Ryan NOVOTNY, Plaintiff and Appellee, v. SACRED HEART HEALTH SERVICES, a South Dakota Corporation d/b/a Avera Sacred Heart Hospital, Avera Health, a South Dakota Corporation, Defendants and Appellants, and Allen A. Sossan, D.O. also known as Alan A. Soosan, also known as Allen A. Soosan, Reconstructive Spinal Surgery and Orthopedic Surgery, P.C., a New York Professional Corporation, Lewis & Clark Specialty Hospital, LLC, a South Dakota Limited Liability Company, Defendants. Clair Arens and Diane Arens, Plaintiffs and Appellees, v. Curtis Adams, David Barnes, Mary Milroy, Robert Neumayr, Michael Pietila, and David Withrow, Defendants and Appellants, and Alan A. Sossan, also known as Allen A. Soosan, also known as Allen A. Soosan, D.O., Sacred Heart Health Services, a South Dakota Corporation d/b/a Avera Sacred Heart Hospital, Avera Health, a South Dakota Corporation, Matthew Michels, Thomas Buttolph, Douglas Neilson, Charles Cammock, Lewis & Clark Specialty Hospital, LLC, a South Dakota Limited Liability Company, Don Swift, David Abbott, Joseph Boudreau, Paula Hicks, Kynan Trail, Scott Shindler, Tom Posch, Daniel Johnson, Nueterra Healthcare Management, LLC, Various John Does and Various Jane Does, Defendants. Clair Arens and Diane Arens, Plaintiffs and Appellees, v. Lewis & Clark Specialty Hospital, LLC, a South Dakota Limited Liability Company, Defendant and Appellant, and Allen A. Sossan, D.O. also known as Alan A. Soosan, also known as Allen A. Soosan, Reconstructive Spinal Surgery and Orthopedic Surgery, P.C., a New York Professional Corporation, Sacred Heart Health Services, a South Dakota Corporation, d/b/a Avera Sacred Heart Hospital, Avera Health, a South Dakota Corporation, Don Swift, D.M., Kynan Trail, M.D. Curtis Adams, David Barnes, Thomas Buttolph, Mary Milroy, Douglas Neilson, Robert Neumayr, Michael Pietila, Charles Cammock, David Withrow, Various John Does, and Various Jane Does, Defendants.
Nos. 27615, 27626, 27631
Supreme Court of South Dakota
Argued Oct. 4, 2016. Decided Oct. 26, 2016.
2016 S.D. 75
[¶ 8.] The gifting language in Pease‘s will is not ambiguous. The will does not say “I give all my belongings to my brother Douglas Hubert.” Nor does it say “I give all my belongings to Lisa and Lynn Schock to distribute to my brother Douglas Hubert.” It unequivocally “give[s] all” of Pease‘s “belongings” to Schocks “contingent on” them “giving a share” to Douglas, providing for “Cocky‘s new keeper mom search, and making some arrangements for litigation start monies.” Because “[o]ur inquiry is limited to what the testator meant by what [she] said, not what we think the testator meant to say,” Estate of Klauzer, 2000 S.D. 7, ¶ 9, 604 N.W.2d at 477, we conclude that the will gives Pease‘s property to Schocks subject to the stated conditions.
[¶ 9.] Reversed and remanded.
[¶ 10.] GILBERTSON, Chief Justice, and SEVERSON, WILBUR, and KERN, Justices, concur.
Edwin E. Evans, Mark Haigh of Evans, Haigh & Hinton, LLP, Sioux Falls, South Dakota, Attorneys for defendants and appellants Curtis Adams, David Barnes, Mary Milroy, Robert Neumayr, Michael Pietila & David Withrow # 27626.
Jeff Wright, John Gray of Heidman Law Firm, LLP, Sioux City, Iowa, Attorneys for defendant and appellant Lewis & Clark Specialty Hospital, LLC # 27631.
Gregory J. Bernard of Thomas Braun, Bernard & Burke, LLP, Rapid City, South Dakota, Attorneys for defendant and appellant Kynan Trail joining # 27631.
SEVERSON, Justice.
[¶ 1.] In this action against various health organizations and individuals involved at those organizations, Plaintiffs moved to compel production of peer review materials and asked the circuit court to find
Background
[¶ 2.] Plaintiffs in this action, Ryan Novotny and Clair Arens, were treated by Dr. Alan Sossan. After treatment, Plaintiffs filed lawsuits against Dr. Sossan, his medical clinic, Avera Sacred Heart Hospital, Lewis & Clark Specialty Hospital, and other individual defendants, collectively referred to throughout this opinion as Defendants. The Plaintiffs alleged various causes of action including negligence, negligent credentialing, fraud, deceit, bad faith peer review, unjust enrichment, racketeering, and conspiracy. When Plaintiffs sought production of documents from Defendants, Defendants asserted that some of the materials sought were peer review materials protected under
[¶ 3.] The court held a hearing on the matter and issued a memorandum decision.1 It determined that
[¶ 4.] We granted Defendants’ petition for an intermediate appeal from the circuit court‘s order. Defendants contend that the court erred in two aspects. First, Defendants assert that the court erred by compelling peer review committees to produce documents obtained by the committees from independent sources. Second, Defendants maintain that the court erred by judicially creating a crime-fraud exception to
Standard of Review
[¶ 5.] “Ordinarily, ‘we review the circuit court‘s rulings on discovery matters under an abuse of discretion standard.‘” Milstead v. Smith, 2016 S.D. 55, ¶ 17, 883 N.W.2d 711, 716 (quoting Anderson v. Keller, 2007 S.D. 89, ¶ 5, 739 N.W.2d 35, 37). “However, when we are asked to determine whether the circuit court‘s order violated a statutory privilege, it raises a question of statutory interpretation requiring de novo review.” State v. Vargas, 2015 S.D. 72, ¶ 9, 869 N.W.2d 150, 158 (quoting Andrews v. Ridco, 2015 S.D. 24, ¶ 14, 863 N.W.2d 540, 546).
Analysis
[¶ 6.] We have not previously addressed the questions whether litigants may discover independent-source material directly from a peer review committee or whether an exception to
[¶ 7.]
a peer review committee is one or more persons acting as any committee of a state or local professional association or society, any committee of a licensed health care facility or the medical staff of a licensed health care facility, or any
Peer review committees engage in activities defined by
For the purposes of §§ 36-4-25, 36-4-26.1 and 36-4-42, peer review activity is the procedure by which peer review committees monitor, evaluate, and recommend actions to improve the delivery and quality of services within their respective facilities, agencies, and professions, including recommendations, consideration of recommendations, actions with regard to recommendations, and implementation of actions. Peer review activity and acts or proceedings undertaken or performed within the scope of the functions of a peer review committee include:
(1) Matters affecting membership of a health professional on the staff of a health care facility or agency;
(2) The grant, delineation, renewal, denial, modification, limitation, or suspension of clinical privileges to provide health care services at a licensed health care facility;
(3) Matters affecting employment and terms of employment of a health professional by a health maintenance organization, preferred provider organization, independent practice association, or any other organization of physicians formed pursuant to state or federal law;
(4) Matters affecting the membership and terms of membership in a health professional association, including decisions to suspend membership privileges, expel from membership, reprimand, or censure a member, or other disciplinary actions;
(5) Review and evaluation of qualifications, competency, character, experience, activities, conduct, or performance of any health professional, including the medical residents of health care facility; and
(6) Review of the quality, type, or necessity of services provided by one or more health professionals or medical residents, individually or as a statistically significant group, or both.
[¶ 8.] The privilege granted to materials of a peer review committee is found in
The proceedings, records, reports, statements, minutes, or any other data whatsoever, of any committee described in § 36-4-42, relating to peer review activities defined in § 36-4-43, are not subject to discovery or disclosure under chapter 15-6 or any other provision of law, and are not admissible as evidence in any action of any kind in any court or arbitration forum, except as hereinafter provided. No person in attendance at any meeting of any committee described in § 36-4-42 is required to testify as to what transpired at such meeting. The prohibition relating to discovery of evidence does not apply to deny a physician access to or use of information upon which a decision regarding the person‘s staff privileges or employment was based. The prohibition relating to discovery of evidence does not apply to deny any person or the person‘s counsel
The circuit court determined that the statute contemplates deliberative information and therefore objective information within the committee‘s possession was not subject to the privilege.
[¶ 9.] The statute‘s language “of any committee” encompasses and protects “[t]he proceedings, records, reports, statements, minutes, or any other data whatsoever” that is within the committee‘s possession if it “relat[es] to peer review activities defined in § 36-4-43,” regardless of its origin.
[¶ 10.] Furthermore, the ordinary meaning of the statutory terms records and any other data whatsoever encompasses objective facts. See Krusac v. Covenant Med. Ctr., Inc., 497 Mich. 251, 865 N.W.2d 908, 913 (2015) (determining that the ordinary meaning of the statutory terms record and data encompass objective facts). Such an interpretation is further supported by the statute‘s exceptions. Although the exceptions are not issues in this appeal, the language of the exceptions is important when construing the language in
[¶ 11.] Defendants concede that some documents within the possession of a peer review committee may be discovered from other sources. Defendants have referred this Court to numerous decisions from other jurisdictions generally holding that litigants may obtain, from independent sources, some documents given to peer review committees. Many of those cases interpret state statutes that explicitly address the issue.4 South Dakota does not
[¶ 12.] Relying on and quoting Wheeling Hospital, Sacred Heart advocates for the following rule:
information created by or at the behest of a peer review committee, including a physician‘s application for privileges, is protected and remains protected at all times, regardless of who obtains it; items from independent sources, not generated at the behest of a committee, which were gathered and/or reviewed by a peer review committee do not become privileged simply because a committee gathered and/or reviewed them; and such independent source items are discoverable “from the original, external sources, but not from the peer review committee, itself.”
According to Defendants, information “not generated [by or] at the behest of a committee” falls outside of the protection of
[¶ 13.] Such a rule is consistent with our broad statutory scheme. By their plain language, the statutes protect the “proceedings, records, reports, statements, minutes, or any other data whatsoever ... relating to” the “procedure by which [a] peer review committee” engages in its functions.
it prevents an unreasonably broad application of the privilege, such as protecting documents simply because the committee received them. See State v. Karlen, 1999 S.D. 12, ¶ 31, 589 N.W.2d 594, 601 (“[P]rivileges are to be construed narrowly as they constitute a barrier to the search for truth.“). The rule balances the interests that the medical community and the public have in both allowing frank and effective peer review and in uncovering and recovering from acts of fraud, deceit, and the like. See Pawlovich v. Linke, 2004 S.D. 109, ¶ 14, 688 N.W.2d 218, 223 (recognizing “the important role played by doctors, attorneys[,] and other professionals in reviewing members of their respective profession. Professional societies, through peer review, can and do perform a great public service by exercising control over those persons placed in a position of public trust.“). It is evident that the purpose of the peer review statute is to encourage full candor in the peer review process, and that policy is advanced when information created by or at the behest of a peer review committee is protected. Although Plaintiffs are not entitled to discover any of the materials within the peer review committee‘s possession, Plaintiffs and Defendants may obtain information from other sources in accordance with the rule stated above.
The constitutionality of
[¶ 14.] In light of the broad protection granted under
[¶ 15.] First, we consider Plaintiffs’ right to procedural due process. “To establish a procedural due process violation, a plaintiff must demonstrate that he has a protected property or liberty interest at stake and that he was deprived of that interest without due process of law.” Osloond v. Farrier, 2003 S.D. 28, ¶ 16, 659 N.W.2d 20, 24 (quoting Hopkins v. Saunders, 199 F.3d 968, 975 (8th Cir.1999)). “[T]he individual must be deprived of this right by a state actor.” Id.
[¶ 16.] Plaintiffs invite us to weigh the public policy of peer review confidentiality against their need for evidence and of revealing instances of bad faith peer review. However, neither the circuit court nor Plaintiffs have identified a protected liberty or property interest at stake that has been deprived by the State. Instead, it appears that Plaintiffs assert that their due process is violated by the privilege because it violates their constitutional right to have a remedy by due course of law. The right to have a remedy by due course of law is a separate constitutional right under
[¶ 17.] Plaintiffs primarily rely on Adams v. St. Francis Regional Medical Center, 264 Kan. 144, 955 P.2d 1169, 1184 (1998), to contend that their constitutional rights are violated under
facts)] and thus violated plaintiffs’ right to due process and a fair determination of their malpractice action against the defendants.” Id. at 1187.
[¶ 18.] The situation that existed in Adams does not exist in this case. Plaintiffs have not demonstrated that they have no other access to information necessary for the causes of action that they are claiming. Plaintiffs’ causes of action of fraud and deceit and negligent credentialing do not require evidence directly from the peer review committee. Minnesota‘s Supreme Court has explained that “negligence [can] be shown on the basis of what was actually known or what should have been known at the time of the credentialing decision.” Larson v. Wasemiller, 738 N.W.2d 300, 310 (Minn.2007) (determining that because “the confidentiality provisions of the peer review statute do not preclude the presentation of evidence in defense of a negligent-credentialing claim, ... the confidentiality provision is not facially unconstitutional“). Similarly, deceit includes “[t]he assertion, as a fact, of that which is not true, by one who has no reasonable ground for believing it to be true[.]”
[¶ 19.] We next address the circuit court‘s determination that a “crime-fraud exception” is necessary to protect Plaintiffs’ constitutional right to open courts.
[¶ 20.] The Connecticut Supreme Court has addressed this issue in the context of its psychiatrist-patient privilege. See Falco v. Institute of Living, 254 Conn. 321, 757 A.2d 571, 577 (2000). Similar to South Dakota, Connecticut‘s constitution provides: “All courts shall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.”
[¶ 21.] Likewise, South Dakota‘s peer review privilege does not restrict or destroy Plaintiffs’ ability to bring their causes of action. See Green, 1996 S.D. 146, ¶ 33, 557 N.W.2d at 405 (holding that statute of limitations did not “restrict or destroy the right to bring a cause of action for legal malpractice, but rather, only establish[ed] the period of time in which a plaintiff must assert this right.“). Although the peer review privilege prevents Plaintiffs from discovering material directly from a peer review committee, it does not bar causes of action or abolish the remedy for those actions. Additionally, as we now hold, Plaintiffs may obtain some of the information given to the peer review committees from independent sources.
[¶ 22.] The circuit court and Plaintiffs note that the “crime-fraud exception” is necessary to ensure that the privilege is not abused. They point out that other privileges have a similar exception, such as the crime or fraud exception to the attorney-client privilege. That exception is a codified one. See
[¶ 23.] Nevertheless, carving out an exception in this case is a task better left for the Legislature, which by statute created the peer review privilege. Despite the existence of crime or fraud exceptions to other privileges, in this case, we need not recognize ones in addition to the statutory ones found in
Conclusion
[¶ 24.] The circuit court erred when it ordered Defendants to produce materials in the possession of medical peer review committees. Furthermore, no crime-fraud exception exists to
[¶ 25.] GILBERTSON, Chief Justice, and MYREN and CUTLER, Circuit Court Judges, and STEELE, Retired Circuit Court Judge, concur.
[¶ 26.] MYREN, Circuit Court Judge, sitting for ZINTER, Justice, disqualified.
[¶ 27.] CUTLER, Circuit Court Judge, sitting for WILBUR, Justice, disqualified.
[¶ 28.] STEELE, Retired Circuit Court Judge, sitting for KERN, Justice, disqualified.
SEVERSON
Justice
Notes
- [T]he applications submitted by Dr. Sossan in order to obtain privileges
- [A]ll attachments and collateral information that were attached to those applications
- [A]ll documents that were generated or obtained by the peer review committees to obtain other background information of Dr. Sossan, including any criminal background checks ... and all materials received by the peer review committees from the National Medical Practitioners Databank, if any
- [A]ny other objective information they received in their due diligence endeavor to make reasonable effort to obtain the facts of the matter under consideration
- [A]ll complaints filed against Dr. Sossan by any person or other medical provider ... between the time Dr. Sossan was granted privileges at their facilities and his termination, and any final resolution or other action taken as a result of such complaint.