the documents Bates Numbered NERMC/PR 000001 through 000007, 0000016 through 0000019, and 0000057 had already been produced by agreement. The report indicated that the Special Discovery Master had reviewed the remaining documents in camera. The Special Discovery Master granted the motion to enforce discovery for the documents Bates Numbered 000008 through 000015, 000020 through 000043, and 000058 through 000065. The Special Discovery Master advised that the documents ordered produced should be redacted to remove any patient identifying information protected by HIPPA.

The Special Discovery Master specifically found that the documents ordered produced were not protected as peer review pursuant to section 587.035.4, although the report did not provide an explanation for this conclusion.

At our request, the forty pages of documents ordered produced, and thus at issue in this proceeding, were delivered by NERMC for our in camera review on October 12, 2010. The contested documents fall into three categories: (1) Dr. Flood’s report generated following review of several of Dr. Bailey’s patient files; (2) Dr. Bailey’s response to Dr. Flood’s report; and (3) minutes from Executive Committee Peer Review meetings discussing Dr. Flood’s report.3

Analysis

Section 537.035.4 provides:

Except as otherwise provided in this section, the interviews, memoranda, proceedings, findings, deliberations, reports, and minutes of peer review committees, or the existence of the same, concerning the health care provided any patient are privileged and shall not be subject to discovery, subpoena, or other means of legal compulsion for their release to any person or entity or be admissible into evidence in any judicial or administrative action for failure to provide appropriate care. Except as otherwise provided in this section, no person who was in attendance at any peer review committee proceeding shall be permitted or required to disclose any information acquired in connection with or in the course of such proceeding, or to disclose any opinion, recommendation, or evaluation of the committee or board, or any member thereof; provided, however, that information otherwise discoverable or admissible from original sources is not to be construed as immune from discovery or use in any proceeding merely because it was presented during proceedings before a peer review committee nor is a member, employee, or agent or such committee, or other person appearing before it, to be prevented from testifying as to matters within his personal knowledge [422]*422and in accordance "with the other provisions of this section, but such witness cannot be questioned about testimony or other proceedings before any health care review committee or board or about opinions formed as a result of such committee healings. The disclosure of any interview, memoranda, proceedings, findings, deliberations, reports, or minutes to any person or entity, including but not limited to governmental agencies, professional accrediting agencies, or other health care providers, whether proper or improper, shall not waive or have any effect upon its confidentiality, nondiscoverability, or nonadmissibility.

(Emphasis added.) NERMC argues that the documents ordered produced involve a credentials committee’s investigations,4 minutes, reports, and deliberations about Dr. Bailey’s prior surgeries and thus “concern the health care provided to any patient.” NERMC also argues that redacting patient information does not protect or preserve the peer review process. Finally, NERMC argues that Dr. Flood is not an “original source” as that phrase, is used in section 537.035.4.

The Respondent argues that not all functions of credentials committees are exempt from discovery and that they are not seeking discovery concerning the health care provided to Dr. Bailey’s patients but, rather, discovery concerning Dr. Bailey’s abilities as a spine surgeon. Respondents argue that the findings and recommendations given by a person who is hired to guide a hospital in making a credentialing decision is not protected by section 537.035.4 as that person is an “original source.”

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Related

STATE EX REL. KIRKSVILLE MISSOURI HOSP. CO. v. Jaynes
328 S.W.3d 418 (Missouri Court of Appeals, 2010)

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Bluebook (online)
328 S.W.3d 418, 2010 Mo. App. LEXIS 1494, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-kirksville-missouri-hospital-co-v-jaynes-moctapp-2010.