SER Wheeling Hospital, Inc. David A. Graphery, M.D. v. Hon. Ronald E. Wilson, Judge
236 W. Va. 560
| W. Va. | 2016Background
- Ms. Mills underwent a thyroidectomy by Dr. Ghaphery at Wheeling Hospital and later sued for medical negligence, lack of informed consent, and negligent credentialing after sustaining bilateral vocal cord paralysis.
- Ms. Mills sought discovery of roughly 350 hospital documents; Wheeling Hospital asserted the peer review privilege (W. Va. Code § 30-3C-3), HIPAA, and relevancy objections.
- The Ohio County Circuit Court reviewed disputed documents in camera and ordered most produced, finding many documents either relevant to negligent-credentialing claims or subject to the original-source exception to the peer review privilege.
- Wheeling Hospital petitioned this Court for a writ of prohibition to prevent enforcement of the disclosure order as to documents it claimed were peer-review privileged.
- The Supreme Court of Appeals granted the writ as moulded: it held several specific documents privileged (including Dr. Ghaphery’s reappointment applications and identified quality/cost review materials), and remanded for further in camera review because Wheeling Hospital’s privilege log lacked required specificity for many documents.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the peer review statute shields the challenged documents from discovery | Mills: many records were not created exclusively for peer review and are available from original (non-privileged) sources; thus not protected | Wheeling Hosp.: documents are part of credentialing/peer-review files and disclosure would chill peer review; privilege applies | Court: privilege protects documents created exclusively for or by a review organization and used solely in peer review; records originating outside or used outside peer review are not privileged |
| Applicability of the “original source” exception | Mills: hospital business/regulatory records used in credentialing are available from original sources and therefore discoverable | Wheeling Hosp.: even if used in credentialing, some documents were generated for peer review and remain privileged | Court: if information is available from an original non-privileged source, it is discoverable from that source but not from the review committee; the origin/use test controls |
| Sufficiency of hospital’s privilege log to support privilege claims | Mills: privilege log is inadequate; does not show documents were created exclusively for peer review | Wheeling Hosp.: produced a privilege log but used ambiguous entries ("author or origin") | Court: hospital bears burden to prove privilege; privilege log must identify each document and state origin (created solely for/by committee?) and specific use (used exclusively by committee?) plus description and legal basis |
| Appropriateness of writ of prohibition to block enforcement of disclosure order | Mills: discovery ruling is reviewable on appeal; writ unnecessary | Wheeling Hosp.: disclosure of privileged materials warrants extraordinary relief because harm would be irreparable and not correctable on appeal | Court: issuance appropriate here — granted as moulded because the circuit court clearly erred as to some documents and failed to obtain sufficient detail for others; directed supplemental procedures |
Key Cases Cited
- Young v. Saldanha, 189 W. Va. 330, 431 S.E.2d 669 (1993) (recognizing statutory peer review privilege and its policy purpose)
- State ex rel. Charles Town Gen. Hosp. v. Sanders, 210 W. Va. 118, 556 S.E.2d 85 (2001) (hospital credentialing applications created solely for committee are peer-review privileged)
- State ex rel. Shroades v. Henry, 187 W. Va. 723, 421 S.E.2d 264 (1992) (materials otherwise available from original sources are not immune merely because presented to review organization)
- State ex rel. Brooks v. Zakaib, 214 W. Va. 253, 588 S.E.2d 418 (2003) (original-source and waiver exceptions to peer review privilege explained)
- State ex rel. HCR Manorcare, LLC v. Stucky, 235 W. Va. 677, 776 S.E.2d 271 (2015) (discusses requirements for asserting privilege and the Court’s supervisory role)
- Powell v. Community Health Sys., Inc., 312 S.W.3d 496 (Tenn. 2010) (origin-and-use test: privilege covers documents created for committee and used for peer review; materials originating outside are not privileged)