*1 277 Peter M. Klarfeld, et al.
v. Salsbury,
Carl et al. Record No. 840342
April Carrico, C.J., Cochran,* Poff, Russell, Thomas, Present: Compton, Stephenson, JJ. * Justice participated hearing Cochran prior effec- and decision of this case to the April tive date of his retirement on 1987. *2 Christian, Barton, Smith; Epps,
David C. Kohler W. (Michael & Brent briefs), on for appellants. Chappell, Slenker; Shevlin; Jr. R. Harrison Pledger, Norman F. Brian C. Slenker, Brandt, Glass, III; Vancil; Jen- L. Cynthia W. (Benjamin Johnston; Shevlin, Curtis, & briefs), on for Artz & nings appellees.
COMPTON, J., delivered the of the Court. opinion case, on ap- In this limited issues medical we malpractice is issue The dispositive two for decision. peal, adducing questions discov- restricting whether the trial erred review panel. of a member of a medical ery deposition erred, when confronted The other the trial court issue whether admitting on grounds, with an constitutional objection trial. into evidence at opinion Klarfeld, 11 years In Peter M. December appellant his fa- the minor and was for age, Subsequently, treated diabetes. Klarfeld, Carl Sals- ther, appellees Peter J. claimed that appellant Sabol, a endocrinologist; an Judith bury, pediatrician; John Brown, Association, resident; a pediatric Hospital and Arlington negligent were their operator Arlington County Hospital, negligence treatment the child the condition and such for caused severe damage. brain
A medical convened at the re- was quest to Code 8.01-581.3. The appellees pursuant administrator, of two three composed physicians, hospital attorneys, and a who Dr. James H. judge circuit Stall- presided. Jr., was one After a ings, physician members. hearing, members of the written panel signed stating unanimous that the evidence did that Dr. “support Salsbury conclusion or Dr. Sabol or Dr. Brown or failed to Arlington County Hospital with the In comply standard of care.” October appropriate the Klarfelds filed damage alleging suit medical mal- present practice, naming as appellees defendants.
Subsequently, counsel to take the *3 plaintiffs sought of Dr. deposition Stallings for the stated of asking about purpose the deliberations of the and not for panel of purpose using as an witness in the trial. When Stallings expert the deposition 1983, in August commenced counsel for defendants objected, taking the that a member could not position panel to required testify about deliberations. The during discovery panel was deposition sought from the suspended plaintiffs ruling trial upon “the extent to which counsel for can plaintiff Dr. of the question Stallings concerning the basis decision panel’s and the deliberative of the process panel.” considering counsel,
After of argument the trial court sustained order, defendants’ position following and entered the pretrial generates the central issue on appeal: “UPON CONSIDERATION of the plaintiffs, motion establish boundaries Dr. Stallings for the and a deposition thereon, hearing and it of the court that being the opinion the deliberative of the Medical Review process Malpractice session, Panel being matter Executive it hereby ORDERED, Dr. depose Stallings that plaintiffs may concerning of the any deliberative aspect panel limit their of the witness as to questioning solely whether or not the Stallings’ decision reflects Dr. vote.” panel’s in September trial course of the
During the evidence, as received defendant and aby was offered This objection. over plaintiffs’ provided in favor of found A jury issue on appeal. the second spawned from the this appeal we awarded the plaintiffs defendants and 1983. in December the verdict order entered on judgment breadth of over the threshold, disagree the parties At the say order broadly, interpret The order. pretrial plaintiffs and pre of questioning” “all avenues ing it blocked pertinent of Dr. examination meaningful “conducting any vented them from construe The defendants member.” Stallings, other the “deliberative only it asserting spoke order narrowly, and went no further. process” “deliber- phrase define the has attempted
None of the parties counsel, argument order and in As used in the ative process.” stage that to mean we define “deliberative process” not in an consider private, when the members procedure “deliberative The of the claim. if the merits hearing, any, open kind to, includes, statements is not limited but process” ses- “executive during the private, made member by any panel Rules Malpractice Six Medical (j)(13), sion” Rule required by (Mal- at Practice, Volume Va. Code 1986 Replacement Rules). practice order pro that the pretrial with the defendants agree
We given deliberative process, about the interrogation hibited only The trial court. to the issue was presented context in which the counsel, by plaintiffs’ as stated of the deposition, avowed purpose deliberations. about the Stallings interrogate court was decide. The narrow issue to trial court had only could if, ques properly example, plaintiffs asked to decide and the individual, opinion, about his Stallings professional tion *4 complied defendants whether concerning for such opinion, bases Therefore, we conclude of care. with the standard applicable “concerning Stallings of interrogation the order merely prohibited of the or language deliberative process,” of the any aspect one clause, question Further, the order permitted der. in the last viz., the whether process, the deliberative to be asked relative to cast vote Stallings’ reflected accurately decision recorded the executive session. during issue on main on the our inquiry the scope
Consequently, in erred trial court whether the decide We must is limited. appeal restricting the about plaintiffs’ right Stallings to depose pretrial or, the deliberative to the question, differently, one stated whether the should been Stall- depose to plaintiffs permitted ings about other aspects such process.
The on the plaintiffs contend that trial court’s limitation the pretrial examination of to law. Plain- members was panel contrary tiffs point which provides,
“An admissible opinion medical review shall be panel as evidence in action the claim- subsequently brought by law, ant in a court shall conclusive opinion but such not be call, cost, and either right shall have at his party the chairman, member of the witness. If panel, the as a except called, each witness shall be required testify. appear The panelist shall have liability absolute from civil immunity communications, for all findings, and conclusions opinions made in the course and of duties this by prescribed chapter.”
That statute was enacted the General Assem- among by laws bly 1976 which established medical review sys- enactment, tem and addressed, “a language health, significant problem affecting safety adversely public and welfare” arising from “tort referred to as commonly actions medical 784. cases.” Acts ch. 611 at Those p. presently 8.01, Chapter 21.1, statutes are Title codified in §§ 8.01-581.1 to -581.20. that, statute, note plaintiffs the foregoing under
members, chairman, except required appear testify at trial if by argue called that the party. They panel’s opinion therefore, and, this case on bore the ultimate issue at trial of that within “integrity” discovery was well the scope permitted 4:1(b)(1) this by pro- rules of Court. Rule vides for the examination of on matters “relevant to the witnesses subject are “not matter involved in the action” which pending privileged.” 8.01-581.8 last sentence of
Additionally, plaintiffs argue, the makes severe on the scope clear “that trial court’s restrictions testimony examination were contend that Plaintiffs improper.” from member insulated during discovery “entirely absolute im- attack” with panelist because statute provides *5 “communications, findings, civil munity liability from of duties made in course and and conclusions” opinions re- Thus, should be urge, panelist as a panel member. plaintiffs discussions. about panel to quired give discovery deposition different slightly positions The defendants take respective Sobel, assuming among apparently issue. themselves on this promulgated General not the Chief Justice Assembly and 8.01-581.11, see Code Rules, such out that Malpractice points § This pro- Rules to be “executive session.” deliberations in require vision, in- never legislature it ... argues, Sobel makes “clear re- tended a medical that the deliberative If of discovery.” view committee would be the subject proper [sic] existed, effec- such the most argument an intention had goes, have to tive would been objective methods of accomplishing to re- to for a record deliberations provide reporter deliberations take quire place to public. see, to happen notes that “witnesses” who
Additionally, Sobel hear, to issue is relevant an something or otherwise sense which testify mandate and appear been under a to always statutory . . . (under be issued 8.01-407(A), “A summons may § attend on the the officer to summon commanding any person .”), . and day and at the that such attendance desired. place and on practice submit to Part Four of our Rules discovery under stat- However, notes, Sobel in the medical procedure. utes, 8.01- saw fit to make a legislature “specific provision [§ From com- for the of a member at trial.” appearance 581.8] statutes, enactment of of the two concludes that parison Sobel was “a legislative 8.01-581.8 was not “a mere but redundancy,” § ” in the true recognition that members are not ‘witnesses’ to discovery sense of that term hence not susceptible about the deliberative process. Sobel, con- (taking other defendants with position brief, seek argument)
trary during to his oral appellate disagreed on the by relying trial of discovery court’s limitation justify with conjunction pro- of Code 8.01-581.17 read provisions § visions will the pertinent parts of Code 8.01-581.16. We italicize of these defendants’ highlight argument. statutes communications
Section 8.01-581.17 deals with privileged provides, minutes, records,
“The medi- proceedings, reports of committee, committee, cal utilization or other staff committee as together with all specified communications, written, both oral and in or originating pro- *6 vided to such committees communications privileged which may not be disclosed by discovery or obtained legal court, unless a circuit a proceedings and hearing after for cause good arising extraordinary being circumstances from shown, minutes, orders the such disclosure proceedings, of records, or reports, communications. in this section Nothing shall be construed as to providing any med- privilege hospital ical records with kept respect any patient ordinary course of business of a nor to facts or operating hospital any information contained in such records nor shall this section preclude or affect of or of re- production evidence lating to hospitalization or treatment of any patient ordinary course of hospitalization of such patient.” Section 8.01-581.16 deals with civil and immunity provides,
“Every to, member or of, health care professional consultant committee, board, commission or group, other entity act, decision, shall be immune liability civil from omission, or utterance done or made in of his performance duties while as a serving member or consultant to such of committee, board, group, commission or other which entity, review, evaluate, primarily or make recommen- functions dations on (i) duration of stays health care patient facilities, (ii) the services furnished with professional respect services, the medical or dental for such (iii) the necessity of purpose promoting most efficient use of available services, health care (iv) facilities and or adequacy qual- services, ity professional (v) the and competency qualifi- cations for professional (vi) staff or the reason- privileges, ableness or made or on behalf appropriateness charges by facilities; of health care that such has been provided entity established law or pursuant regulation, to federal or state or pursuant to Joint Commission on Accreditation Hospital requirements, or established and constituted one or duly by more or licensed or public govern- with a private hospitals, act, decision, mental further that such agency provided omission, or or is not made in bad faith utterance done or with malicious intent.” defendants, Sobel, pro- contend that 8.01-581.17 except § communications certain commit- proceedings
vides that immune from unless disclosure discovery, tees are privileged further ar- These defendants judge. is ordered circuit for a determina- refers to 8.01-581.16 that 8.01-581.17 gue § § say that falling privilege. They tion of the entities within this review 8.01-581.16 covers medical clearly . . . . . which functions entity because it refers to . other “any . review, evaluate, on . . or make recommendations primarily services . . . provided the adequacy quality professional to . state law.” We such has established . . entity pursuant been statutes. foregoing disagree; defendants misconstrued hand, in plain one On the 8.01-581.17 provides privilege committees, to medical staff language is limited narrowly committees, specified utilization review and other committees are not men- 8.01-581.16. panels Medical *7 § tioned in 8.01-571.17. § hand, a broad civil immu-
On the other 8.01-581.16 provides § members of or for discovery, not a from disclosure nity, privilege board, or . . committee, entity other . commission “any group, evaluate, review, or make recommen- which functions primarily of med- on” the statute. Members dations subjects specified within the scope ical malpractice panels arguably the ref- immunity of 8.01-581.16 and entitled to civil because § Nevertheless, 8.01-581.17 erence to “other the entity.” § specified is more That statute is restricted to certain limited. “committees,” “committees” those including by cross-reference differ- the set 8.01-581.16. Stated functions forth performing § referred to not an “other entity” 8.01-581.17 does include ently, § is not 8.01-581.16 which a “committee.” § cloaked with the 8.01- To that “panels” conclude § of 8.01- language entity” 581.17 because “other privilege § 8.0,1-581.17 the term would and to add 581.16 be to rewrite § These two a term General by Assembly. not included “panel,” Act, which was supra, passed were parts sections 1976 claims. medical arising deal with the from problems described by other groups The Act referred to as well as “panels” different two Assembly uses various terms. “When the General
285 act, terms in the two different same it is to mean presumed Forst v. things.” Rockingham Poultry Marketing Cooperative, Inc., 270, 278, 400, 222 If (1981). legisla- Va. 279 S.E.2d ture had to include medical within “panels” intended 8.01-581.17, the privilege it would so stated coverage by have § term, the use of use of either different term by (“committee”) dealing cross-reference to a statute separate with a (immunity). different concept
Moreover, the urged 8.01-581.17 de interpretation by fendants brings that statute into direct conflict with § members, chairman, requires except appear and testify at the trial. would Assembly the General Surely, one provided in statute for testimony aby panelist pro vided in another statute for a from disclosure. privilege
Furthermore, we are conten unpersuaded by remaining tions issue, advanced this including defendants on the attempt to draw an analogy between juries, whose malpractice panels deliberations generally are from See shielded disclosure. Caterpil lar Tractor v.Co. Hulvey, 233 Va. 747 (1987). S.E.2d verdict, Unlike a jury’s decision is an malpractice panel’s only opinion that becomes an item of evidence at the trial but is not Lutz, conclusive. 8.01-581.8; 110, 115, v. Raines 231 Va. 341 S.E.2d 197 (1986). And such item of evidence should be subject evidence, just as scrutiny, other in order to piece test its probative value and credibility. addition,
In to defendant Sobel’s the re contrary argument, quirement of the Rule that deliberate in Malpractice “executive session” does not of those limiting discovery support valid, contention, deliberations. That if would that Rule bring into conflict with the On foregoing statutes. the Rule is contrary, consistent with the It statutory scheme. merely provides procedure to be followed at hearing the conclusion of a and for consideration of the merits of claim to be in Rule private. *8 does not to control attempt the to be followed during procedure the action, legal is subsequent governed which stat by applicable utes and practice Rules of and procedure.
Finally, we no which perceive statutory converts “redundancy” a panelist into a different breed of “witness” when called to testify at trial of the Section merely case. 8.01-581.8 deals with the special subject of medical we do not con- malpractice and strue it to somehow immunize a from routine discovery. panelist
286 limiting erred in trial court we hold that the
Accordingly, by Stallings pretrial of Dr. questioning plaintiffs’ We deliberative process. about the interrogation panel’s excluding during discovery be may questioned conclude that a panelist in execu about, followed by for the procedures example, considered, session, evidence documentary and tive the testimonial de deliberation, qualifications the professional the extent of claim, the rea issues involved with reference to the ponent for his conclusion the basis soning by deponent employed deliberations, were preliminary there whether during reached vote, stage at each voting tally to the final and the votes prior deposition during pretrial summary, party In deliberations. to test designed any question ask a panelist should be permitted opinion. credibility value or probative for the remanded Therefore, be reversed and this case must inhibited Such limitation limiting discovery. trial court’s error in trial and dimin- adequately the plaintiffs’ ability prepare force of the evidentiary to test the ished the plaintiffs’ capacity panel’s opinion. merits of this on this issue decides our conclusion
Because intro- issue raised constitutional not reach the we do appeal, issue is trial. That at as evidence duction of the panel introduction, violated such permitting whether Code legislation. invalid special and is rights due plaintiffs’ is the law constitutional in the field of established Firmly of a constitutionality upon that a court will not rule doctrine necessary absolutely statute unless such a determination 512, Va. 232 Denny, Keller v. case on the merits. decision of the Commonwealth, 199 516, 327, Bissell v. (1987); 329 352 S.E.2d Eason v. Com 1, 397, 400, Gayle (1957); 100 S.E.2d 3 Va. 741, The rea 961, 743 monwealth, 958, (1914). 80 S.E. Va. 115 before brought can be “no son for this rule is that questions involve the than those delicacy of greater tribunal judicial of wisdom act, the part it is legislative of a constitutionality [and] the constitu to question legislature for the just and a respect on other determined may if the case of its action tionality v. Common County Henrico Board Supervisors points.” 112, (1914). wealth, 81 S.E. Va. con that the be remanded will The fact that this case retrial, does is a if there again, arise stitutional issue possibly In doctrine. foregoing to the to adhere obligation dilute our
287 Commonwealth, Gayle and Eason v. convictions for viola- supra, tion of a law case was liquor were reversed on and the appeal Court, remanded invoking for further This the fore- proceedings. doctrine, going refused to rule on a constitutional issue in which defendants attacked the of a statute with admis- validity dealing sion of evidence. We ruling cannot that a on the constitutional say issue in the case is present at this time. “absolutely necessary” There are many circumstances in which the constitutional ques- tion not arise in may again this case. For the case example, may settled, or, tried, if the case is not be may evidence, offered in or the case not be to a conclu- prosecuted sion for number of reasons. will
Accordingly, judgment below be reversed and the case will be remanded for further not inconsistent with this proceedings opinion.
Reversed and remanded. CARRICO, C.J., dissenting.
I would affirm that, the judgment of the trial court. I realize in taking this position, I must confront the constitutional question not reached I would decide that in majority. favor question of the medical validity review malpractice procedure.
The plaintiffs acknowledge that the was held procedure consti- tutional in DiAntonio v. Memorial, Northampton-Accomack 628 F.2d (4th Cir. 1980). however, The plaintiffs say, court in DiAntonio ’’did not consider whether the possibility bias inherent in malpractice review panels a violation of due process.”
It is true that the did plaintiff in DiAntonio and the allege, consider, court did Rather, any denial of due process. plaintiff contended that review (1) procedure works a denial of violates the Seventh equal protection, (2) right Amendment to trial (3) constitutes by jury, legisla- special tion IV, Constitution, violation of Art. 14(3) of the Virginia and (4) judicial VI, usurps power violation of Art. 1 of the Virginia Constitution.
The court upheld all procedure against these attacks. I agree with the court’s entirely holding, and I due attack against
would also uphold procedure made here. A fair trial goes due like this: process argument
The plaintiffs’ tribu- Any a fair tribunal is a due requirement process. basic but also avoid nal cases must not remain trying only impartial of a mal- even the Half the members appearance voting of bias. *10 are review health care whose interests practice panel providers are of in medical mal- the interests claimants diametrically opposed to Yet, grants cases. review practice malpractice procedure the con- adjudicatory care substantial measure of providers health a claimants, a offering possible trol over the malpractice providers A decision against panel to decide cases claimants. temptation bias is the prod- in these circumstances of and temptation reached decision-making infirm process. uct of a constitutionally only specu- is but the offer argument interesting, plaintiffs This part of bias on the of lation to substantiate their claim inherent that all health a matter of law health care To as providers. say rendering of fair care and therefore providers incapable biased without any is to indict of categories professionals decisions whole basis. a afford all of review panels pre-
I would members And I would hold that until a of sumption honesty integrity. theoretical, bias, actual, the rather than claimant can demonstrate not be heard to would would and the claimant presumption prevail about a of due process. denial complain I holding disagree, me to with brings majority This the viz., plain- trial erred in the limiting that “the excluding interroga- Stallings of pretrial by tiffs’ Dr. questioning hold that the I would process.” tion about the deliberative Stallings’ the of Dr. limiting court did not err in discovery trial Indeed, right no the had I would hold that testimony. plaintiffs Stallings’ at all. testimony discover Dr. bases, combination, my will support two or in singly
I think testimony the of malpractice view that no First, the are creatures of members is panel permissible. panels the Gen- statute, In creating panels, completely entirely. free, it within constitutional as acted long eral as Assembly it saw fit. But limits, any form to utilize substance to use any the substance were established and in which the form the panels how they mark the outer limits were they with which endowed act and treated. membership may and their In Assembly General provided call, cost, member of the “shall have the at his party right context, chairman, in this witness.” As used panel, except the as a witness,” call of art language meaning “to ... as a a term — one on witness stand in a only thing a member put panel on trial the merits a medical case. could General as it Assembly provide, pro- did
vided, that has member right only a a to call a as party panel a witness but also to member to subject discovery. By pretrial chairman,” use General language, Assem- “except bly limited the members who be called as effectively panel witness,” witnesses. use of the By terminology, “call ... as General Assembly just as limited a member’s effectively role to that of a witness at on a trial the merits of medical mal- practice case.
Second, (j)(l3), Rule Six Medical Rules of Prac- Malpractice tice, that, at provides the conclusion of a “the will hearing, deliberate in executive session.” The obvious of this Rule purpose is to permit free discussion on the merits among panel members case in an atmosphere of This confidentiality. salutary purpose *11 decision, would be if, after a completely thwarted renders a panel its members bemay subjected to unlimited discovery required answer, in the words of majority, designed “any question test value probative reliability opinion.” Such unlimited discovery will have detrimental effects. practical difficult, circumstances, It even the best of enlist qualified health care providers service as members mal- attorneys practice review With panels. extensive testimony members now the order it will be day, well-nigh impossible to enough recruit make qualified persons to up panels. we cannot
Admittedly, let considerations affect the practical that, outcome of this case. I it But think is fair to assume when the General it Assembly adopted the panel procedure, aware of the danger permitting discovery questioning members and did not intend that such should be al- questioning lowed. I would effect give to that intention. R.J.,
HARRISON, joins in dissent.