*1 Mary LARSON, al., Appellants, et M.D., WASEMILLER,
James Preston
Respondent (A05-1698), Wasemiller, M.D.,
Paul Scot al., Defendants,
et Center,
St. Francis Medical (A05-1701).
Respondent A05-1698,
Nos. A05-1701.
Supreme Court of Minnesota.
Aug. 2007.
Rehearing Sept. Denied *2 Wade, Maddix, J. Rob-
Terry L. William Ciresi, L.L.P., ins, Miller & Min- Kaplan, MN, neapolis, appellants. for Solheim, Bjorkman, Mark Louise Dovre Paul, LLP, MN, M. King, Larson Saint Firm, Vogel Fargo, Vogel, Daniel Law ND, P. James Respondent/Defendant for Wasemiller. Hart, Eri- Hagen, A. M.
Rodger William Geer, Strohl, Meagher ca Gutmann & MN, P.L.L.P., Minneapolis, Defendant Clinic, Dakota Ltd. Paul S. Wasemiller Mahoney, Hardy, Mark W. Ger- Robert Paul, Kenney, aghty, O’Loughlin Saint & MN, Respondent Francis Medical St. Center. Whitmore, Lundberg, E.
Mark Charles MN, Remele, Minneapolis, Bassford Association, MN As- Medical Hospital MN sociation, American Medical Association. Bratvold, Morgan, B. Briggs gery. hospitalized Diane Larson remained until P.A., MN, Minneapolis, for MN Defense June
Lawyers Association. claim that Larsons St. Francis was
negligent in Dr. James P. Credentialing Wasemiller. decisions de- physicians termine which are granted hos- OPINION pital privileges specific proce- what perform dures can in hospital. HANSON, Justice. Dallon, Craig Understanding W. Judi- Mary Appellants and Michael Larson Hospitals’ Physician cial Review Cre- malpractice medical commenced this claim Decisions, dentialing and Peer Review Wasemiller, against respondent Dr. James (2000). 597, Temp. grant- L.Rev. The Dr. Paul Wasemiller and the Dakota Clinic ing hospital privileges normally does per- for in with negligence connection employment relationship create with gastric formance of bypass surgery on hospital, physicians but allows access Mary Larson. joined The Larsons also hospital’s and imposes facilities cer- respondent St. Francis Medical Center as professional tain at standards. Id. defendant, claiming, among a things, other grant hospital privileges The decision to that St. granting Francis was a physician is made the hospital’s gov- surgery privileges to Dr. James Wasemil- erning body based on recommenda- ler. St. then Francis moved dismiss for tions of the A credentials committee. cre- failure state a claim. The district court dentials committee type is a dismiss, denied motion to holding Minnesota, committee. like most other recognize negli- Minnesota does a claim for states, a peer pro- has review statute that gent credentialing, but certified ques- two for vides appeals. tions to the court of The court of proceedings grants immunity some
appeals reversed the district court’s denial those involved the credentialing process. dismiss, of the motion to holding §§ Minn.Stat. 145.61-.67 recognize Minnesota does not a common- law cause of action for creden- majori- district court noted Wasemiller, tialing. Larson v. ty jurisdictions courts other (Minn.App.2006). N.W.2d We duty a on part reverse remand to the district court to exercise reasonable care in granting proceedings. further privileges to physicians practice medi- April 2002, Wasemiller, In Dr. James at hospital. cine The court also noted brother, with the assistance of his Dr. Paul duty objec- existence of Wasemiller, performed gastric bypass sur- tively pub- reasonable and consistent with gery Mary on Larson at St. Francis Medi- policy. lic The court therefore held that cal Center in Breckenridge, Minnesota. Minnesota “will and recognize, does experienced Larson complications follow- law, professional common against tort ing surgery, and Dr. Paul Wasemiller hospitals and review organizations neg- performed on surgery April second ligent credentialing/privileging.” complications. to address the On April denying After St. Francis’ being long- after moved to a motion dis- miss, term facility, Larson was transferred district court certified the follow- to MeritCare Hospital emergency ing questions appeals: sur- two court motion for failure recog- denial of a to dismiss Minnesota the state of
A. Does Becking law cause of action v. a common to state claim. Hauschildt nize (Minn.2004). ham, physician of a privileging N.W.2d organiza- or other review questions of law questions are Certified tion? Fed that this court also reviews de novo. Pub. Safety, ziuk Comm’r §§ 145.63-145.64 B. Minn.Stat. Does (Minn.2005). from or otherwise grant immunity other limit turn to the first certified for a claim organization recognizes Minnesota question —whether eredentialing/privileging *4 credentialing. for negligent cause of action of physician? a recog determining In whether Minnesota that appeals held Minneso- The court of particular a cause of action this court nizes common law cause recognize does a ta not any law and must look to the common of a negligent credentialing action of for or restrict the might expand statutes hospital, a and noted against physician power the to law. This court has common mandate Minn. the of abolish common law doc recognize and the 145.64 “limits evidence Stat. Stores, Inc., trines, 582 Lake v. Wal-Mart be to or defend support could used 231, (Minn.1998), as as to N.W.2d 233 well a appears a claim in manner such law torts and their defens define common recog- fairness of affect the fundamental McGinn, 446, es, v. 307 Minn. Schumann * * Wasemiller, nizing a claim (1976). 525, It is also N.W.2d appropri- at 470. The court modify the province legislature the of legis- ately court or deferred this law, Fire Jung the common v. St. Paul policy con- complex lature to address 402, Ass’n, Minn. Dep’t Relief Id. at 468. cerns involved. (1947), are but statutes N.W.2d ques- certified response In second modify alter the com not to or presumed tion, held that appeals court so expressly provide, law unless mon §§ plain of Minn.Stat. 145.63-64 language Fire Ins. & Odessa Mut. Co. Agassiz a or immunity not grant does 156, 166, 272 Minn. Magnusson, organization liability from for other review N.W.2d phy- negligent credentialing sician, limit but that statute does A. Minnesota’s review stat- Does organ- or other review neg- action ute create cause of for izations actions or recommendations “to ligent credentialing? that the in the reasonable belief made by consider, first, or is warranted language action recommendation whether the actually facts after reasonable efforts known creates review statute or which its action to ascertain the facts on credential- cause of action Wasemiller, is made.” 145.63, recommendation provides that ing. Section subd. party Neither 469-70. organization person and no No review challenges appeals’ the court of answer other damages or shall liable question. certified second any by action reason of relief in organization of the review performance sought review The Larsons function, activi- any duty, or person or appeals holding that Minneso the court of or a organization member ty as recognize a claim for ta does not committee or reason de novo of a review credentialing. This court reviews any recommendation action cause action and this leaves us free to committee the person when acts consider whether the cause of action exists in the reasonable action at common law. belief or recommendation is warranted B. Is there a common law cause person known to the
facts action credentialing? organization reasonable after efforts upon ascertain the which the re- facts In deciding recognize whether to organization’s view action or recom- (1) tort, common law this court looks to ** mendation is *. made in, whether tort inherent or the added.) of, natural (emphasis legislature extension has the well-established (2) right, common law authority to create a cause whether the tort of action for has been other negligent credentialing. The common law question is states, (3) 145.63, recognition whether section whether of a subdivision ex- cause of action will presses an intent to so. create tension with do other laws, applicable whether such ten stated in Although negative, the lan- sion is out-weighed the importance of guage implies this statute that a review *5 protections the additional recognition that organization shall be liable for granting provide injured of the claim per would to privileges where the grant is not reason- Stores, sons. Wal-Mart 582 N.W.2d ably on based the facts that or were known at 234-36 (joining majority of states that could been known reasonable recognize that tort priva of of invasion efforts. This language could as be read cy as inherent property, in contract and evidencing legislative intent estab- to liberty rights, but declining recognize action, lish a such cause of whether not the tort of light false because would one at existed common law. increase the tension between tort law and agree We with the Larsons that the speech guaranties). constitutional free immunity provision statute contemplates the of existence 1. negligent Is tort credentialing of cause action of credential in, inherent or the natural exten- ing there would be no need for of, sion a well-established common —otherwise legislature to address the of standard law right? applicable care such action. But we curiae, Amici Hospital Minnesota Asso- are reluctant to conclude that the statute ciation, (MHA), et al. argue that a claim affirmatively creates such a cause of action credentialing is at odds with because the standard of care is stated the common liability law vicarious the negative.1 Minnesota, which hospitals makes liable Ultimately, we need not determine for the negligence employees, but does whether the statute creates a regard cause not independent physicians as em- because, very least, action at the stat- ployees merely granted because are ute negate not abrogate does a hospital privileges.2 But the Larsons ar- question statutory (Minn.2001) When a construction N.W.2d (quoting State 263, 269, expression Moseng, involves a failure of than an v. rather Minn. N.W.2d (1959)). ambiguity expression, "courts are not free to substitute amendment for and construction thereby supply legisla- suggests omissions of the recognition 2. MHA of this tort Mercury ture.” Marquis, Genin effectively v.1996 would overrule McElwain v. Van (a) has reason to know that he knows or the tort of gue that ability conduct has the to control the claim, liability but rather a vicarious persons, the third and hospital’s direct in a grounded duty (b) to exercise common law under its know the neces- at knows or should opportunity exercising in the of health provision sity and reasonable duty protect patients such control. and its services persons. from harm third at 19. In Erickson Id. at Co., Sylvester we cited v. Curtis Inv. curiae, Defense Law Minnesota Amicus duty in the inn protect noted (MDLA), argues that hos yers Association carrier/passen common keeper/guest and protecting credentialing is aimed pital analogous ger relationship is itself, general public hospital relationship. 447 hospital/patient N.W.2d and that persons, class of not a particular (Minn.1989). have also noted Park, City St. Louis under Cracraft duty patients that a has its (Minn.1979), breach a sufficient number of attendants provide public cannot be duty general owed may patients’ safety require. Mul liability. They argue also basis Evangelischer liner v. Diakonniessenver special recognized has this court never the German ein the Minn. Dist. of patient out duty between Am., N. 144 Minn. Evangelical Synod of patient context of direct services. side the 392, 394, 699, 699-700 175 N.W. recognized common generally Two other But we have recognition of the support law torts also directly to duty patients of care owe *6 credentialing. The claim tort negligent of by persons. them from harm third protect credentialing analogous is to negligent of Hospital Sylvester In v. Northwestern of employee, of negligent hiring an had held that a Minneapolis, we in Minnesota. recognized which has been duty patient from another protect to Invs., 331 N.W.2d See Ponticas v. K.M.S. 384, patient. Minn. 389- intoxicated 286 (Minn.1983) 907, (recognizing 909-11 (1952). 90, 17, quot- 20-21 53 N.W.2d hiring brought by negligent claim for § of Torts 320 ed from Restatement apartment of her tenant owner (1934) as follows: raped after the tenant was complex n n * voluntarily takes the who One criminal manager had a apartment who custody of under circumstances another burglary and armed which included record his nor deprive the other of such as (Second) robbery). also Restatement self-protection or to sub power mal of (1958) (“A person con- Agency § of 213 persons with like ject him association through or activity an servants ducting him, duty is under a of ly to harm subject liability for harm agents other is so to exercising reasonable care control negli- if he is his conduct resulting from * * * pre third as to persons employment the conduct of in the gent or reckless intentionally harming instrumentalities vent them from improper persons to others conducting themselves as risk of harm involving the other or so work n * gome *”). recog- jurisdictions an risk of harm to create unreasonable do him, actor, negligent the tort of if nize 442, hospital.” 446 Beek, ployee 447 N.W.2d that "a of the appeals court held where the only vicariously (Minn.App.1989). liable for can be held physician an em- physician’s acts if the is so (1998), as natural extension of the tort Liability which recognizes reason- See, negligent hiring. e.g., Domingo v. expectations able consumer prod- food Doe, (D.Haw. 1241, F.Supp. 1244-45 liability cases); ucts v. Hubbard United 1997); Taylor Singing Hosp. Sys., Int’l, River Inc., 428, Press 438-39 (Miss.1997); (Minn.1983) n. 3 So.2d 46(1) Rodri (adopting section gues Hosp., v. Miriam 623 A.2d (Second) 462- Torts, Restatement which de- (R.I.1993). fines necessary prove the elements in- distress). tentional infliction of emotional tort of negligent eredentialing is Some of the recognized courts have perhaps even directly more related to the the tort of negligent eredentialing do so as negligent tort of indepen- selection of an application negligent tort of se- contractor, dent recognized which has been See, lection an independent contractor. in the Restatement Torts to exist under e.g., Hosp., Albain v. Flower 50 Ohio St.3d certain circumstances. The Restatement (1990); 553 N.E.2d (Second) Corleto provides Torts v. Shore Mem’l Hosp., N.J.Super. 302, 350 A.2d employer An subject
physical harm persons to third caused previous Given our recognition of a hos- by his failure to exercise reasonable care pital’s duty of to protect patients its employ a competent and careful con- from harm persons third and of the tractor analogous tort hiring, giv- (a) to do en general work which will involve a acceptance risk in the common physical harm unless it is law of skillfully the tort of negligent selection of an done, carefully contractor, independent (b) Torts, the Restatement perform any duty we conclude which the em- that the tort of ployer owes persons. eredentialing to third inherent and the natural extension of Although we specifically have not adopted well-established common law rights. tort, this we frequently relied on the Restatement of guide Torts to develop- our Is the tort eredentialing *7 ment of tort law in areas that we have not recognized as a common law tort previously opportunity had an to address. a majority other common law See, e.g., Inc., Sys., v. JLC Food Schafer states? (Minn.2005) 570, 695 N.W.2d (adopting 575 section 7 of Proposed Final Draft No. At least 27 recognize states the tort 1, (Third) Restatement of Torts: Products of negligent eredentialing,3 and at least Doe, 1241, 412, Domingo F.Supp. (1972); v. 985 May 414 v. Twp. Wood River (D.Haw.1997); Crumley 969, 1244-45 Hosp., 862, v. Ill.App.3d Mem’l 257 195 Ill.Dec. Inc., 531, (E.D.Tenn. Hosp., F.Supp. 170, (1994); 509 535 629 N.E.2d 171 Winona Mem’l 1978); Corp. Kuester, 824, Humana Med. v. Hosp., P’ship Ala. Ltd. v. 737 N.E.2d Traffan stedt, 667, (Ala.1992); 597 So.2d (Ind.Ct.App.2000); 668-69 828 Ferguson Gonyaw, v. 833, 685, v. Hosp., 543, Fletcher S. Mich.App. Peninsula 71 P.3d 64 236 N.W.2d 550 (Alaska Ctr., 2003); Inc., (1975); 842 Taylor Tucson Med. Singing Hosp. v. Sys., v. River Misevch, 34, 958, 75, 113 (Miss.1997); Corleto, Ariz. 545 P.2d 960 704 So.2d 78 3n. (1976); College Hosp., 537-38; Feil, Elam v. Park 132 Cal. 350 A.2d at v. 118 N.M. Diaz 332, 156, App.3d (1982); 385, 745, Cal.Rptr. (1994); 183 160 P.2d 881 749 v. Sledziewski Gilbert, 374, 186, Colo.App. 913, Kitto v. Cioffi, 39 570 P.2d 137 A.D.2d 528 N.Y.S.2d 915 544, (1977); LaBella, Insinga 550 v. (N.Y.App.Div.1988); 543 Blanton v. Moses H. 209, (Fla. 1989); Inc., 372, So.2d 214 County Hosp., Mitchell Cone Mem’l 319 N.C. 354 Joiner, 140, 455, Hosp. Albain, (1987); Auth. v. 229 Ga. 189 S.E.2d S.E.2d 458 553 N.E.2d
307 See, e.g., v. negligence. Johnson Miseri recognize states three additional theory negligence, Cmty. Hosp., 99 Wis.2d corporate cordia broader (1981) 156, specifically (noting 163-64 though have even In credentialing.4 if negligent is foreseeable patients identified harm to fact, only that have considered two courts staff properly fail to evaluate monitor credentialing have H. Blanton v. Moses Cone physicians); argue Larsons outright rejected it.5 The Inc., 372, Hosp., 319 N.C. 354 Mem’l of the claim recognition this broad (1987) 455, (noting corpo S.E.2d 457 hospi- consensus that evidences a national appli “is no more than the negligence rate duty patients law owe a common tals negligence”); .principles cation of common law making pri- care when exercise reasonable Park 132 College Hosp., am v. El vileging decision. 156, 332, 160 Cal.Rptr. 183 Cal.App.3d (1982) (“[T]he primary consideration is recog- other The decisions of states risk.”). forseeability of the credentialing rely nize the tort rationales, fall essentially which on various Bryant, Washington In v. Pedroza following groups. into explained policy rea- Supreme Court Corporate Negligence Direct adopting theory corporate sons for negligence. the tort of Some courts negligence re- corporate The doctrine of simply appli- perception of the mod- public’s law flects the principles common
cation
broad
253,
326,
1045;
Hosp.,
258
Hosp.
33 Ill.2d
211 N.E.2d
Perry
v.
Mem’l
Trust
Strubhart
Auth.,
263,
(1965)
having
(Okla.1995);
(hospital
liable for not
Welsh
could be
P.2d
276
903
504,
581,
failing
enough
care and for
Bulger,
586
nurses
bedside
v.
548 Pa.
698 A.2d
staff);
surgical
(1997); Rodrigues
Hosp.,
require
consultation with
v.
623 A.2d
Miriam
Diaz,
456,
(R.I.1993);
(hospital
Cmty. Hosp.
749
could be liable
ern as a tialing multifaceted health are “an inseparable activities part facility responsible care the quality for of the medical pa- services received of care and Elam, (not- medical treatment rendered. tients”); Cal.Rptr. 183 161 at community hospital The into has evolved ing precedent that case that a establishes institution, corporate a assuming “the hospital duty protect has patients a of comprehensive role health center hospital’s from that a harm and failure to ultimately responsible for and arranging insure the competence of its medical staff coordinating total health care.” creates an unreasonable risk of harm 226, 166, patients). 101 677 P.2d Wash.2d Southwick, Arthur F. (quoting Hospi The Negligent Hiring tal as Institution—Expanding Respo nsibi Some courts view the tort negligent of Change Relationship Its lities with the credentialing as the natural of extension Physician, 9 Cal. W.L.Rev.
Staff
hiring. See,
the tort
e.g.,
of
Rod
(1973)). The Pedroza court went
on
rigues
Hosp.,
v. Miriam
623 A.2d
say:
(R.I.1993) (noting
liability
aof
implement
duty
To
providing
this
of
hospital for negligent credentialing is anal
competent medical care
patients,
ogous
an employer
of
responsibility
is the
of
institution
negligent hiring,
premised
which is
on the
system
whereby
create workable
“failure to exercise reasonable care in se
the medical
of the hospital
staff
continu-
lecting person
who
employer
knew or
ally reviews and evaluates the
quality
should have known
unfit
incompe
was
being
rendered within the institu-
tent for
employment, thereby exposing
tion ...***.
hospital’s
role
nois
parties
third
to an
unreasonable risk
longer
furnishing
physi-
limited
harm”);
Doe,
Domingo v.
F.Supp.
cal
equipment
facilities and
where a phy-
(D.Haw.1997)
(noting that hos
sician
private patients
treats his
pitals
in superior position
are
to monitor
practices
profession
his
in his own indi-
physician performance
control
vidualized manner.
underlying
the rationale
a cause of
(quoting
St. Francis’ credentialing process, and the patients proof common law claim is too narrow bear the burden of on negli- because gence. shown on negligence could be the basis of actually
what was
known or what should
Both
Wyoming
rejected
Ohio and
have
have been known at the time of the cre
argument
confidentiality pro-
that the
Diaz,
dentialing decision. See
881 P.2d at
visions of their
pre-
review statutes
(should
Corleto,
known);
750
350
negligent credentialing.
clude
claim of
(had
know); Albain,
A.2d at 538
reason to
Relying
“original
on the
source” and “mat-
(had
know).
[i]nformation, a hospital defending vent from itself documents or records oth- against a negligent credentialing. original erwise available from sources Burt, Browning v. Ohio St.3d discovery shall not be immune from N.E.2d In holding any merely use civil action because confidentiality similar provisions do not during were presented proceedings preclude claima for negligent credential- of a organization, nor any shall ing, the Supreme Court Wyoming rea- person who testified before review or- legislature soned that “[i]f the had wanted ganization or who is a it member of to prohibit actions hospitals for prevented testifying from as to matters breaching their properly duties to super- person’s within knowledge, but a the qualifications vise and privileges of witness cannot be about asked the wit- staffs, their it medical would have done so testimony organi- ness’ before a review expressly. We will not privi- construe the or opinions by zation formed the witness lege to impliedly prohibit statute this cate- as a result hearings. of its gory of negligence actions.” Greenwood 145.64, § Minn.Stat. subd. Wierdsma, (Wyo.1987) P.2d Thus, although 145.64, section subdivi- (citations omitted). sion prevent hospitals would from dis- Although provision closing the fact that certain information may Minnesota’s review statute make was considered the credentials commit- proof common negligent-ere- law tee, it not prevent hospitals would from dentialing claim more complicated, we con- introducing information, the same as long clude that it not preclude does such a as it could be original obtained from claim. In this respect, sources. the confidentiali- The Liability Limited Provision ty provision may provide greater advan- tage 145.63, patients than to because a Minn.Stat. subd. provides what actually knows information it some immunity liability, from why granted considered and both for privileges individual credentials committee may emphasize and it members and hospitals, brought information that claims strongly physician most either a or a supports patient. its decision. Section 145.63, difficulty provides proof may fall subdivision heavily most on the patients because the effect of the stat- organization No person and no preclude ute is to discovery director, of what who is a member or employee, evidence actually of, was obtained hos- advisory officer who acts *11 unless so ex to, right common law it does furnishes counsel or or
capacity
who
Corp.,
to,
organization
Wirig Kinney
a
Shoe
pressly.’ See
review
shall
services
(Minn.1990).
in
Al
damages
for
or other relief
liable
be
person
per-
a
or
any
brought by
action
though
plain language
the second
the
or are
whose activities have been
sons
145.63 does limit the
sentence of section
by
or reviewed
a re-
being scrutinized
com
hospitals and credentials
by
of the per-
reason
organization,
view
mittees,
way
intent
to
it in no
indicates
any duty,
by
person
formance
the
to
com
abrogate
or
a
hospitals,
immunize
function,
activity
such review or-
or
credentialing.
mon law claim for
performance of
unless the
ganization,
fact,
evi-
conjunction
in
with the
In
read
duty,
activity
or
was moti-
function
such
sec
dentiary
discovery
restrictions of
person
the
af-
by malice toward
vated
145.64,
statutory
suggests
tion
the
scheme
thereby.
organization
No review
fected
credentialing
for
decisions
that civil actions
no
be liable
dam-
person
shall
contemplated.
legisla
the
are
If
indeed
by
any
action
ages or other relief
possibil
to
the
ture had intended
foreclose
the
of the
performance
review
reason
cre
ity
of a
of action for
cause
duty,
any
or
func-
organization
person
the
dentialing, would not have addressed
tion,
activity
organization
a
or
as
review
applicable to
standard of care
or
a member of a review committee
or
action.
or
any recommendation
by reason
when the
that
sen-
argues
action of
review committee
St. Francis
the second
belief that
acts
the reasonable
person
145.63
a standard
tence of section
creates
or
is
action
recommendation
war-
different
of care
from
standard of
person
ranted
facts known
claim,
to
applicable
simple negligence
after
organization
review
reasonable
elevating
proof
the burden of
effectively
upon
to ascertain the facts
which
efforts
against
in a
necessary
succeed
claim
rec-
organization’s action or
the review
credentialing
That
hospital for
decisions.
ommendation is made.
per-
liability “when the
precludes
sentence
argues
this limitation on
that the
St.
in the reasonable
Francis
son acts
belief
permitted
liability raises
threshold for
warranted
action or recommendation is
organizations,
pre-
claims
person
facts
or the
known
cluding recovery
simple negligence.
organization
reasonable efforts
as-
after
argue
Larsons
second sen-
upon which the
certain the facts
merely
tence of section 145.63is
codifica-
organization’s action or recommendation
* *
standard of care
of the common law
words,
tion
In other
made
hospitals,
language
that the
reasonably
if it
cannot
liable
acted
actually contemplates
creden-
provision
ac-
on information
based
simple
tialing
negligence.
claim based on
In our
tually
had reason
know.
knew or
view,
provision
codification
statutory
construc-
Under
rules
ordinary
stan-
negligence
court, a
common law
this
generally
tion
dard.6
abrogate
will
be construed
statute
1768(a) (2006), clearly elevating
stan-
language
comparison
of the Dela-
A
something
negli-
proof
greater than
highlights
dard of
issue.
ware
review statute
this
Svindland,
held
gence.
court
provides
In
federal
review statute
The Delaware
"nearly
statute makes it
long
person
the Delaware
immunity from
suit so
impossible
gross
assert
good
without
faith and
"acted
plaintiffs did
negligence,"
claims” and dismissed because
Ann. title
wanton
Del.Code
*12
liability provisions
fully
peer
conclude that the
in
pate
review activities.”
Amaral,
materially
of 145.63 do not alter section that, the common law standard of care and argue policy The Larsons that consider- although confidentiality provisions of weigh ations in favor of the tort because present in section 145.64 some obstacles allowing patients to hold hospitals liable proving both and a claim of defending negligent credentialing for will lead to negligent credentialing, pre- do not responsible more reasonable and creden- clude such claim. decisions, tialing thereby improving the
quality of health care. St. and Francis argue amici that of a recognition negligent- policy Do the in considerations Jh fa- credentialing quality claim will harm the of vor the tort creden- because, in health care if physi- Minnesota tialing outweigh any tension caused may subject negli- cians to for peer with the review stat- conflict credentialing, they gent will be reluctant ute? participate peer to in review. of peer provide function review is to argues St. Francis also recognition that analysis critical competence a negligent-credentialing tort is not nec- performance of physicians and other essary patients prove because who that a health providers care order to decrease physician’s negligence them harm caused malpractice improve incidents of compensation are entitled to full from the quality patient care. Richard L. Grif physician and his her employer. Parker, fith & Jordan M. With Malice Buckman, Schneider Toward The Metamorphosis None: (Minn.1988). The Larsons counter Statutory and Common Law Protections malpractice against problem claims Physicians and Hospitals Negligent physicians likely compensate are not Credentialing Litigation, 22 Tex. Tech. patients physicians because those are the (1991); L.Rev. Kenneth R. Kohl likely least adequate malpractice berg, The Peer Privilege: Medical Review insurance. The Larsons reason if Measures, A Linchpin Safety Patient hospital grants privileges problem to a 86 Mass. L.Rev. physician, public policy This goals are well by holding court has held that the served purpose Minne liable for injuries not compensated sota’s physi- review statute promote cian’s insurance. strong public interest in improving health by granting protections certain argues St. Francis also the trial organizations, Amaral v. medical negligent-credentialing present claim will Saint Cloud Hosp., 598 N.W.2d procedural serious issues in addition (Minn.1999), and to encourage the medical effects limitations of the profession police its own activities with argues It physicians statute. who are judicial interference, minimal Campbell v. defending faced with malpractice a medical 379, 389, Mary’s Hosp., St. 312 Minn. 252 claim within the same trial as a negligent- (Minn.1977). This court unfairly claim will be preju- has quality also that “the negative diced the admission of infor- patient care compromised could be if fel mation that relevant to the credentialing professionals low are reluctant partici- process, but is irrelevant to the determina- not claim malice or bad faith. proof 2006 WL does not elevate the standard of in this 3209953, at *3-4. The Minnesota statute manner. preclude statute do not Francis claim. St. malpractice tion of the of a of evidence defense presentation that, prejudice, type to avoid this argues claim, we conclude negligent-credentialing pro- to allow bifurcated will have courts confidentiality provision is fa- increasing the time ceedings, thereby cially leave for an- unconstitutional. We litigation. expense day question of whether circum- other *13 neg recognize that a claim of We the might arise that would render stances credentialing questions about raises ligent applied. provision unconstitutional trial and the necessity of a bifurcated the remanded. Reversed and confidentiality immunity scope of and the peer the review statute. We provisions of PAGE, Justice, no in the part took issue recognize that there is an likewise or decision of this case. consideration patient prove must first about whether (con- BARRY, ANDERSON, G. Justice part be physician on the negligence curring). negligently can be liable fore I in the result reluctantly concur But, part, credentialing physician. majority. Minnesota Stat- by reached management are of trial questions these (2006) clearly contemplates utes 145.63 judge. the trial that are best left to organiza- a review cause action Chems. Corp. v. Union Carbide Conwed negligent credentialing tion for when the Co., Inc., 634 Plastics and organization fails to make a reasonable (Minn.2001). Further, they cannot n. 11 itself of facts or fails to effort to inform effectively in the context of addressed said, I reasonably facts. That act on those this Rule 12 motion. efficacy skeptical am of im- credentialing litigation as a method con policy conclude that the We separately, I care. write proving health underlying the tort of siderations however, my concern that our express policy credentialing outweigh the consider may fulfilling statute not be peer review peer statute ations reflected review purpose encourage the intended and policy considerations are because the latter important issue. legislature to revisit this preclusion adequately addressed gov- body or The main administrative ma peer to the confidential review access over- responsible board that is erning terials. therefore hold often activities of a seeing does exist entirely primarily or of non- comprised Minnesota, by Minne precluded is not and Qual- al., et physicians. Spaeth Ronald G. reverse peer statute. We sota’s review Structure: ity Hospital Assurance appeals of the court of the answer Relationship Physician-Hospital How the ques question, answer that first certified Measures, 12 Annals Quality Affects affirmative, and remand tion in the (citing Paul L. L. Health proceedings further con district court for Scibetta, Restructuring Hospital-Physi- opinion. with this sistent Quality De- Patient Care cian Relations: challenge dicta The Larsons also Hospital Peer Re- pends on the Health of noting appeals opinion, in the court view, Pitt. L.Rev. U. peer confidentiality provisions of the (1990)). on the rely must The board thus may present process due peer
review statute physicians to evaluate hospital’s staff pro- quality negligent-credential in the trial of a performance, issues and “the level upon how well patients depends we have concluded ing claim. But because vided credentialing and processes of the provisions review are carried out their physi- review demanded [the will law] cians.” Id. at 237. formality, an empty become if undertak- en all.
Despite the central of peer role care, in ensuring quality physicians are Scappatura Baptist Hosp., 120 Ariz. often participate reluctant in the peer 584 P.2d process and have little motivation encourage review, To robust all to participate aggressively meaningful- government states and the federal ly. Peer review participants receive no statutes protect peer enacted compensation for their time. Id. at 238. participants through immunity, privilege, They face the social tension that comes confidentiality, or some combination with evaluating criticizing peers along Scheutzow, three. Susan O. State Medical *14 with the possibility reprisal of in the form Peer High Review: Cost but No Benefit— of patient They may lost referrals. Id. Is It Time a Change?, 25 Am. J.L. & legal repercussions also face from their (1999). 7,Med. These run statutes coun Id. decisions. at 237-38. The threat of law, general ter to the trend in the which lawsuits, discovery, and burdensome stifles has abrogate privileges been to and immu “[f]ree, uninhibited of communication nities. Id. at 17. information and peer within the review committee imperative [that] is to the pro- debate, It open is however, whether goal analysis fessed of critical profes- of actually these promote measures effective sional conduct.” L. Richard Griffith & peer review. A 1999 in article the Ameri- Parker, Jordan M. With Malice Toward can Journal Law and Medicine ana- Metamorphosis None: The Statutory lyzed data available from the National and Common Law Protections Physi- (NPDB)7 Practitioner Data Bank and con- Hospitals cians and Negligent Creden- they Scheutzow, cluded do not. See tialing Litigation, 22 Tex. Tech. L.Rev. supra, at 8. The article suggests peer (1991). Congress When enacted protection statutes are insufficient the Health Quality Act, Improvement Care they because do not address “the loss of it private found that money “[t]he threat general referrals and may ill-will that be damage under [state and] Federal generated by sanctioning a colleague.” Id. laws, including damage treble liability un- at 19. der law, Federal unreasonably antitrust discourages physicians participating from Minnesota law contemplates a cause of professional effective peer review.” 42 by patient against action a peer review 11101(4)(2000). § U.S.C. (MinmStat. organization 145.63), § but Review peers protects one’s product organiza- within a work of the only tion time-consuming, with unpaid privilege and confidentiality work, (Minn.Stat. it likely generate (2006)). is also bad 145.64 A plaintiff feelings and in unpopularity. result If alleges negligent who credentialing must by unhappy lawsuits reviewees can easi- show organization * * * ly any follow decision then the reasonably, failed act but prohibited computerized 7. The NPDB is a monitoring incompetent national physicians direc and tory malpractice judgments, of information on clearinghouse "serves as an information actions, payments, disciplinary settlement peer review boards can check when evaluat suspensions license and revocations. Scheut ing physician’s ability practice quality zow, supra, at 8 n. 9. It was established medicine.” Id. provide Congress to for effective interstate merely presented because were ba- action discovering the 145.64 from by section organiza during of a review proceedings organization’s deci- sis for the * * *.”). Thus, only it is documents evidence tion source of most obvious sion—the peer review or created originally of that decision. the reasonableness truly “[D]e- that are off-limits. ganization Goldberg, The Peer Review B. Abbott immunity spite current a Valid A Law in Search Privilege: large it is not uncommon for legislation, & Med. Policy, Am. J.L. review documents to portion public policy matter “[A]s mal a medical considered discoverable a cause little sense to create makes al., Spaeth supra, et practice action.” then, by creating privilege, action al., Healy M. et (citing it.” establishing Id. Jason means of destroy the Confi Quali dentiality Health Care Provider at 159. 40 Brandeis L.J. ty Information, Care Furthermore, appear to be no reli there (2002)). Therefore, “denial of the how, exactly, privilege and able studies im should have little privileged documents confidentiality statutes affect ability to maintain any on pact patient’s plain lawsuits and whether malpractice.” for medical cause of action tiffs, both suf participants, or peer review Ctr., 297 Ill. Med. Ill. Masonic Doe The conventional wisdom fer in the end. *15 411, 240, N.E.2d 231 Ill.Dec. App.3d discovery peer review that the bar to is (1998). course, limiting the 707, 711 Of be plaintiff, the will burden documents prevents hospitals in this manner privilege the plaintiff the bears burden cause hiding malpractice suit from faced with a Graham, See, Christina A. e.g., proof. it funneling incriminating information Comment, Discovery in Seek: Hide and through the review committee. peer Peer the State and Federal Context the Ill. Hosp., 257 Twp. May v. Wood River Privileges, 30 Cumb. L.Rev. Review 969, 195 Ill.Dec. 629 N.E.2d App.3d (2000). true in probably is This (1994). discoverability of But the circumstances, in certain cases but most reports quality and similar assur incident may ham confidentiality requirement the significant “constitutes ance measures by preventing defendants per peer process. review impediment demonstrating that did from reluctant to create Physicians will be obtain information not and could not to lawsuits can subse if parties records ques into competence physician’s called R. Kohl them.” Kenneth discover quently tion. Privilege: Medical Peer Review berg, The merits of the theoretical Whatever Measures, Safety Linchpin Patient A confidentiality § and 145.64’s Minn.Stat. L.Rev. 86 Mass. ultimately may protections, they privilege enjoy qual participants also stat- Peer review consequence of little because be § 145.63. immunity under Minn.Stat. discovery any and ified disclosure ute allows Minnesota, majority of states pa- “[t]he Like reports, incident information —such as immunity, imposing information, charts, records, qualified billing tient require threshold safety statutory hurdles the infor- medical error and general taken peer actions be original ment from source. mation —available reasonably (“Informa- malice, good faith 145.64, § without subd. Minn.Stat. immunity.” Smith in order to invoke the tion, avail- or records otherwise documents Inc., 639 Hosp., Lady Lake be v. Our shall not original able from sources (La.1994). any civil discovery or use in So.2d immune from qualified immunity But the may partial afforded It be that a solution is found section 145.63 likely to be of little changes com- to these and im- participant. fort Under munity provisions. perhaps part Or statute, a negligent-credentialing plain- may solution lie in revisiting the creden- tiff must demonstrate review tialing machinery. It is also worth noting organization did act based on a reason- negligent-credentialing actions are a able belief or make reasonable efforts to very piece larger small in a much puzzle, ascertain the facts—but failure to exercise malpractice litigation, medical always reasonable care is the basis aof possible best route to reform runs See, negligence e.g., action. Funchess through larger present issues in the Corp., Cecil Newman 674 medical malpractice debate. But whatever (Minn.2001) (Second) (citing Restatement suggested improvements surface, might (1965)). § of Torts In order to recov- place to address these issues is er, therefore, a negligent credentialing legislative executive and branches our plaintiff prove would need to that the peer government, an I exercise would encour- review organization’s decision was unrea- age forthwith. even in sonable absence Minn.Stat. statute, 145.63. With without the ANDERSON, PAUL H. (concurring). negligent-credentialing case will most like- join I in the concurrence of Justice Bar- ly proceed summary least judg- ry Anderson. stage, ment as the reasonableness of organization’s decision will not generally disposed of on pleadings
but require discovery will expert testi-
mony. It is therefore not clear to me what
section 145.63 accomplishes, other than
preventing negligent-credentialing and pri-
vileging from turning into strict
torts. Minnesota, STATE Respondent, An response obvious would strengthen immunity provision and im munize peer review participants from lia Courtney CLARK, Appellant. Bernard
bility to patients unless the organization performed No. A06-1765. its duties reckless ly or with malice. But for those who Supreme Court of Minnesota. argue, here, as the appellant does prospect of a negligent-credentialing claim Sept. forces up shore defective cre dentialing procedures, a stronger immuni
ty provision may discourage adverse
review decisions. argument advanced
by appellants essentially that “institu
tions and individuals responsible held
injured patients failing perform ef
fective diligent review will be more
policing profession taking correc Scheutzow,
tive actions.” supra, at 56.