DYE v ST JOHN HOSPITAL AND MEDICAL CENTER
Docket No. 192292
Court of Appeals of Michigan
July 10, 1998
230 Mich. App. 661
Docket No. 192292. Submitted November 3, 1997, at Detroit. Decided July 10, 1998, at 9:35 A.M. Leave to appeal sought.
Moira K. Dye brought an action in the Wayne Circuit Court against St. John Hospital and Medical Center, Arturo F. Paz-Esquerre, M.D., also known as Arturo Paz, M.D., and Arturo Paz, M.D., P.C., alleging injury resulting from Dr. Paz’ malpractice and that St. John was negligent in extending staff privileges to Dr. Paz. The court, John A. Murphy, J., entered an order requiring St. John to produce certain documents from the credentials file of Dr. Paz that was compiled by the hospital‘s credentials committee when Dr. Paz sought staff privileges. The Cоurt of Appeals granted St. John leave to appeal from the court‘s order and stayed the proceedings below.
The Court of Appeals held:
1. The information sought by the plaintiff is privileged and not subject to court subpoena pursuant to
2. The materials in the file sought were collected for or by the credentials committee and the confidentiality provisions of subsection 20175(8) and § 21515 apply.
3. 1967 PA 270 does not generally mandate disclosure of any infоrmation by a review entity and does not provide authority in this case for the proposition that disclosure of the credentials file is mandatory. Even if Act 270 could be interpreted as mandating disclosure, disclosure would be required only with respect to information released for one of the purposes found within § 2 of the act, as amended.
Vacated and remanded.
CAVANAGH, J., dissenting, stated that
1. HOSPITALS — PHYSICIANS AND SURGEONS — RECORDS — REVIEW ENTITIES.
The Legislature has imposed a comprehensive statutory ban on the disclosure of any information collected by, or records of the proceedings of, committees assigned a professional review function within hospitals and health facilities; materials relating to the provision of staff privileges are not outside the purview of thе statutes (
2. HOSPITALS — PHYSICIANS AND SURGEONS — RECORDS — REVIEW ENTITIES.
Materials submitted to a review entity of a hospital or health facility by a doctor or submitted on the doctor‘s behalf by colleagues, references, and so forth, as part of the review entity‘s requirements with respect to the materials it seeks to review before granting the doctor staff privileges are “collected for or by” the review entity for purposes of
3. HOSPITALS — PHYSICIANS AND SURGEONS — RECORDS — REVIEW ENTITIES.
Disclosure of information by a review entity of a hospital or health facility generally is not mandated by 1967 PA 270; the act immunizes from liability an entity that chooses to disclоse information where the disclosure is for one of the purposes enumerated in
Kepes, Wine & McNeilage, P.C. (by Carol A. McNeilage) (Donald M. Fulkerson, of Counsel), for the plaintiff.
Kitch, Drutchas, Wagner & Kenney, P.C. (by Susan Healy Zitterman and Terese L. Farhat), for St. John Hospital and Medical Center.
Before: BANDSTRA P.J., and CAVANAGH and MARKMAN, JJ.
BANDSTRA, P.J. Defendant1 St. John Hospital and Medical Center appeals by leave granted the trial court‘s order requiring it to produce certain documents from the credentials file of Dr. Arturo Paz-Esquerre, also known as Dr. Paz. We vacate and remand.
Plaintiff Moira Dye first consulted Dr. Paz with complaints of pain in her head and neck, tinnitus in her left ear, and dizziness. Dr. Paz diagnosed Arnold-Chiari malformation and performed surgery on plaintiff at defendant hospital. Following the surgеry, plaintiff began experiencing spasms in the back of her head, decreased sensation in her left foot, persistent numbness in her left leg, and difficulty walking. Plaintiff continues to suffer from a lack of sensation in her left leg and recurrent hydrocephalus and therefore requires additional medical and surgical treatment.
Plaintiff filed a motion to compel the production of Dr. Paz’ personnel/credentials file. In its response to plaintiff‘s motion, defendant attached a copy of its bylаws and affidavits of Dr. Frank Wilson, its senior vice president of medical affairs. According to these uncontested documents, Dr. Wilson is in charge of physician credentialing on behalf of defendant‘s credentials committee, which was established pursuant to the hospital‘s bylaws “to review the professional practices in the hospital for the purpose[s] of reducing morbidity and mortality, improving the care provided patients in the hospital, and to insure that physicians are granted privileges consistent with their individual training, experience and other qualifications.” The functions of the credentials committee include review of the qualifications, competence, and performance of health care professionals seeking to work at defendant hospital. Dr. Paz’ credentials file consists of letters of recommendations, peer evaluations, and other information collected by or for the
At a hearing regarding plaintiff‘s motion, the trial court ordered defendant to submit the credentials file for an in camera review. After that review, the trial court ordered defendant to produce twenty-four documents from the file, reasoning only that they were not “in the category of peer review material.”2 The documents ordered produced included questionnaires and reference letters prepared by persons who evaluated Dr. Paz’ qualifications, competence, and performance in relation to his seeking and maintaining staff privileges with defendant hospital. Defendant‘s motions for reconsideration аnd for a stay of the production order were denied by the trial court. Defendant filed an emergency application for leave to appeal, which this Court granted along with a stay of the proceedings below.
Whether production of the documents at issue is barred by statute is a question of law that we review de novo. See In re Jagers, 224 Mich App 359, 362; 568 NW2d 837 (1997). Defendant primarily asserts that the materials sought by plaintiff are privileged pursu-
Defendant contends thаt the statutory sections quoted above demonstrate that the Legislature has imposed a comprehensive ban on the disclosure of any information collected by, or records of the proceedings of, committees assigned a professional review function within hospitals and health facilities. Therefore, defendant asserts, because the requested materials were collected by or for its credentials committee, which exercises a professional review func-
Plaintiff advances two arguments why these statutory sections should not apply to the credentials file at issue here. Plaintiff first argues that the statutes apply only to documents gathered for “retrospective” analysis of a past incident or issue raising concerns about medical personnel or hospital procedures. Plaintiff argues that the statutes do not apply to the “prospective” issue addressed by the credentials committee here, whether to extend staff privileges to Dr. Paz. Thus, plaintiff contends the statutes do not provide confidentiality to Dr. Paz’ application or the supporting documents within the file at issue.
Plaintiff bases this argument on Gallagher v Detroit-Macomb Hosp Ass‘n, 171 Mich App 761, 769; 431 NW2d 90 (1988), where a panel of our Court stated that “[i]n determining whether the information . . . is privileged, the court should consider . . . whether the committee‘s function is that of retrospective review for purposes of improvement and self-analysis and thereby protected, or part of current patient care.” The Court in Gallagher cited Monty v Warren Hosp Corp, 422 Mich 138, 147; 366 NW2d 198
Comparing the Davidson and Bredice precedents, as directed by Monty, we reject plaintiff‘s conclusion that materials relating to the provision of staff privileges are outside the purview of the statutes. The only import of these precedents is that certain “current patient care” issues are so pressing and immediate that the provision of confidentiality is unnecessary to facilitate open discussion by a reviewing committee. In Davidson, for example, the plaintiff sought production of an “Infection Control Report” prepared following discovery of an outbreak of gangrene at the defendant hospital:
The committee involved here does not evaluate hospital policy generally, but presumably is called upon only when an infection problem exists, as was the case here. At such times, the source of an infection is investigatеd and activity is undertaken to eradicate the infection. This role is not such as to be susceptible to inhibition due to the discoverability of the committee‘s reports. [Davison, supra at 140.]
Monty and Gallagher might be construed as creating an exception to the statutes’ confidentiality provisions for information relating to the investigation and remediation of a specific and immediate health care
This conclusion finds support in Attorney General v Bruce, 422 Mich 157; 369 NW2d 826 (1985) (hereafter Bruce), a decision handed down by our Supreme Court shortly after Monty.7 The Court in Bruce noted that hospitals are required by statute to establish peer review committees and that “[i]ncluded in their duties is the obligation to review the professional practices of licensees, granting staff privileges consistent with each licensee‘s qualifications.” Id. at 169. After discussing the rationale for protecting the confidentiality of peer review committees involved in the extension of staff privileges, the Court specifically noted that “[i]n enaсting §§ 20175(5) and 21515, the Legislature provided a strong incentive for hospitals to carry out their statutory duties.” Id. at 169-170. Although arguably dicta, we find this reasoning persuasive; we conclude that the statutes at issue here, the same statutes discussed in Bruce,8 protect against disclosure of information relating to Dr. Paz’ application for staff privileges at defendant hospital.
We find Marchand to be distinguishable. Plaintiff argues that documents supporting Dr. Paz’ original application for staff privileges and the continuing review of those privileges were not “collected for or by” the credentials committee, having been submitted by others. However, Dr. Paz submitted these materials, or had them submitted on his behalf by colleagues, references, and so forth, pursuant to expectations or dirеctives of the credentials committee. As in any situation regarding application for professional employment, Dr. Paz was aware of the requirements of the committee with respect to the credentials, endorsements, and other materials it wanted to review before granting staff privileges. In that sense, materials in the file relating to Dr. Paz’ application for
Plaintiff further argues that, notwithstanding the protections afforded to the credentials file by subsection 20175(8) and § 21515 of the Public Health Code, 1967 PA 270 explicitly mandates release of the documents at issue here.
We disagree, first, because Act 270 does not generally mandate disclosure of any information by a review entity. An argument similar to plaintiff‘s was rejected by our Supreme Court in Bruce, supra at 171-172. The Court reasoned that Act 270 “protects persons, organizations, and entities that choose to disclose information . . . .” Id. at 171-172 (emphasis in original). They are “immunized from liability” as long
The subpoena indeed may have requested information for permissible purposes [under § 2 of the statute] . . . . Release of such information, however, is clearly discretionary according to
MCL 331.531 ; MSA 14.57(21) which provides that “[a] person, organization or entity may provide information.” The act does not provide authority for the proposition that disclosure to the deрartment is mandatory. [Id. (emphasis in original).]
For the same reason, Act 270 does not provide authority in this case for the proposition that disclosure of the credentials file is mandatory.10
Plaintiff‘s argument also fails for a second reason. Even if, notwithstanding Bruce, Act 270 might somehow be interpreted as mandating disclosure, disclosure would only be required with respect to informa-
The relеase or publication of a record of the proceedings or of the reports, findings, and conclusions of a review entity shall be for 1 or more of the following purposes:
*
*
*
(e) To review the qualifications, competence, and performance of a health care professional with respect to the selection and appointment of the health care professional to the medical staff of a health facility. [
MCL 331.532(e) ; MSA 14.57(22)(e).]
We disagree. We conclude, on the basis of the plain and ordinary meaning of this language, that the disclosure authorized is only for the purpose of reviewing the qualifications, competence, and performance of a health care professional during the process of determining whether the health care professional should be selected for and appointed to the medical staff of a health facility. In other words, subsection 2(e) refers only to the release of information for the purpose of assisting a health care facility in determining whether a health care professiоnal has the qualifications, competence, and performance needed to be selected and appointed to a medical staff position. We conclude that it has nothing to do with the release of information to a plaintiff in a malpractice or negligent hiring lawsuit.
We vacate the trial court‘s order that required the disclosure of documents contained within Dr. Paz’
MARKMAN, J., concurred.
CAVANAGH, J. (dissenting). I respectfully dissent. As the majority states, pursuant to
The release or publication of a record of the proceedings or of the reports, findings, and conclusions of a review entity shall be for 1 or more of the following purposes:
*
*
*
(e) To review the qualifications, competence, and performance of a health care professional with resрect to the selection and appointment of the health care professional to the medical staff of a health facility.
The Legislature did not specify to whom the review entity materials could be released; it stated only that release “shall” be for the purposes set forth in the statute.
In my view, this restrictive interpretation is not supported by the text of the statute. The statute clearly provides that records relating to a rеview entity‘s decision whether to grant a doctor staff privileges may be released for review of the doctor‘s qualifications, competence, and performance.1 Judicial construction of a statute is not permitted where the plain and ordinary meaning of the language is clear. Tryc v Michigan Veterans’ Facility, 451 Mich 129, 136; 545 NW2d 642 (1996).
Moreover, the majority ignores the fact that, in addition to her claim of malpractice, plaintiff also alleges that defendant St. John Hospital and Medical Center was negligent in extending staff privileges to Dr. Paz. The evaluation of this claim specifically calls for a review of “the qualifications, competence, and performance of a health care professional with
The trial court found that approximately half of the documents in Dr. Paz’ personnel/credentials file were subject to discovery. However, because the record does not reflect that the trial court considered