*1 663 Memorial FEYZ v MERCYMEMORIALHOSPITAL (Calendar 5). May 2, July Argued Docket No. 128059. No. Decided 24, 2006. M.D., Feyz, brought B. an action in the Monroe Circuit Court Bruce against Mercy Hospital, private hospital, and members staff, relating seeking injunctive damages relief and to his of its probation by plain- placement the The on indefinite defendants. contract, complaint rights, included civil and tort claims. The tiffs court, Costello, Jr., J., granted Joseph summary disposition A. for defendants, citing judicial in the the doctrine of nonintervention staffing statutory private hospitals, the decisions of as well as immunity arising peer referral of the from the review committee plaintiff psychological plaintiff appealed. The The for evaluation. (Murray, PJ., Appeals, Court of and JJ. concur- Sawyer Smolenski, ring dissenting part), part, part in affirmed reversed part, trial and remanded the matter to the court for further (2005). proceedings. App The Court of immunity statutory peer apply concluded that review does not rights claims, alleged rights civil that an civil violation was not review, scope peer alleged rights an within the of civil Court violation was “a malicious act.” The also held that prevent plaintiff pur- nonintervention doctrine did not claims, suing rights generally pre- his civil nor did the doctrine plaintiffs Finally, and tort claims. the Court clude contract private staffing subject hospital’s held that a decisions are to the judicial apply any to the same level review would actions private entity. Supreme granted The other Court the defendants’ appeal. application Mich for leave to opinion by joined by In an Justice Chief Justice Taylor Young, Supreme Corrigan and Justices Court held-. Markman, judicial supplement 1. The doctrine of nonintervention cannot immunify granted by Legislature supplant statutory through peer review statute. There is no basis to general justify application of a nonintervention doctrine to hospital. staffing private decisions of a statutorily judicial prescribed 2. review over the The codified limited review is narrow. Mich 663 [July- process, permitting judicial review of the only participants when act with malice. Malice, 331.531(4), purposes 3. be can established person supplying when a information or data to a knowledge falsity does so with of its or with reckless *2 falsity. entity disregard A of its truth or review is not immune from knowledge falsity, if it acts with of the or with reckless disregard falsity, of the truth or of information or that it data upon communicates or which it acts. hospital protected entity peer A4. is not a review under the immunity immunity granted by peer review statute. The immunity only review statute extends to the communications made, them, participants peer and the who make in the review process, by statutorily as well as to the communicative acts taken a protected peer entity acting scope, review within its not to the hospital staffing that makes the ultimate decision on credential questions. joined by Justice Justices con- Cavanagh, Weaver Kelly, curring part dissenting part, agreed justification in that no judicial recognizing exists this state for nonintervention applied private doctrine and that the should not be doctrine to a hospital’s general staffing decisions, but dissented from the ma- jority’s definition of “malice” as used MCL 331.531. “Malice” principles should not be defined under the of “actual malice” used Rather, in defamation law. the term should be defined to mean the “intent, justification excuse, wrongful without to commit a act” disregard person’s legal rights.” or “reckless of the law or of a To ignores statutory language. define the term otherwise apply appropriate trial court should be directed on remand to legal definition of “malice.” vacated; Appeals judgment Court of case remanded to the trial proceedings. court for further Staffing — — Hospitals 1. Decisions Judicial Nonintervention Doctrine. judicial nonintervention, suggests The doctrine of which that the staffing private hospital generally beyond decisions of a are review, statutory peer is inconsistent with the repudiated. review established MCL 331.531 and is — — — Hospitals Immunity Exceptions 2. Peer Review Malice. Malice, purposes statutory hospital peer process, of the review person supplying peer exists when a information or data to a entity knowledge falsity review does so with of its or with reckless disregard falsity; peer entity of its truth or is not immune review knowledge falsity, liability if it or with acts with falsity, disregard of the truth or of the information or data reckless (MCL 331.531[4]). upon that it communicates or which it acts — — 3. Hospitals Immunity Peer Entities. Peer Review Review hospital protected A is not a under the review immunity statute; immunity granted by made, only statute extends to the communications them, process, participants who make in the by statutorily protected well as to the communicative acts taken entity acting scope, not to the within its staffing questions. makes the decision on credential ultimate plaintiff. L. Herron for the Jeffrey (by Kitch Drutchas Valitutti & Sherbrook Wagner Susan Zitterman and Karen B. for the Healy Berkery) defendants.
Amici Curiae: (by
Clark Hill PLC Robert L. and Paul C. Weyhing *3 Smith) Michigan for Association. Osteopathic
Kerr, Weber, and PLC (by Russell Joanne Geha Swan- Schulte), son and Daniel J. Michigan for State Medical Society. Cox, Attorney General,
Michael A. Thomas L. Casey, General, Robinson, Solicitor and Ron D. Assistant At- torney General, Michigan for the Rights Civil Commis- the Michigan Department Rights. sion and of Civil Hall, Render, Killian, Lyman, (by Heath & PLLC Philbrick), Michigan Michael J. for Health & Hospital Association. physician J. Plaintiff is a with staff privileges
YOUNG, at Mercy Hospital. defendant This lawsuit dispute nursing arises from an internecine over orders Mich 663 for intake at the patient defendant Plaintiffs hospital. insistence on to use requiring nursing staff his special standing hospital’s orders instead of defendant conflict standing eventually orders led to a with defen- dant and a of plaintiffs profes- review sional practices disciplinary as well as action.
Plaintiffs challenge review conducted some of the defendants and the resulting disciplinary action against requires taken him that we consider the scope immunity provided for In review. order to promote patient effective care in hospitals, Legisla- 331.531, ture enacted MCL commonly referred to as Michigan’s peer immunity review purpose statute. The of statutory peer is to foster the free exchange of in investigations information of hospital practices and practitioners, thereby patient reduce mortality improve patient care hospitals. within The Legislature obviously intended protect peer participants liability participation this process. communicative and evaluative In order to create an environment in which such candid explora- quality tions of the of hospital patient occur, care can other among protections, prohibited the discovery of communications made within the granted immunity from all participate who in peer review without “malice.”
The primary question posed appeal this is the scope judicial review of peer permitted under A secondary 331.531. question is whether judicially created “doctrine of nonintervention” —a doc- trine suggesting staffing of private decisions hos- pitals generally are beyond *4 compatible review —is the peer with review immunity statute. Finally, we must also construe the undefined peer statutory term “malice.” Memorial peer Because the statute establishes from qualified immunity liability for review commu nication and who participants provide such communica tions, justification recog we conclude that there is no nizing the nonintervention doctrine that the lower courts in considering arising this state have claims applied review. therefore hold that this doctrine We cannot or supplement supplant statutory immunity Furthermore, granted by Legislature. our there is no basis, statutory otherwise, justify application of nonintervention doctrine to general staffing decisions of a private hospital. that, also hold We consistent with the objects immunity statute, malice should be defined as set forth the Court of Appeals Veldhuis Thus, v Allan.1 we hold that malice can be established a “person when information or data supplying [to entity] knowledge does so with of its falsity or with disregard falsity. reckless of its truth or Similarly, a review is not immune from if it acts knowledge of the falsity, or with reckless disregard of the truth or falsity, of information or data it which communicates or which it upon acts.”2
Accordingly, judgment we vacate the of the Court of Appeals and remand this case to the Monroe Circuit Court for further proceedings consistent with this opinion.
FACTSAND PROCEDURALHISTORY3
Plaintiff
a physician
privileges
with staff
defen
at
dant Mercy
Hospital.4
Plaintiff was dissatis
App
fied with defendant standard requiring patients’ prescribed nurses to document dosages by copying medications and either the label on a list of medi prescription copying their containers or by patients. consequence, plaintiff cations carried As directing created own orders specialized nursing his very specific plaintiffs staff to obtain information from incoming patients drug about their use. prescription staff, directed the nursing part Plaintiffs orders the admissions for his a far patients, assume more aggressive investigative regarding patient role medication. orders,
Defendants disapproved plaintiffs standing nursing and instructed the them. In ignore staff to several cases where the disregarded plaintiffs nurses special hospital’s orders followed defendant nurs- directives, ing plaintiff “incident prepared reports” referring such cases to review committees for investigation Further, of “potential medical errors.” plaintiff began making patient notations records that Mercy Hospital organization cal Staff of Memorial is “the of health care providers provide patients” Mercy who health care to at defendant Hospital. Memorial 5 According plaintiffs complaint, plaintiffs standing required orders following: nurses to do the family bring A. Have the in home medications. (if alert) patient belong B. if Ask the the containers to the container(s) not, pharmacy
medications. If send the to the identification. patient C. Ask the to look at medications inside the his/her taking container and tell how has been them at home. he/she frequency D. List the dose and taken on medications nursing patient actually taking assessment form as the them at home. Opinion Court “[p]revent orders were intended to disregarded his past.” medication errors serious against proceedings Defendants initiated medical plaintiffs complete based on failure plaintiff nursing that the staff follow records6 and his insistence comply than standing his orders rather An investigatory ad hoc committee reviewed policy. findings conduct and released its to the plaintiffs Rely- defendant medical executive committee of staff.7 ing report, on the ad hoc committee’s the executive *6 plaintiff committee referred Health Professionals (HPRP) for a examina- Recovery Program psychiatric temporary tion.8 Plaintiff was on placed probation. alleges writing Plaintiff that he ceased his standard because, in defendant compromise, hospital gave orders plaintiff pharmacy implement use of the consult service to It that orders plaintiffs special appears plaintiffs orders. regarding patient medication overburdened the staff of service, the pharmacy hospital eventually consult so the Thereafter, arrangement. plaintiff discontinued this re- sumed placing specialized patients’ his orders medical charts. As a defendants took consequence, further action on indefinite placed plaintiff probation. Plaintiff con- practice tinues to medicine and retains at privileges de- fendant restricted hospital, using but is defendant hospital’s pharmacy insisting consult service or on com- pliance his orders. special with 6 comply hospital policy Plaintiff admits that he refused to requiring physicians sign transcriptions of their verbal orders. solely Because this case was decided on motion on the basis of plaintiffs pleadings, investigatory it is not clear whether the ad hoc duly “peer committee and the executive committee were authorized necessary appeal entities. It is not to the resolution of this review” express opinion we determine their status. We therefore no on this issue. 8 See MCL 333.16223. MICH663 complaint
Plaintiff filed a alleging violations of the Rights Act,9 Persons with Disabilities Civil the Americans Act,10 1973,* with Disabilities the Rehabilitation Act of and 42 USC 1983 and invasion of privacy; breach duties; fiduciary public and breach of contract. granted The trial court summary disposition to defen dants, all concluding that of defendants’ actions arose out of the therefore defendants were immune from under MCL 331.531. The court, as an alternative for granting basis summary disposition, relied on the doctrine of noninter vention, provides which that courts will not review private hospitals’ staffing decisions.
The Court of
Appeals,
split decision,
partially
reversed the trial court’s
of summary
award
disposition
defendants,12
favor of
concluding
peer review
immunity did not apply
statutory
rights
civil
claims.
The majority concluded that an alleged
rights
civil
violation was not within the scope
review and
that an alleged
rights
civil
violation
“a
was malicious
act.”13 Furthermore,
the majority held that the nonin-
seq.
MCL 37.1101 et
seq.
42 USC 12101 et
1129 USC 794.
*7
(2005).
699;
App
Appeals
This Court granted application defendants’ for leave to appeal.16
STANDARD OF REVIEW The trial granted court defendants summary dispo- 2.116(C)(8). sition under MCR A trial court’s grant of summary disposition is reviewed de novo.17A motion for summary disposition brought pursuant to MCR 2.116(C)(8) legal tests the sufficiency of the complaint allegations on the of the pleadings alone.18 When a challenge to a complaint made, the motion tests whether the complaint states a law, claim as a matter of and the motion granted should be if no factual develop- ment could possibly justify recovery.19
Questions of statutory interpretation,
such as the
proper construction of the peer review immunity stat-
ute, are reviewed de novo.20 Our role
give
is to
effect to
the intent of the Legislature,
as expressed by language of the statute.21
apply
We
clear and unambigu-
ous
written,
statutes as
under the assumption that
Legislature intended the meaning of the words it has
used in the statute.22 In defining
words,
statutory
we
must consider the “plain meaning of the critical word or
16
(2005).
ANALYSIS hospi- commanded Michigan, In has to review to review committees tals establish morbidity in “redue[e] order to “professional practices” provided care in the mortality improv[e] and and That must “include the patients.”25 for hospital care and the necessity provided and quality in occurring and deaths complications preventability turn, hospitals use evalu- hospital.”26 In staffing making ations when decisions.27 23 237; Valley Ward, 230, v Sun Foods Co 460 Mich 596 NW2d 137, 145; 501; (1999), States, quoting Bailey v United US 116 S Ct (1999). 2d 472 133 L Ed 24 MCL 8.3a. pertinent provides, part: MCL 333.21513 owner, governing body hospital operator, The and of a licensed
under this article:
(d)
physicians
practice
Shall assure that
and dentists admitted to
hospital
organized into a
to enable
in the
are
medical staff
an effective
professional practices
hospital
purpose
for
review of the
in the
reducing morbidity
mortality
improving
provided
the care
and
and
hospital
quality
patients. The
include the
and
review shall
necessity
complications
provided
preventability
and
care
hospital.
occurring
and deaths
in the
26Id.
Bruce,
Attorney
AND THE OF JUDICIAL REVIEW OF PEER REVIEW judicial The a judicially nonintervention doctrine is created doctrine providing common-law that courts will staffing not in a private hospital’s intervene decisions. The that to gave concerns rise this doctrine are twofold. The premised, part, doctrine is on the distinction between public private hospitals. public While hospi- tals are impheating state actors adherence constitu- tional such as requirements, affording due physicians, private similarly are not hospitals constrained they are Therefore, because not state actors.28 it was posited private hospital’s staffing decisions merit less scrutiny. doctrine also founded on the belief courts
are ill-equipped staffing decisions be- *10 skills cause courts lack the specialized knowledge and adjudicate required hospital disputes. to staffing The judicial doctrine, nonintervention therefore, is a pruden- tial grounded doctrine not in statutoiy or constitutional provisions that courts have invoked to adjudicating resist involving claims hospital staffing and decisions decision-making process.29 v Shulman Washington Hosp
In
Ctr,30
a seminal case
describing
doctrine,
the United States District
obligation
in
professional practices
their
is the
duties
to review the
of
licensees, granting
privileges
qualifica-
staff
consistent with each licensee’s
(internal
omitted).
tions.” Id. at 169
citations
28
Genesys
Sys,
Derderian v
364,
Health Care
App
376-377;
263 Mich
(2005).
(2004),
Relying nonintervention the doctrine of adopted City Hosp.31 plaintiff Garden *11 Hoff- Hoffman for him staff denying a private hospital man sued that the decision claiming, part, hospital’s in privileges, capricious and unrea- deny “arbitrary, was privileges to 31 (1982). 773; App Mich 321 810 115 NW2d 676 Mich 663 475 Opinion the Court ,”32 The in the trial prevailed sonable... defendant motion for On summary disposition. appeal, court on its urged to plaintiff Appeals adopt the Court position private fiduciary duty holds a hospital make staffing reasonably public its decisions plaintiff argued The the defendant hospi- good.33 ” tal’s decision was “so ‘affected with a public interest’ subject judicial that it be should Hoff- review.34 panel rejected and, man argument affirming this court, adopted trial position articulated Shulman that a private “hospital’s denying reasons for staff privileges” governing and “the decisions of the bodies of private subject judicial are not hospitals review.”35
In subsequent cases, Court of Appeals on, relied expanded, as well as judicial nonintervention doc- trine set forth in For example, Sarin v Hoffman.36 Samaritan Health Court affirmed Ctr,37 summary disposition of the plaintiff doctor’s breach of arising contract and tort alleged claims out of an breach bylaws. of the hospital’s Sarin held that the doctrine precluded judicial only hospital’s review not of a private “ decision on staff but privileges, also ‘the method decision,’ which the personnel reached that ”38 because review of those claims require would 32Id. at 776.
33
(1963).
Hosp,
See
v
40
Greisman Newcomb
NJ
A2d 817
192
34Hoffman, supra at 777.
779,
778,
citing Shulman, supra.
Id. at
Regualos
Hosp,
455,
Community
App
460-461;
See
140 Mich
(1985);
Michigan Community Hosp, supra;
NW2d 723
Veldhuis Central
Hosp Detroit,
App 170;
(1985);
Dutka v Sinai
Mich
whether 331.531 private cause that the created no such Court of concluded statute plaintiffs breach of claim also dismissed the contract of action. Court nonintervention doctrine. on the basis (citation omitted). Long, supra 586-587 at 42Id. at 586. entity, greater of a not to the scru-
obligations private tiny public institution.”43 Fundamental to the doctrine majority’s reinterpretation and retreat that only Long from earlier case law was the fact was binding precedent.44 Therefore, Long’s sug- it embraced gestion private hospitals might subject be statu- tory rights civil claims. With of con- regard breach claims, tract Feyz majority liability may held be *13 the imposed long as as breach of contract claim would subject private hospital greater liability not a than to another private entity what would face. Court of have Appeals panels
While utilized variants of the doctrine of nonintervention for years, some this recognized Court has never or adopted the doctrine. Defendants urge adopt this Court to the doctrine hold that the trial court properly dismissed plaintiffs nonstatutory claims because those require claims a of the hospital’s staffing review decisions and the meth- employed in reaching ods those decisions. We decline to do judicially so because this created nonintervention doctrine is statutory gov- inconsistent with the regime the erning peer process review enacted by Legisla- ture.
The statutorily prescribed scope judicial review peer process over the very review is The Legis narrow. judicial lature codified limited review of the peer review process, judicial permitting only peer review when act participants Contrary review with malice.45 to the Sarin, outcomes of cases such as Hoffman, Long, 43Feyz, supra at 723. 7.215(J)(1). Id.; see MCR However, Long, MCL 331.531. as the Court stated supra, private MCL 331.531 does not create a cause of action malice. exception immunity. peer an
Malice is to review Once a defendant has constituting peer immunity, stated sufficient facts review MCR 2.111(F)(3), plaintiff put a to has forward sufficient malice evidence of to Mercy Feyz to immunity hospitals, afforded common-law which under the entity review protected itself not a hospital is immunity statute.46 peer enacted review legislatively permitted unqualified peer have could the participants it beyond or extended review courts did not do so. Our process, but in the choice. The nonintervention respect policy this must formulations,47 all precludes doctrine, which, in some might claims that contract and tort judicial review of review, is inconsistent to relationship some have protection of mandate that covers legislative The doc- only. communicative made choice supplant policy courts to permits trine “ ‘ cannot substi- Because Legislature. “[c]ourts legislative body on for that of the opinions tute their ’ ”48 to recognize we decline policy,” questions doctrine.49 nonintervention separate exception immunity. is from the This burden invoke legal plaintiffs burden state a viable claim. 331.531(2) qualify groups specifically delineates which duly ap immunity. a entities” While “review entitled designated pointed peer review committee of *14 Therefore, hospital 331.531(2)(a)(iii), hospital the is not. the under immunity granted advantage under MCL take of the cannot immunity 331.531(3)(b), grants only for acts which to entities scope. communications within their 47 See, e.g., Sarin, supra at 795. 48 147, 153; (1999), quoting People McIntire, Mich 102 v 461 599 NW2d Young, EJ., Appeals dissenting opinion Court of in that case the in the (1939). 499, Detroit, 509; Cady 805 See also quoting 289 Mich 286 NW Beaudrie, expand judicially supra 140, to at this Court refused the where expansion public duty have such an would created doctrine because expressed public Legislature, policy choice of the undermined the act, liability public employees governmental to be which allows tort subject tort in limited circumstances. to qualified Legislature provided for the note that We 1975, years in MCL seven before Court found 331.531 judicial adopted the nonintervention doctrine. Mich 663
Additionally, we are persuaded by argument not are incompetent hospital courts to staffing a basis for adopting decisions as noninterven- tion reality doctrine. This claim overlooks the that courts routinely complex claims of all kinds. Forgoing claims, legal review of claims simply valid because those decisions, arise from to a staffing grant amounts of unfettered private discretion to to hospitals disregard legal rights those who are the of a subject staffing decision, even when precluded such decisions are statute. is not say staffing decisions, This to that hospital specialized which involve medical and knowledge business considerations, are entitled not to some measure of However, deference. when those staffing decisions violate the legal rights others, judiciary must exercise its obligation adjudicate legal disputes, except to the extent state, the citizens of through this their elected repre- sentatives, have policy made a choice to shield such liability. decisions from
B. PEER REVIEW IMMUNITY “ ‘ Peer review is “essential to the continued im- provement in the patients. care and treatment of Can- did and conscientious practices evaluation of clinical ’ ”50 a sine non of qua adequate hospital care.” In order promote “the willingness of hospital provide staff to their candid assessment” in proceedings,51 the Legislature has primary enacted two measures protect peer review activities from intrusive public involvement and litigation. First, Osteopathic Hosp Corp, 26, 42; Dorris v Detroit 594 NW2d (1999), quoting Attorney General, supra 169, quoting at Bredice v (D Inc, Hosp, 249, DC, 1970), opinion Doctors 50 FRD 'd aff without 199; 156 US DC 479 F2d 920 App 51Dorris, General, supra, Attorney supra at at 169. *15 Mercy Feyz 681 Opinion of the Court data, knowledge records, provided has are or review entities confidential by peer collected Furthermore, and relevant not discoverable.52 immunity to case, granted the Legislature has this infor- provide and entities that organizations, persons, protected peer groups perform or mation functions.53 communicative 52 333.20175(8), 333.21515, MCL Peer review MCL 331.533. MCL fully protected from disclosure even to have thus records been investigation. Attorney conducting Attorney General a criminal when 168-170; Lieberman, General, supra Investigation In re 250 Mich at (2002). Moreover, protec App 199 these nondisclosure NW2d regardless party apply of the nature of the claim asserted tions Assoc, PC, seeking v Petrella Petrella & the records. Manzo & (2004). 705, 715; App NW2d provides pertinent part: MCL 331.531 (1) may person, organization, entity provide A or to a review
entity relating physical psychological or information or data to the person, necessity, appropriateness, quality or condition person, qualifications, compe- health care rendered to a or the tence, performance provider. or of a health care (2) section, entity” 1 of the As used in this “review means following: (a) duly appointed peer A committee of 1 of the following: (iii) facility agency A health or licensed under article 17 368, code, public PA 333.20101 to 333.22260. health
(3) civilly criminally person, organization, A is not or liable:
(a)
providing
pursuant
For
information or data
to subsection
(b)
For an
communication
its
as a review
act or
within
entity.
The statute review organization, entity from and or civil criminal carrying types protected when out three of peer review First, immunity protects provide tasks. those that infor- or a entity mation data to review to MCL pursuant 331.531(1). Second, entities,” it protects specific “review a duly such as of appointed peer review committee a for those acts or hospital,54 communications within its a entity. Finally, subject to review MCL 331.533,56 immunity 331.53255 and MCL to applies those publish proceed- who release or a record of review ings, or the a reports, findings, or conclusions of review entity.
However, peer immunity review is not A absolute. person, organization, or entity has acted with (c) releasing publishing proceedings, For or a or record of reports, findings, subject entity, or a conclusions of sections and 3. (4) (3) liability provided from under subsection apply person, organization, entity does not to a or that acts with
malice. 331.531(2)(a)(mJ. earlier, hospitals MCL As noted are themselves not protected listed review entities. provides publication 331.532 MCL that the or release of records, reports, findings, only following and conclusions shall be for the (1) (2) purposes: advancing education, maintaining health care research or (3) professions, protecting integ the standards of health care the financial (4) any rity govemmentally program, providing relating funded evidence (5) discipline provider, entity, or a practitioner, the ethics of health care reviewing qualifications, performance competence, and of a health care professional respect appointment profes to the selection and (6) facility’s staff, a complying § sional to health medical with 20175 Code, Health Public MCL 333.20175. provides proceeding 331.533 that “the record of a and the reports, findings, entity by and conclusions of a review and data collected confidential, records, public or for a review ... are are not and are not discoverable and shall not be used as evidence a civil action or added.) (Emphasis proceeding." administrative is not function in a engaging malice when did Because the liability.57 protected what consti- determine “malice,” we must not define immunity. We for purposes malice tutes words directive Legislature’s guided are meaning appropriate peculiar acquired that have peculiar to that according construed shall be in the law a word clearly is meaning.58 “Malice” appropriate Indeed, in the law. meaning acquired peculiar that has that “malice” dictionary confirms legal any reference on depending meanings, peculiar acquired several has case is in this it used. Our task in which the context is the of “malice” meaning peculiar to discern which *17 immu- purposes for appropriate most nity statute. of peer for purposes of “malice” definition proper
The
in this
impression
an
of first
immunity is
issue
have
Appeals panels
of
years,
Court
Over
Court.
instance, in
For
divergent definitions.
several
employed
adopted
the Court of
Allan,
v
supra,
Veldhuis
malice.”59 The
“actual
definition of
the defamation
statutory
held that
v Allan
in Veldhuis
panel
57
331.531(4).
immunity provided
MCL 331.531 is
under
MCL
immunity provided
for
MCL 333.16244
separate
from the
and distinct
making
report
good
the HPRE MCL
person
a
acts in
faith
a
who
person
presumption
makes such a
that a
who
establishes a
333.16244
immunity
predicated
reporting
not
on
good
is
report
faith. This
acted in
participation in
review.
58 MCL 8.3a.
59
710;
Sullivan,
254, 279-280; 84 S Ct
376 US
Times Co v
See New York
Craftsmen,
Bricklayers
(1964);
& Allied
J & J Constr Co v
immunity accorded to review activities does not or apply person “if the information data supplying does knowledge falsity so with of or reckless its disre- gard Similarly, of truth or a falsity. its is not if it knowledge immune acts with of falsity, disregard with reckless the truth or of falsity, of information or data which it communicates or it upon which acts.”60 case,
In this the Court of Appeals majority and adopted dissent each a different definition “malice.” (5th ed) The majority quoted Black’s Dictionary Law “ ‘[mjalice for the proposition that is not law neces- will, sarily personal hate or ill but it state of mind which is law and of legal rights reckless of ”61 Using definition, citizen.’ this the Court of Appeals concluded that civil rights because acts estab- lish legal rights, acting disregard citizens’ of those rights act represents malicious outside granted under MCL 331.531.
Defendants
contend that
defamation definition of
“malice” utilized in
v Allan
appropriate
Veldhuis
is the
standard
defining
malice under MCL 331.531. We
agree.62 In defining malice for
purposes
(citation omitted).
Allan, supra
Veldhuis
at 136-137
61Feyz, supra at 704-705.
concludes, largely by referencing
legal dictionary,
Justice CAVANAGH
that the
intended a different definition of “malice” than we
*18
Indeed,
adopt
today.
contends,
correctly
as the dissent
reference to
may
“helpful”
ascertaining legislative
dictionaries
be
in
intent. Post at
692, citing
Woodhaven,
425;
Ford Motor Co v
475 Mich
Under the “malice”
by
definition used
Feyz
Court
of
majority, every potential
phy-
invasion of a
sician’s legal rights committed during peer review,
regardless of the
of
triviality
the act or the absence of
of
knowledge
the inaccuracy of the information relied
upon,
abrogate
would
immunity. Such a definition of
331.531(3)(b) provides
We note that MCL
immunity to a review
entity for all non-malicious
scope
acts or communications within its
as a
entity. Indeed,
review
it is difficult to
properly
conceiveof an “act” that a
functioning hospital peer
entity
perform
review
could
that is not com
gathering
municative in
evaluating
information,
nature. The
making
well as
evaluation,
recommendations based on that
are indeed
certainly
“acts.” But these “acts”
also have a fundamental communica
aspect. Indeed,
tive
inherently
these acts are so
communicative that were
peer
entity
perform
review
them in such a manner as to interfere
purpose keeping physicians
with the
performing
focused on
honest and
candid
process
review—to distort
regard
without
falsity
gathers
the truth or
of the information it
or uses—such actions
necessarily
would also
be
subject
communicative in nature and
to the
adopt today.Moreover,
malice standard
hospital peer
we
if a
performing non-communicative,
were
namely
non-evaluative “acts”—
goal
acts that do not
improve delivery
advance the
of the statute to
arguably
care—such
“acts” are
not afforded
because
they presumably
would not be
hospital peer
within the
entity’s
function.
process
undermine
“malice” would
process
legalistic, rights-driven
it into a
transforming
pro-
mission —honest
statutory
proper
rather than its
information about hos-
medical evaluation
fessional
inconsistent with
This result is
practices.66
pital patient
*20
review
statutory goals
the
and
afforded to communicators
stringent protections
In
the
providing
review.
peer
made
communications
review,
Legislature
was
peer
for
extensive
might insulate
protections
that such
obviously aware
for
liability
participants’
and sanction the
from review
ultimately found
physicians
for
adverse outcomes
some
profes-
the requisite
to lack
credentialing hospital
aby
adverse outcomes
standards. Such
sional skills or
themselves,
not,
obviously were
equally
liability
for
Legislature
to be cause
by
deemed
However,
process.
review
peer
in the
participating
those
evaluations, determinations,
making unfavorable
information the
negative
on
recommendations based
satisfy the
knows to be false would
peer
conclude,
on the
based
adopt.67
malice
we
We
standard
statute,
utilizing
of this
that
and structure
language
the type
to be false is
acting on information known
Legislature
prevent
intended to
activity
The defa-
exception
immunity.
malice
including the
noteworthy
unusual
term
chose the
It
is
an
term such as “intent” as
rather
than a more common
“malice”
stated,
immunity granted.
believe that
this is
exception
As
we
to the
narrowly
concerns commu
because the focus of the
inexorably tied to
definition of “malice” is
nications and the defamation
widely
significant,
Equally
this definition became
communications.
Sullivan, supra.
publication
following
New York Times v
known
against
any disciplinary
especially
action taken
true because
This is
findings
be
physician
would have to
on the basis of
physician
any
hospital
upon request
from which the
other
disclosed
331.531(6)
credentials,
employment.
seeking
privileges,
See
staff
333.20175(6).
and MCL
Opinion the Court mation definition of “malice” promotes goals of review because peer participants are not pro- tected if they are not performing evaluations with a care, focus on improving patient but rather on the basis of false extraneous factors unrelated patient care.
C. HOSPITAL STAFFING DECISIONS ARE NOT IMMUNE LIABILITY FROM Our lower courts have made broad use of the now-repudiated nonintervention doctrine that pro- vided, formulations, some blanket immunity for any staffing decision associated review. We believe that the widespread use of this doctrine has caused some confusion concerning the relationship between the immunity granted to participants in the peer review process and the nature of im- posed on the actual decision maker in staff- hospital ing questions, namely, stated, itself. As Sarin, decisions such as Hoffman, and Long applied *21 the immunity common-law provided by the noninter- vention doctrine to hospitals regard without to the fact that the grants statute itself immunity only to enumerated peer review participants and their com- Hospitals munications. are not similarly by covered peer the review statute. It appears that reliance on the sweeping nonintervention doctrine obviated the necessity of examining whether a hospi- tal, as maker, decision was entitled to the immunity provided by the statute. case,
In this clearly defendants assume and argue that an expansive construction of peer the review immunity statute will insulate the hospital defendant from liability. Contrarily, the Court Appeals majority and sought dissent to construe the peer review immu- nity statute in a way to insulating avoid the hospital claims.68 None of these rights for civil construction of with a reasonable positions comports the us, misapprehend and both the statute before the that both It is for this reason protection. of its Ap- of the Court of dissenting opinions majority on the statu- impose in this case strain to peals panel that has little to do term “malice” a construction tory the review peer communicative function of with the process. point of the confusion on this illustrated
Because cases, review Court of we published peer clarify peer review opportunity take this only extends to the communications immunity statute them, in made, and the who make participants hospital not to the that makes process, review staffing on credential questions. ultimate decision of the language Our conclusion is rooted immunity Nothing statute itself. review it immunity suggests applies any person statute in the communicative entity except those involved medi- gathering evaluating hospital concern of data publish peer cal as well as those who practices, It proper statutory purposes. information for the listed not to the decision maker that apply hospital does might rely upon product the work of a 333.21513(a) (c) Moreover, desig- committee. maker statutory nate that the decision words, concerning staffing In other privileges. may assemble and assess data about a a recom- may and it even make
physician’s competence, that, case, important the decision in this none It is also to note until published peer a civil statute cases involved See, existing statutory e.g., Long, supra; rights an claim. claim or 40, Indeed, Allan, Regualos, supra. supra; in footnote Veldhuis v noted independent an effort to create an cause at least one case involved *22 immunity review statute itself. action for malice based on 475 Mich hospital
mendation to the on a leadership bearing issue, staffing but it is the hospital remains ulti- mately and legally responsible deciding relat- issues ing staffing privileges.
Thus, hospital protections does not fit within the by afforded statute when it makes the ultimate staffing decision. if Consequently, the defendant hospital by here is covered one or more of the several state and rights federal civil acts plaintiff under, has sued and if staffing are an privileges activity protected from discrimination such state and federal acts, then the hospital required to defend its deci- plaintiff sion.69 may suing What not do defendant is invade the protections afforded to partici- pants in process without establishing malice as we have defined it this opinion.
CONCLUSION repudiate We doctrine of nonintervention because it is inconsistent with the statutory peer review established MCL Furthermore, 331.531. we hold that malice exists when a person supplying infor- mation or data to a review entity does so with knowledge falsity of its or with disregard reckless of its truth or falsity. Similarly, a peer review entity is not immune from if it acts with knowledge of the falsity, or with disregard reckless falsity, the truth or of information or data that it upon communicates or which it acts. Although this definition originated in the defamation, context of this definition is uniquely appro- priate to Michigan’s peer scheme, as peer immunity is based on the communication of informa- earlier, As stated this case was decided on motion. The merits of plaintiffs statutory express opinion claims have not been decided. We no validity any plaintiffs on the claims. *23 Opinion by Cavanagh, J. professional tion about and activities standards. More- over, this definition furthers the purpose peer review in that it allows those who in the engage candidly and a honestly evaluate competence without fear of physician’s exposure to liability.
Accordingly, the of the judgment Court of vacated, and remand we this case to the Monroe Circuit for further proceedings Court consistent with this opin- ion.
Taylor, C.J., Corrigan JJ., Markman, con- J. Young, curred with
CAVANAGH, J. (concurring part and dissenting I part). concur many reached by results majority opinion. I Specifically, agree that, because MCL 331.5311 qualified immunity establishes for peer provides part: MCL 331.531 in relevant (1) person, organization, entity may provide A or to a review entity relating physical psychological information or data to the or person, necessity, appropriateness, quality condition of a or person, qualifications,
health care compe- rendered to a or the tence, performance provider. or of a health care (3) person, organization, civilly criminally A or is not or hable: (a) providing pursuant For information or data to subsection (b) For an act or communication within its as a review entity. (c) releasing publishing proceedings, For record the or of reports, findings, entity, subject or conclusions of a review sections and 3. Mich 663 Opinion by Cavanagh, J. justification participants, review entities and there is no judicial recognizing in this state for noninterven- I noninterven- agree tion doctrine. also applied private hospi- tion doctrine should not be to a however, disagree, decisions. I general staffing tal’s “malice,” majority’s with the conclusion that the term 331.531, be defined under the as used MCL should of “actual malice” in accordance with defa- principles mation law.
Notably,
did not define “malice” in
agree
MCL 331.531. Like the
I
that “malice” is
majority,
a term that has
acquired
peculiar
appropriate
*24
Therefore,
in
meaning
the law.
this Court must con
according
strue the term “malice”
peculiar
its
appropriate
legal meaning. Ford Motor Co v
Woodhaven,
425;
(2006);
Mich
475
Simply Legislature used term “mal- ice,” not “actual malice.” As noted this Court in J & J Constr Co v & Allied Bricklayers Craftsmen, 468 Mich (2003): 722, 731; 664 NW2d long-settled principles concerning Under constitutional rights speech First Amendment of freedom of press, public-ñgure plaintiff freedom of the must estab- defamatory lish that defendant made statements with prevail “actual malice” in order to in a defamation action. Sullivan, 254; 710; Times[ New York Co v 376 US 84 S Ct (1964)] 11 L (establishing Ed 2d 686 the “actual malice” officials); standard for public for defamation of Butts, 130; Publishing Curtis Co v 388 US 87 S Ct (1967) L Ed 2d (extending the “actual malice” stan- public figures). dard to “Actual malice” exists when the knowingly defendant makes a false statement or makes a false disregard statement reckless [Empha- of the truth. sis added.]
Further, earlier, and as noted Black’s Law Dictionary (7th ed) defines “actual malice” in the context of defamation “Knowledge (by the person who utters statement) publishes a defamatory that a statement *25 false, is or reckless disregard about whether the state- ment is true.” Accordingly, reference to a legal dictio- nary and this Court’s case law confirms that the term “actual malice” pertains defamation law. And be-
3 Significantly, “actual malice” is defined as “1. The deliberate intent to injury, commit an as evidenced external circumstances .... 2. Defa Knowledge (by person publishes mation. defamatory who utters or statement) false, disregard that a statement or reckless about whether (7th Dictionary ed), p statement is true.” Black’s Law 968. 475 Mich
Opinion by Cavanagh, J. used the term “malice” MCL Legislature cause the 331.531, malice,” there is no reason to not “actual intended Legislature principles that suspect under the review statute. apply defamation law as “actual mal- Additionally, interpreting “malice” ice” in accordance defamation law would read the provides term “act” out of MCL 331.531. MCL 331.531 for “an or immunity provided that will be act commu- entity” long nication within its as a review as as person, organization, or does not act with Legislature malice. it if the had Accordingly, appears as understanding broader under MCL contemplated by majority. 331.531 than that In words, other while the defamation definition of “actual might malice” if arguably be warranted MCL 331.531 only used that term the statute dealt with a communication, the legal definition of “malice” must apply specifically because MCL 331.531 deals with “act[s] communication[s].” Further, I am unpersuaded by majority’s also theory that the defamation law definition of “actual pertain malice” must to MCL 331.531 because the Legislature amended the statute to include a malice exception sometime after New York Times Co v Sulli van, 710; 11 L (1964), 376 US 84 S Ct Ed 2d 686 was decided. The added the malice excep Sullivan, roughly years majority tion after and the pointed any apart has not other evidence from an 11-year gap suggesting amendment was a Sullivan, direct response particularly where Sullivan uses the term “actual malice” and MCL 331.531 does I persuaded by majority’s not. am rationale Nor “act,” 331.531, used MCL must have a “fundamental communicative and that act aspect” any “non-communicative, that is non-evaluative” is outside *26 Feyz y Mercy by Opinion Cavanagh, J. Ante at n scope peer review. 65. There is no simply suspect reason to in- tended to create redundancy such a MCL 331.531— i.e., immunity provided for communicative acts or communications Again, within the review. provides immunity MCL 331.531 for “act[s] or commu- Nor am I persuaded by majority’s nication[s].” legal rationale that the of the term meaning “malice” would circumvent the entire peer process. Rather, participant provided is still im- munity for a nonmalicious “act or communication within its scope entity” as a review as directed Legislature.
In sum, I agree majority’s with the decision to remand remand, this case to the circuit court. On however, I would instead direct the circuit court apply the legal definition of the term “malice” because there is no indication in MCL 331.531 that the Legisla- ture intended any other meaning. JJ., J. Kelly,
Weaver Cavanagh, concurred with