DAVID HUETHER, Personal Representative of the Estate of George Huether, Jr., Deceased, Petitioner, v. THE DISTRICT COURT OF THE SIXTEENTH JUDICIAL DISTRICT OF THE STATE OF MONTANA, IN AND FOR THE COUNTY OF CUSTER, THE HONORABLE RICHARD G. PHILLIPS, Presiding, Respondent.
No. 99-032
THE SUPREME COURT OF THE STATE OF MONTANA
Decided June 20, 2000
300 Mont. 212 | 2000 MT 158 | 4 P.3d 1193 | 57 St. Rep. 647
Heard and Submitted September 9, 1999.
For Respondent: Honorable Joseph P. Mazurek, Attorney General; Clay R. Smith, Solicitor, Helena; Herbert I. Pierce III (argued), Crowley, Haughey, Hanson, Toole & Dietrich, Billings.
For Amici Curiae: Patricia O‘Brien Cotter, Cotter & Cotter, P.C., Great Falls (Montana Trial Lawyers Association); Jerome T. Loendorf and Donald Ford Jones, Harrison, Loendorf, Poston & Duncan, P.C., Helena (Montana Medical Association); Molly Shepherd, Worden, Thane & Haines, P.C., Missoula (St. Patrick Hospital; St. Joseph Hospital; Clark Fork Valley Hospital; and Western Montana Clinic); Katherine S. Donnelley and Kimberly L. Towe, Browning, Kaleczyc, Berry & Hoven, P.C., Helena (Montana Hospital Association); Gregory G. Murphy, Moulton, Bellingham, Longo & Mather, P.C., Billings (St. Vincent Hospital and Health Center and Sisters of Charity of Leavenworth Health Services Corporation).
CHIEF JUSTICE TURNAGE delivered the Opinion of the Court.
¶1 On March 25, 1999, this Court accepted jurisdiction of this application for writ of supervisory control over the Sixteenth Judicial District Court, Custer County. We invited briefs by amicus curiae and classified the case for oral argument. We now vacate the District Court‘s determination that documents sought to be discovered by the petitioner, the Estate of George Huether, Jr., are not discoverable under the hospital peer review statutes codified at
¶2 The issue is whether the District Court erred in denying the Estate‘s discovery request pursuant to
¶3 In June 1992, seventy-eight year old George Huether, Jr., underwent surgery for colon cancer at Holy Rosary Hospital in Miles City, Montana. An hour after being returned to the surgical floor from the recovery room, Huether stopped breathing. Although he was successfully resuscitated, he suffered severe brain damage and died when he was taken off life support a few days later.
¶4 Huether‘s son, as the personal representative of his estate, filed a wrongful death action against the Hospital, asserting that the Hospital staff did not monitor Huether closely enough following his surgery. As part of discovery, the Estate asked the Hospital to produce “any incident reports or similar reports prepared with regard to any aspect of the care and treatment of George Huether, Jr., while a patient at Holy Rosary Hospital.” Specifically, the Estate was interested in any documents indicating that Huether‘s vital signs were being recorded at least every fifteen minutes by an automatic monitor called a “Critikon.”
¶5 The Hospital objected to the discovery request on grounds that any such documents would not be subject to discovery under
¶6 The Estate filed an application for this Court‘s supervisory control. At the Court‘s invitation, five amicus curiae briefs were submitted prior to the oral argument.
Discussion
¶7 Did the District Court err in denying the Estate‘s discovery request pursuant to
¶8 The Estate argues that the District Court‘s order denying the motion to compel gives unconstitutional application to
¶9 Montana‘s hospital peer review statutes are typical of the statutes adopted by various states to encourage candor in hospital staff committees which review and evaluate the quality of medical care provided in their hospitals. The goal is to promote continuous improvement in the quality of health care delivery through review of standardized health care operations and the performance of doctors and staff. See Sistok, 251 Mont. at 40-41, 823 P.2d at 253; American Medical Association, A Compendium of State Peer Review Immunity Laws (1988 & Supp. 1994); Charles D. Creech, The Medical Review Committee Privilege: A Jurisdictional Survey, 67 N.C.L. Rev. 179 (1988). Because the language used in statutes is the first basis for their interpretation, we set forth
50-16-201. Data defined. As used in this part, “data” means written reports, notes, or records of tissue committees or other medical staff committees in connection with the professional training, supervision, or discipline of the medical staff of hospitals.
50-16-202. Committees to have access to information. It is in the interest of public health and patient medical care that in-hospital medical staff committees have access to the records, information, and other data relating to the condition and treatment of patients in such hospital to study and evaluate for the purpose of evaluating matters relating to the care and treatment of such patients for research purposes and for the purpose of reducing morbidity or mortality and obtaining statistics and information relating to the prevention and treatment of diseases, illnesses, and injuries. To carry out such purposes, any hospital, its agents and employees may provide medical records, information, or other data relating to the condition and treatment of any patient in said hospital to any in-hospital medical staff committee.
50-16-203. Committee information and proceedings confidential and privileged. All such records, data, and information shall be confidential and privileged to said committee and the
members thereof, as though such hospital patients were the patients of the members of such committee. All proceedings and in-hospital records and reports of such medical staff committees shall be confidential and privileged. 50-16-204. Restrictions on use or publication of information. Such in-hospital medical staff committees shall use or publish information from such material only for the purpose of evaluating matters of medical care, therapy, and treatment for research and statistical purposes. Neither such in-hospital medical staff committee nor the members, agents, or employees thereof shall disclose the name or identity of any patient whose records have been studied in any report or publication of findings and conclusions of such committee, but such in-hospital medical staff committee, its members, agents, or employees shall protect the identity of any patient whose condition or treatment has been studied and shall not disclose or reveal the name of any such in-hospital patient.
50-16-205. Data confidential — inadmissible in judicial proceedings. All data shall be confidential and shall not be admissible in evidence in any judicial proceeding, but this section shall not affect the admissibility in evidence of records dealing with the patient‘s hospital care and treatment.
¶10 Sistok represented this Court‘s first opportunity to interpret Montana‘s hospital peer review statutes. In that case, Victor Sistok brought suit against the Kalispell Regional Hospital, arguing that the hospital negligently allowed a doctor with a history of alcoholism to perform surgery upon him. In connection with his lawsuit, Sistok sought to depose the former chairman of the hospital committee charged with supervision and discipline of the medical staff, and to discover records and information concerning the committee‘s prior actions taken against the doctor.
¶11 This Court held that Sistok‘s deposition subpoena sought information that was clearly privileged and that the District Court had properly quashed the discovery request. In the context presented, the Court stated that
¶12 The District Court concluded that this Court‘s opinion in Sistok governs in the present case. We disagree. As counsel conceded at oral argument, the facts in Sistok are clearly distinguishable from those in
¶13 This Court‘s role in statutory construction is to “ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted or to omit what has been inserted.”
¶14 This is consistent with the provisions of another segment of Montana law, the Uniform Health Care Information Act (the Act), enacted in 1987. The Act enumerates patients’ rights, including the right to examine or copy all or part of the patient‘s recorded health care information. See
¶15 Amici point out that peer review committees do not themselves create evidence of what took place in the treatment of a patient. That evidence exists, instead, in the medical record of the patient and in the memories of those who provided treatment, all of which is discoverable and admissible under
¶16
¶17 We here note an inconsistency.
¶18 We conclude that the net effect of the peer review statutes is that “health care information” belongs both to the patient and to the hospital, while “data” is a matter of internal administrative function. Accordingly, we conclude that all “health care information” either reviewed or generated by medical staff committees should be made available to the subject patient. Only the “data” are protected from disclosure.
written reports, notes, or records of tissue committees or other medical staff committees in connection with the professional training, supervision, or discipline of the medical staff of hospitals.
(Emphasis supplied.) Thus, for example, an “incident report” including a retrospective report of what occurred in the course of a hospital patient‘s care and treatment would be discoverable by the patient. Records of the discussion and recommendations of a peer review committee as to professional training, supervision, or discipline as a result of such an incident and report would not be discoverable.
¶19 Because the records sought in Sistok related to prior disciplinary action by the hospital against Sistok‘s surgeon, they clearly met the definition of “data” and were not subject to discovery. However, to the extent that the records sought by the Estate in this case relate to
¶20 In so ruling, we realize that we are limiting the meaning of the last sentence of
[W]e presume that the legislature enacts a law with full knowledge of all existing law on the same subject ... and does not intend to abrogate or interfere with another law on the same matter unless the repugnancy between the two is irreconcilable.
Blythe v. Radiometer America, Inc. (1993), 262 Mont. 464, 475, 866 P.2d 218, 225. On the other hand, were we to read the statutes as the Estate asks and open all records of peer review committees, we would gut the peer review confidentiality provisions.
¶21 In Sistok, we further mistakenly relied in part upon a criminal procedure statute,
¶22 We conclude that to the extent that documents over which the Hospital seeks protection are relevant to Huether‘s hospital care and treatment, they are discoverable. However, to the extent the requested documents are “in connection with the professional training, supervision, or discipline of the medical staff of [the] hospital[],” they are not discoverable. We recognize that this may require that the court conduct an in-camera review and redact material in the documents relating to supervisory or disciplinary matters.
¶23 Given our decision, we conclude that we need not reach the issue of the constitutionality of the peer review statutes. We remand this case for further proceedings consistent with this Opinion.
JUSTICES GRAY, LEAPHART and REGNIER concur.
JUSTICE TRIEWEILER dissenting or concurring.
¶24 I concur or dissent from the majority opinion, depending on its meaning. I am not sure from the written opinion or our conference discussion of the opinion that I fully understand the majority‘s intent. Therefore, I write separately to make my intent clear.
¶25 It is my opinion that no factual information related to a patient‘s care, treatment, or condition while at a healthcare facility is privileged from discovery by that patient regardless of where the information is stored or the purpose for which it was gathered.
¶26 A principal problem with the majority opinion is the conclusion in paragraph 20 that the Petitioner may discover records “relevant to the patient‘s hospital care and treatment” but may not discover information gathered “in connection with the professional training, supervision, or discipline of the medical staff.” In reality, there may be records which are both relevant to the patient‘s care and treatment and gathered in connection with training, supervision, or discipline. In that event, it is my opinion that the records are discoverable. To hold otherwise, would deny Petitioners the right to due process and the judicial need for fair administration of justice.
¶27 I acknowledge the difficulty encountered by the majority when trying to reconcile Montana‘s statutory potpourri of privileges from disclosure and rights to discovery of records kept by a healthcare facility. However, in reconciling the provisions of
¶28 When a statutory scheme has several provisions, a construction is to be adopted which will, if possible, give effect to all.
¶29 In this case, the particular statutes which deal with information gathered by peer review or other hospital committees, protect the
¶30
All such records, data, and information shall be confidential and privileged to said committee and the members thereof, as though such hospital patients were the patients of the members of such committee. All proceedings and in-hospital records and reports and reports of such medical staff committees shall be confidential and privileged.
(Emphasis added.)
¶31 Because information about a patient gathered by a hospital committee is no more privileged than the record of that person‘s care prepared by his treating physician, the patient has a right to discover that information.
Since the purpose of the statutory privilege protecting confidential communications between physician and patient is the protection of the patient, it is generally held that the privilege is personal to the patient or someone standing in his stead.
The physician-patient privilege cannot be asserted by the physician, even for the benefit of the patient, or by the patient‘s opponent in a legal proceeding, including the prosecution, where the patient is on trial for a crime. 81 Am. Jur. 2d Witnesses § 484.
¶32
¶33 Finally,
All data shall be confidential and shall not be admissible in evidence in any judicial proceeding, but this section shall not affect the admissibility in evidence of records dealing with the patient‘s hospital care and treatment.
(Emphasis added.)
¶34
¶35
¶36 The closest we have come to considering the due process implications of suppressing evidence in medical malpractice claims was our decision in Linder v. Smith (1981), 193 Mont. 20, 629 P.2d 1187. The principal issue on appeal in that case was the constitutionality of the Medical Malpractice Panel Act. While the court held that the act was not generally offensive to any constitutional provision, the Court did invalidate that part of the act which prohibited a party to a panel proceeding from using statements made at that proceeding to impeach a witness who testifies inconsistently at a subsequent proceeding. The court held as follows:
Section 27-6-704(2), MCA , provides that: “(no) statement made by any person during a hearing before the panel may be used as impeaching evidence in court.” In order to uphold the constitutionality of the panel act, we determine that this section must be severed
from the act. It is fundamental to our adversarial system that litigants retain the right to impeach the sworn testimony of a witness testifying against them. We are mindful that this provision was enacted to aid the fact-finding by the panel and to preserve the confidentiality of the proceedings. But we cannot say that a litigant will receive a full and fair hearing if he is unable to fully cross-examine in court the witnesses that testified in the prior hearing.
Linder, 193 Mont. at 30, 629 P.2d at 1192.
¶37 Further development of the facts illustrates that effective cross-examination is also the basis for the Petitioner‘s discovery request in this case. The Petitioner‘s decedent, George Huether, Jr., had surgery for removal of a malignant tumor from his cecum at Holy Rosary Hospital in Miles City, Montana, on June 10, 1992. His records indicate that following surgery and a normal recovery he was discharged from the recovery room and transferred to the medical-surgical floor at 12:15 p.m. on that date. His attending physician directed the nursing staff to monitor his condition at 15-minute intervals. His records also indicate that his vital signs were checked at 12:30 p.m. and 1:30 p.m. when he went into respiratory arrest. However, there was nothing in his medical chart to indicate that his vital signs had been checked at 15-minute intervals.
¶38 After Mr. Huether was resuscitated he had severe anoxic encephalopathy. He was taken off life support systems and died three days later.
¶39 On July 15, 1992, Mr. Huether‘s treating physician wrote to the decedent‘s family with the following concerns about the decedent‘s follow-up care:
The information that you and your family provided regarding the events in the room prior to the incident indicates to me a nursing problem and, therefore, I have referred your letter to the administration of the hospital and the Department of Nursing. They will be contacting you in the near future.
¶40 Based on the attending physician‘s letter, the family‘s observations while present in the decedent‘s room, and the decedent‘s medical records, the Petitioners assumed that the medical chart accurately reflected the extent to which the decedent‘s vital signs had been monitored following his transfer to the medical-surgery floor and that those facts would be confirmed by the hospital‘s investigation.
¶41 On June 19, 1998, however, members of the nursing staff responsible for the decedent‘s care testified that his blood pressure and heart rate had been continuously monitored by a Critikon device following his transfer to the medical-surgery floor.
¶42 The basis of the Petitioner‘s claim is that George Huether‘s condition was inadequately monitored. The medical records reflect one course of observation. The nurses’ testimony indicates another course of observation. Presumably, the investigation conducted at the treating physician‘s request shortly after Mr. Huether‘s death will provide further information critical to this issue. To deny access to that information which may be dispositive of the primary issue in this case simply because it has now been included among peer review or other committee records, would be to deny Petitioners possible information necessary to effectively cross-examine the hospital‘s witnesses and to prove their case.
¶43 This specific issue was considered by the Supreme Court of Kansas in Adams v. St. Francis Regional Medical Center (Kan. 1998), 955 P.2d 1169. In that case, the plaintiffs’ decedent died as a result of a ruptured ectopic pregnancy while being treated at the defendant hospital. Plaintiffs alleged that the attending nurse did not recognize the seriousness of the decedent‘s condition and negligently failed to alert her physician to her need for immediate attention. The issue before the Kansas court was whether the plaintiffs could discover disciplinary action forms prepared by the hospital in conjunction with peer review. Peer review information was protected by statute in Kansas as it is in Montana by
To allow the hospital here to insulate from discovery the facts and information which go to the heart of the plaintiffs’ claim would deny plaintiffs that right and, in the words of the federal court, “raise significant constitutional implications.” 129 F.R.D. at 551. The constitutional implication was stated by this court in Ernest v. Faler, 237 Kan. 125, 131, 697 P.2d 870 (1985):
“The right of the plaintiff involved in this case is the fundamental constitutional right to have remedy for an injury to person or property by due course of law. This right is
recognized in the Kansas Bill of Rights § 18, which provides that all persons, for injuries suffered in person, reputation or property, shall have a remedy by due course of law, and justice administered without delay.”
....
In the present case, we conclude that although the interest in creating a statutory peer review privilege is strong, it is outweighed by the fundamental right of the plaintiffs to have access to all the relevant facts. The district court‘s protective order and order granting other discovery relief denied plaintiffs that access and thus violated plaintiffs’ right to due process and a fair determination of their malpractice action against the defendants. The information generated by the peer review committee, detailing the committee‘s decision-making process, the officers’ or committee‘s conclusions, or final decisions, is not subject to discovery by the plaintiffs. The district court has a duty to conduct an in camera inspection and craft a protective order which will permit the plaintiffs access to the relevant facts. Forms and documents containing factual accounts and witnesses’ names are not protected simply because they also contained the officers’ or committee‘s conclusions or decision-making process. The court can simply redact that which is protected and grant plaintiffs access to the portions containing the relevant facts.
¶44 The State of Montana, through the Office of the Attorney General, and the Respondent in this case, argue that Adams is unpersuasive because it is based upon a fundamental right found in the Kansas Constitution to full legal redress for all injuries. They argue that although Montana has a similar provision at
¶45 To the extent that the majority opinion permits discovery by the Petitioners of all facts pertaining to the decedent‘s care and treatment, I concur in that opinion. To the extent that discovery of those facts is limited, I dissent from the majority opinion.
JUSTICE HUNT and JUSTICE NELSON, join in the foregoing concurring or dissenting opinion.