*1 reasons, foregoing taking even For the the district court’s broad dis-
into account
cretion, cannot affirm its decision we trial on the Loehrs’ defa-
order a second collection claims wrongful
mation debt nor Neither misconduct
against Mettille. shown, if it anything, was
prejudice counsel was able
appears that Loehrs’ in Mettille’s exhibit exploit the defects 1.1004(2) Therefore, rule
successfully. “clearly trial untena-
ground for new Prods., Lehigh Clay
ble.” See omitted). (internal marks quotation
at 544 here effectuated substantial verdicts 6.904(3)(c).
justice. R.App. P.
Y. Conclusion. reasoning differs
Although our some- appeals,
what from that the court abused dis-
conclude the district court its Therefore, ordering
cretion in new trial. appeals
we affirm the court of reverse granting court’s order a new
trial, directing instead i*emand jury
enter verdicts.
COURT OF APPEALS DECISION
AFFIRMED; DISTRICT COURT AND RE-
JUDGMENT REVERSED
MANDED. CAWTHORN, Appellant,
Dennis L.
CATHOLIC HEALTH INITIATIVES Mercy Hospital
IOWA CORP. d/b/a Center, corporation, Appel
Medical
lee.
No. 10-1013. Iowa.
Supreme Court of
Dec.
file at trial object use of those documents following our reversal and re- mand for retrial. conclude the law of hospital case did not bar the from changing course our opin- because earlier ion did not expressly impliedly decide the admissibility of the credentialing file. We also find that Iowa Code section 147.135(2)(2009) only sets forth not a priv- ilege, but separate also a rule of inadmissi- bility, so principles of waiver that might be applicable in other contexts do not govern here. reasons,
For these we find that neither law of the case nor waiver foreclosed the hospital and the from revisit- ing the admissibility of Hence, file. we affirm district court’s order granting summary judgment to the hospital. Background
I. and Facts Proceed- ings.
Dr. Daniel performed Miulli two back surgeries on in May Dennis Cawthorn 2000. After suffered complica- tions from he surgeries, those filed suit in Miulli, May against Dr. Catholic Corp. Health Mercy Initiatives Iowa d/b/a Hospital (Mercy), Medical sev- Center eral other peti- defеndants. Cawthorn’s tion set forth medical malpractice claims of Gary Jensen, R. Simpson, Fischer of against Dr. negligent Miulli and credential- Abels, P.C., Bouslog, Fischer & Des ing against Mercy. particular, Cawt- Moines, Norris, Corydon, Verle W. for alleged horn investigate failed appellant. qualifications negligently Miulli’s properly, (Jack) Thomas A. John Finley, Miulli, D. surgical extended privileges Hilmes, Alt, Hoch of Finley, Eric G. perform allowed Miulli to continue sur- Smith, Scharnberg, Craig, Hilmes & Gaff- geries having after reason to know that P.C., Moines, ney, for appellee. Des questions extensive had been raised and appropriateness
existed concerning the MANSFIELD, Justice. some of surgeries procedures he was performing. This case comes before us the second 2, 2004, time. We On February must determine whether a hos- Cawthorn served a pital previously produced request physi- production for “a complete copy cian’s file and relied on that Dr. Miulli’s credential 31, 2004, such claim. Mercy respond- support evidence file.” On March its motion with number of supported ed: it re- previously produced had objected to because Request This *3 The credentialing. to Dr. lating Miulli’s requires production of documents Blink, the to the review” was “peer Judge which are motion denied privilege in Iowa Code 147.135. With- case. judge prеsiding trial then over the objection, this defen- waiving out said proceeded June The case to trial in late named affirmatively states that it is dant early July Judge Reis. At and Dr. with Defendant co-defendant trial, Mercy objected admission County No. Miulli another case—Polk to an Board of evidence Iowa Christy involving 87281 [the case] C.L. (IBME) investigation Medical Examiners against this Defen- allegations similar disciplinary hearing concerning Dr. and eredentialing/supervi- re: negligent dant objections overruled Mercy’s Miulli. were discovery requested sion. Similar was Mercy was evidence admitted. The Honorable Richard and resisted. object Dr. did not to the introduction of Compelling Blane his G. entered Order file credentialing Miulli’s into evidence 22, Discovery May This dated 2003. and, fact, offered into numer- evidence Report” “Compliance Defendant filed its file. ous from that documents (and privilege log) and furnished the from Dr. Miulli’s credential documents jury The in favor of returned verdict requested file and information Cawthorn, $10,590,000 in actual awarding non-priv- Judge which Blane found were damages allocating thirty percent Order, Re- ileged. Compliance The seventy percent the fault to log and are be- port/privilege Dr. Miulli. The district court ordered ing provided.1 agreed new trial to a unless Cawthorn Judge order consistent with Blane’s reducing remittitur verdict case, al- Christy Mercy produced $1,190,000. most the entire contents of Dr. Miulli’s stipulated in this A credentialing parties appealed: case. Both ar- Cawthorn had been a few protective order entered gued punitive damages his claim for should before, days providing that all documents been Mer- jury, have submitted ... produced by Mercy to Cawthorn “shall cy argued the IBME evidence should have ... be used in manner or fashion 2007, In November on excluded. present litiga- outside context of this review, further court the dis- this affirmed destroyed tion” termi- upon and would be trict court’s refusal to submit Cawthorn’s nation the case. claim, but on punitive damage reversed 2004, Mercy’s cross-appeal. We concluded the April On moved summary IBME evidence was confidential under judgment. Mercy argued 272C.6(4) have been recognize Iowa does of action section and should cause and, negligent alterna- excluded. We remanded the case for a tively, that competent had no new trial. Cawthorn v. Catholic Health Although Mercy appealed plaintiff 1. received an unfavorable limitations. The and this ruling Christy part. part case as to the discovera- reversed in affirmed file, Miulli, bility Christy of Miulli's Dr. 692 N.W.2d (Iowa 2005). ruling appellate protection did not seek obtain an on was nor Christy disposed parties issue. The neither raised nor mentioned summary judgment appeal. based on the statute of this court in the Corp., Initiatives holds such review material is inad- Procedendo issued Springer missible. See v. Weeks & Leo Inc., January Co., (Iowa 475 N.W.2d 1991). The constantly law is developing. the court decid- May appeals change Circumstances the passage with Finley Hospital, ed of time. The defendant is not bound Ct.App.2009), holding that [by] trial strategy of the first trial in a hospital’s credentialing the contents of a new trial. file fell the scope within of Iowa Code protection, section 147.135’s to However, *4 the district court declined to the extent those documents werе the grant summary judgment Mercy to at that custody of a committee. point. the explained, As “It ap- is propriate for the judge trial to rule on the September Mercy a new filed admissibility of to prior evidence determin- summary judgment motion for case. this Thus, ing sufficiency the of evidence.” the Mercy Relying Day, argued on the con- court allowed Cawthorn to gather time previously tents of Dr. produced Miulli’s in support other evidence his negligent file were under credentialing inadmissible claim, documents, credentialing including “evidence section 147.135. Without these by gathered plaintiff from sources other maintained Cawthorn lacked credentialing thаn the file well as prima plain- sufficient evidence establish a testimony tiffs expert bearing facie case. issues of negligence proximate cause.” motion, Cawthorn the it arguing resisted 30, 2010, objecting April was too late for to be On Mercy renewed its docu- credentialing summary judgment argued, admission of motion. It Day grace provided ments. Cawthorn denied that “Despite period by [the] Rather, change in the he intervening law. which to gather Court Plaintiff was argued, “Nothing Ap- evidence, the Iowa Court admissible is not aware of Day peals said in created new law that any further efforts to obtain Plaintiff newly made this argument available.” any evidenсe outside of the exhibits he offered into at the previously evidence first 11, 2010, January On court2 trial.” resisted the renewed Cawthorn Mercy’s summary ruled on mo- by incorporating motion earlier his resis- tion. It stated: 18, 2010, May tance. the district On is not doc- Defendant barred motion, granted Mercy’s reasoning court3 waiver, estoppel trines of or law as follows: asserting case from only no There is doubt that the evidence privilege of Iowa Code Section 147.135 plaintiff prove proposed admissibility from alleged negligence defendant’s fits with- previously file that it categories of evidence held inad- produced objection pursu- Day. Cawthorn ant missible While companion to an order entered in a Finley original case. v. The the trial court’s denial Hosp., (Iowa App.2009) summary judg- N.W.2d 898 an inter- defendant’s motion for vening clarification of the law ment to be consistent with this change appears omitted], clearly entered since remand that conclusion also rec- [footnote assigned point, Judge presiding 2. At this the case had was now over the Staskal Judge Chief Gamble. matter. that can be drawn from plaintiff that the able inferences possibility ognizes the Wernimont, Wernimont v. other admissible record. generate could some 2004). 186, 189 claim, including his N.W.2d support evidence to ap- This testimony. рossibility expert However, ap- does not here Cawthorn reason the court denied to be the pears the district court’s conclusion peal Now, motion. summary judgment fact was no issue of material genuine there out, discovery points as the defendant to be once the was found has failed to plaintiff closed has Rather, is chal- inadmissible. evi- other such produce uncover or ad- lenging ruling district court’s that the has plaintiff means dence. This missibility. evi- the admission of “When affirmative, admissible produce failed to of a depends interpretation on the dence as to that creates fact issue evidence statute, errors we review for correction of negligent. whether the defendant was Palmer, law.” State possibility that there is no and, there- at trial plaintiff prevail could *5 fore, is entitled to sum- the defendant III. Discussion. petition. the mary judgment dismissing A. the Both Law of Case. He that appeals. contends Cawthorn extensively Dr. Miulli’s parties relied on case, of law of the under doctrine trial. credentialing during file the 2004 arguing was from precluded argues the law of Cawthorn therefore that inadmissi- credentialing documents were raising, from barred ble, authority court lacked sustaining, the district from an ob court Alternatively, Cawthorn to exclude them. jection credentialing to thе of the file use right that to ob- argues waived its However, remand. of the case law credentialing ject admission applies only doctrine that were issues voluntarily producing them appeal. raised reached first offering in the first them as evidence 317, City Asbury, Bahl v. 725 N.W.2d of “ trial. (Iowa 2006) (indicating ‘ques that a 321 passed tion not on is not included’ under Scope Review.
II.
and Standards of
(quoting
the doctrine”
Lone Tree
re
Dist.,
522,
parties
Cmty.
The
that our review of a
Sch.
159
526
agree
N.W.2d
(Iowa 1968)));
Mesic,
v.
Iowa
ruling
district court’s
on motion for sum-
Mass
258
(1966)
1306,
389,
mary judgment
for
law.
142 N.W.2d
is
errors
Moines, 714
Kragnes
City
(holding
v.
Des
that the law of the case doctrine
of
Summary
“only
questions
applies
N.W.2d
637
to those
thаt were
judgment
appropriate
properly
appellate
if the record
[the
court]
is
material
genuine
passed
shows there
no
issue of
consideration and
on” and that “[a]
is
moving pai'ty
question
entitled to
on”
raised in
passed
fact and the
proceedings);
Paglia,
of law. Iowa R. Civ.
later
State v. Di
judgment
a matter
(1956)
97, 100,
moving party
P.
has the
Iowa
summary
(holding
constitutionality
to show it is entitled to
that where
of
burden
City
prior
v.
Des Moines
a statute had been determined in a
judgment. Hunter
of
Auth.,
appeal,
Hous.
the law of
case barred
Mun.
N.W.2d
2007).
continuing
that
argue
will view the record in defendant from
We
unconstitutional,
nonmoving
favorable to the
the statute was
even on
light
most
sim-
party
grant
party
grounds).
appeal
and will
all reason-
new
Here
first
course,
upon
not touch
section 147.135’s
Of
the district
ply did
court
ob-
must
file,
applicability
credentialing
implement
and serve and
both the letter and
litigate
mandate,
parties
spirit
Okoboji
were free to
City
thus
Court,
issue on remand.
Dist.
(Iowa 2008), but the district court did so
believe,
opinion, we
previous
Our
previous opinion
here. Our
did not ad-
only
two
self-explanatory.
considered
admissibility
dress the
first,
investiga
issues:
whether the IBME
directly
under section 147.135either
and,
admitted;
have been
sec
tion should
by implication.
ond,
punitive
whether
should
damages
have been submitted to the
Cawth
jury.
also argues
the district
orn,
par
decline do sо. records. restrict the use of review routing appeal, of an to the proper about brief, only used term legislature is The not this reply repeated even when 147.135(2), fif- has but also in at least argument. Cawthorn section not sufficient See, position regarding e.g., Iowa Code to his teen other statutes. support failed 124.553(3), 2.32(10), 35B.10, 80A.17(1), nor did authority appeal, §§ Day by citing 507.14(1), 155A.39(4), 252.25, 455B.484A(2), the dis- argument an preserve he 508E.15(7)(c), 521E.8(1), wrongly 508E.7(5)(c), decided. trict court that (“Failure 542.7(10), 521F.9(1), 522B.ll(6)(a), 6.903(2)(p)(3) Iowa P. R.App. an authority support of issue to cite issue.”). We of that
be deemed waiver analyzes under majority The this case therefore not reach issue. do waiver. privilege of commоn law terms majority’s analysis is I do not think the IV. Conclusion. The did intend to legislature correct. reasons, we affirm foregoing For words “privileged use the confidential” the district court. of waiver, privilege, to refer the law of AFFIRMED. My review confidential communications. lan- incorporating the same of statutes WIGGINS, J., except justices All concur 147.135(2) as me to guage section leads specially who concurs. that, legislature uses conclude when the WIGGINS, (concurring special- Justice language, referring privi- this is ly)- waiver, lege, or confidential communica- Rather, by the this lan- agree write I with tions law. use of specially. I to concur analysis law of that thеse majority guage, legislature its intended un- agree protected I also with the out- make the material issue. statutes come; however, disagree major- party and that no I with available ity’s protection of section or court can waive the afforded analysis Code 147.135(2) (2009). Therefore, legislature majori- chose in these statutes. 661, 747, (1998) (holding solely by hospital creden 584 consideration 749-50 tialing protected by health provision that of staff committee is materials privileges by priv privilege”). Hosp. review care review But see are covered Huston, Meeks, ilege); Cnty. App.3d Lowndes v. Tenan v. 165 Ohio Auth. Valdosta and of 71, 185, 549, 521, (2009) (2006) (stating that S.E.2d 555 285 Ga. 678 N.E.2d Ohio, сurrently (holding Georgia peer privi "the law written that the review courts, legislature lege interpreted does does not extend to routine grant hospitals impenetrable wall of information does not involve evaluation in fact that quality efficiency secrecy surrounding the of doc medical actual tors”); services); Grody, Registration A.2d v. Hall Troescher v. Bd. in Med. Health, (Pa.Super.Ct.2005) (holding creden that mark 454 Mass. 910 N.E.2d (2009) tialing (holding product were immune from discov work documents ery Pennsylvania Pro under the Peer Review the various committees involved in credential Act); ing protected Hosp.-The v. but used such tection Mem. Woodlands McCown, (Tex.1996) (holding necessarily similarly pro 927 S.W.2d committees are not tected); Enright, statutory peer privilege Hosp. Faith State ex rel. Texas’s (Mo. 1986) (holding credentialing process); extends initial 706 S.W.2d privilege Hosp. ex does not cov State rel. Charles Town Gen. Sand Missouri’s
ers, (2001) findings er committee and deliber W.Va. S.E.2d credentials (holding they specifically application "an issuance ations concern the for the unless provided patient). privileges health care to a renewal of staff that is created *11 By privilege, finding law of did ty’s attempt legislature to use the intend waiver, or to incorporate waiver, confidential communications privilege, thе law of misplaced because analyze statute is confidential communications in section legislature referring to the law 147.135, the analysis quite becomes simple waiver, or commu- privilege, confidential straightforward. We should not com- in these nications statutes. plicate area of the law the legislature simple. made protected documents under 147.1357 are not discoverable or admissi- Furthermore, in any proceeding.
ble I obligation possessor it is the of the
believe protected preserve
of the documents to documents,
confidentiality of those even if will support position
the documents possessor protected documents. therefore, Day Finley Hospital, we will leave that issue for another (Iowa Ct.App.2009), appeals court of day. broadly interpreted pro- which materials are party tected under 147.135. Neither raises Day's interpretation; correctness of broad