203 So. 3d 541
La. Ct. App.2016Background
- Dr. Bryant George (and his wholly‑owned practice Dura Mater, Inc.) relocated to St. Patrick Hospital in 2009 under contracts that provided hospital privileges, office space, and personnel.
- After complaints about operating room allotments and staffing, hospital proctors later (Sept. 9, 2009) alleged Dr. George was inebriated; his privileges were suspended and later not reinstated by the hospital’s Peer Review Committee.
- George and Dura Mater sued the hospital for breach of contract and unfair trade practices, alleging the hospital treated him differently from similarly situated physicians and acted with discriminatory/malicious motives.
- During discovery plaintiffs sought peer‑review‑related records to show disparate treatment; the hospital obtained a protective order relying on Louisiana peer‑review confidentiality statutes (La. R.S. 13:3715.3 and La. R.S. 44:7).
- Plaintiffs moved to declare the statutes (or parts) unconstitutional and to lift the protective order; the trial court denied that motion, and plaintiffs sought supervisory writs to the appellate court.
- The appellate court set aside the protective order and remanded for in camera review of the requested materials consistent with Louisiana Supreme Court precedents, declining to decide the statutes’ constitutionality.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiffs properly raised a constitutional challenge | Constitutional attack was raised sufficiently in a post‑pleading motion and is before the court | Attack was not properly pleaded in the petition/supplemental petitions and therefore not before the court | Court found the constitutional claim was properly before it because motions are included among pleadings under La. C.C.P. art. 852 |
| Whether the protective order should bar discovery of peer‑review materials sought to show disparate treatment | Peer‑review statutes cannot be used to shield relevant, discoverable evidence that shows discriminatory/retaliatory motive and denies meaningful access to courts | Statutes (La. R.S. 13:3715.3 and 44:7) protect peer‑review records from discovery; protective order was appropriate | Court held statutes are not blanket shields; remanded for trial court to inspect requests in camera and determine which items (if any) are privileged |
| Scope of peer‑review privilege under La. R.S. 13:3715.3 & La. R.S. 44:7 | Plaintiffs: requested materials are relevant factual evidence, not privileged self‑critical analysis | Hospital: requested records are within statutory confidentiality and thus immune from discovery | Court applied Supreme Court precedent: factual, otherwise‑discoverable material is not per se privileged; trial court must determine scope via in camera review |
| Whether to decide the statutes’ constitutionality now | Plaintiffs urged courts to find the statutes unconstitutional because they deprive meaningful access to the courts | Attorney General and hospital urged courts to uphold statutes as constitutional and to reject plaintiffs’ attack | Court declined to reach constitutionality; remanded for factual parsing of discovery requests first (constitutional issue may be moot thereafter) |
Key Cases Cited
- Smith v. Lincoln General Hospital, 605 So.2d 1347 (La. 1992) (statutes protect committee records but do not bar discovery of otherwise discoverable factual material; trial court should perform in camera review)
- Smith v. Our Lady of the Lake Hospital, Inc., 639 So.2d 730 (La. 1994) (peer‑review immunity protects actions taken without malice and within committee scope; immunity does not attach when actor steps outside duties)
- Gauthreaux v. Frank, 656 So.2d 634 (La. 1995) (reaffirmed need for trial courts to re‑examine discovery requests and perform in camera review to determine privilege applicability)
- State v. Brenan, 772 So.2d 64 (La. 2000) (statutes are presumed constitutional; party challenging constitutionality bears burden and must show lack of reasonable relation to public good)
- Granger v. Christus Health Central Louisiana, 144 So.3d 736 (La. 2013) (statutory peer‑review protections are not absolute; members can lose immunity if they act with malice or beyond committee function)
- Johnson v. Welsh, 334 So.2d 395 (La. 1976) (general rule that unconstitutionality of statute must be specially pleaded, but pleading definition includes motions)