*1 (1985)2d B.F. Cо. Dist. Goodrich 924, 931: M.D., PEPPLE, Appellant W. David (Plaintiff Below), ‘control’ simply “In situations wrong word and the courts should determine whether the evidence reason- HOSPITAL, MEMORIAL ably explanations PARKVIEW eliminates other than (Defendant Below). negligence.” INC., Appellee
the defendant’s view, my this case. No. 92A03-8701-CV-10. I therefore concur the affirmance of Appeals judgment because the evidence does Third District. that event demonstrate was more probably negligence occasioned Aug. 1987. the defendant than some other cause. 14, 1987. As Corrected Sept. Here, what well have been an oth- Rehearing 22, 1987. Denied Sept. appropriate negligence erwise inference of application ipsa loquitur through of res inappropriate by
was rendered the testimo-
ny concerning power deficiency as the
likely cause of the malfunction. II, respect
With to Issue I believe that
the defendant’s direct examination of wit- opened
ness plaintiff’s Stuard the door for
proffered concerning the occur- September, Accordingly,
rence of
believe was error for the trial court to testimony. However,
exclude
clude that suсh error was harmless permitted fully explore
defendant was
the circumstances of the occurrence in
cross-examining aspect Stuard. The only covered, thereby the occurrence not fact, non, injury vel to the then
occupants of the elevator. uncovered September, 1982 event was
not relevant case before us. III, respect to agree
With Issue correctly give trial court refused
plaintiffs’ tendered Instruction 1Nos. my view,
10. In tendered Instruction No. plain-
was defective because it stated that injured
tiff fact the elevator.
Quite reason, clearly, and with
issue was in dispute. Instruction tendered,
No. erroneously advised jury give more weight to one class of
evidence than to another. exception
With the of the matters herein
stated, I agree can do with the decision judgment should be
affirmed. *2 procedures required
amination of the by by-laws; that this Court’s decisiоn in Parkview, supra, forecloses review of the substantive even an arbitrary issues under standard because the records, proceedings, and communications within the committee are privi- leged confidential; that the privilege case; has not been waived and that consequently, hospital’s decision to lim- Pepple’s surgical privilege not re is viewa- This appeal ble. ensued.
Pepplе
four issues for review.
raises
As
restated,
the issues are:
whether
judicial review a
hospital’s actions is limited to a re-
procedures
view to insure that
found
hospital’s by-laws
within
followed, may
have been
a sub-
stantive review be conducted
deter-
mine
acted
whether
trarily
capriciously;
whether there existed a
issue
the hospi-
material fact whether
Sowers,
Connolly,
Ronald L.
Robert E.
regarding Pepple’s
tal’s decision
sur-
Sowers, Larson,
Connolly,
&
Riebenack
gical privileges
and ca-
appellant.
Fort Wayne, for
pricious;
Strunk, Jr.,
T.
Martin
Russell
T. Fletch-
(3) whether
IND.CODE
34-4-12.6-4
§
er,
Gallmeyer,
Rothberg,
Fruechtenicht &
excepts
the communication
Logan,
Wayne,
appellee.
Fort
present
from the
requirements of IND.CODE 34-4-
§
HOFFMAN, Judge.
12.6-2; and
Plaintiff-appellant
David
M.D.
sufficiently
estab-
appeals
summary judgment
an adverse
en-
negligence
lished
claims
tered
by the trial court
favor of defend-
beyond
breach of contract
considera-
ant-appellant
Parkview Memorial
precluded by
tion of the evidence
concerning
of this
(The
IND.CODE 34-4-12.6-2
Peer
§
Act).
Review
34-4-12.6-2,
under
pre-
IND.CODE
§
generally
understood
viously
determined
inter-
Court on
may act at its discretion
locutory appeal.
Parkview Memorial
decisions, including
privi
and its
denial
Hosp.,
(1985),
Ind.App., 483
Inc. v.
leges
physician,
to a
are not
Subsequent
N.E.2d 469.
this Court’s
37 ALR.3d
review. See
Parkview,
grant-
decision in
the trial court
(annotation
on the exclusion
ed
summary judg-
motion for
Parkview’s
hospitals).
it is established that
Once
4,1986
September
ment.
On
trial court
private,
is indeed
role
alia,
concluded inter
received
the court is
restricted
determination
every
process right
conferred
proce
complied
institution
by-laws;
Parkview is a
by-laws.
set
dures
out in its
institution;
not-for-profit
re-
Reid,
hospital’s
view a
determination
Kiracofe
(1984),
1134, 1139;
exclude a
to an ex-
limited
Yarnell
Sisters
St. Francis Hlth.
issue questioning
(1983), Ind.App.,
Serv.
actions
is sub-
sumed in the discussion of the first issue.
Pepple is entitled to no such review.
basis,
After
on this
sev
gratui
eral of this Court’s decisions have
Next, Pepple asserts that
IND.CODE
tously
hospital’s procedures
added that a
(1983
34-4-12.6-4
Supp.) excepts
§
*3
arbitrary.
and its decisions should not be
communications in
privi-
this case from the
See,
Regional Hosp.,
Terre Haute
lege
Inc. v.
Act,
found within the Peer Review
(1984),
El-Issa
(1983
IND.CODE 34-4-12.6-2
Supp.). In
§
1371, 1382;
Ind.App., 470 N.E.2d
Parkview
Hosp.,
Memorial
Inc. v.
supra, Ind.App.,
469, 470,
483 N.E.2d
Kiracofe, supra, 461 N.E.2d at
Court determined that IND.CODE 34-4-
Yarnell, supra,
§
Mem. et al. v. Hall 141 Ind. exception, to the confidentiality 203, (exclusion App. aof privilege, and found within IND.CODE public hospital may at a not be provides 34-4-12.6-4 profes § “[a] unreasonable, arbitrary capricious).2 In provider, sional health care a review stead, Pepple contеnds that governing board of a must necessarily include a substantive com professional orga health care ponent to be effective. The source of this nization use information obtained substantive immediately ap review is not legitimate committees for in parent. Absent some state action or state purposes, including ternal business their participation, process rights the due found (Emphаsis added.) own defense.” While within the Fifth and Fourteenth Amend this action stems from an internal inapplicable ments are business private institut proceeding, Pepple seeks Kiracofe, supra, ions.3 now to use the 461 N.E.2d at Therefore, judicial proceeding.4 1139-1140. communications in a Parkview’s decision may not be stage reviewed for arbitrariness and Use communications at this capriciousness. pur- would be neither for internal business concurring opinion Kiracofe, 1. In capricious freely his and standard of review was which, Judge posits great Ratliff a view after applied. Kennedy There is no indication in simplification, suggests that the differences be- public private hospital. status of the few; public hospitals tween thus, and also, Ezpeleta Mercy v. Sisters Health by private hospitals actions should also be (7th Cir.1986) (Cоurt Corp. 800 F.2d subject to some limited review. 461 N.E.2d at expressed applying arbitrary reservations 1144. This view stretches normal due pri- standard of review actions of boundaries. though support vate even for Kennedy). standard found in standard, 2. ap- if plied institutions would be tanta- unreasonableness, interesting apparently privi mount to the 4.It to note that capriciousness plaintiffs leged trariness or accorded сommunications were available to the questioning public hospitals. El-Issa, the decisions of Kennedy, supra; supra; Kira Therefore, capri- review for arbitrariness and Yarnell, cofe, supra; supra. ciousness would blur the distinction between may be waived. IND.CODE 34-4-12.6-2. § public private hospitals. Pepple presents question no whether Parkview privilege. has waived the Kennedy Joseph In Hosp. v. St. (1985), defense, poses sug- majority opinion as he here suggests insofar as it gests. argument must fail. the Kennedy applied the stan- public dard to a hospital. Pepple alleges
In his final issue that the trial court’s determination no I believe it perhaps by unfortunate that fact exists issue of material as to his majority opinion inadvertence the today claims, in error. contends that suggests Kennedy that the court did not excluding informаtion, privileged “arbitrary articulate the capricious” genu- has stated sufficient facts to raise a standard in the context of hospi- a Specifically, ine issue of material fact. hand, accurate, tal. On the other to be Pepple argues depo- that the affidavits and wholly proper not be say colleagues pro- sitions of his establish his court, Kennedy consciously and intention- exсellence; thus, fessional ally applied the standard hospi- necessarily arbitrary and ca- actions were tal. pricious. articulating applicable standard *4 Notwithstanding any failure in case, particular kind of I believe it is fair to logic, insufficiency in the evidence assume that unless stated the otherwise presented, Pepple is not entitled to review apply court intended to that standard to the arbitrary capricious an and standard. C.J.S., case before it. 21 See Courts error, Having presented no reversible (1940). not, 186 222 and If the court §§ trial court’s decision is affirmed. indulging misleading in a recitation of principles However, irrelevant of law. I
Affirmed. that, must if Kennedy court in- STATON, J., concurs. “arbitrary capri- tended to extend the and private hospitals, cious” standard to it did SULLIVAN, J., dissents with not do inso a clear and unmistakаble man- opinion.5 ascribing ner. Even to the Kennedy court SULLIVAN, Judge, dissenting. unlikely1 intention to limit the standard majority holds that an and public hospitals, to one would think such capricious by private hospital decision a to clearly limitation would have been set physician’s curtail a privileges is not event, forth. I can no more ascribe judicial respectfully to review. decision, Kennedy a construction dissent. аpply only the standard public hospitals, than I At can least one Indiana Kennedy v. say science that it intended Joseph Hospital Kokomo, St. to extend the Memorial standard, time, (1985) for the first Ind.App., 1st Dist. 482 hos- course, appeared pitals.
N.E.2d
apply
has
a stan-
Of
am of the view that the
permits
dard
private hospi-
apply
“arbitrary
capri-
review of
decision did
and
tal
capricious-
actiоn for
hospital.
arbitrariness
cious” standard to a
Ac-
disagree
ness.
cordingly,
majority’s
with footnote 3 of the
I take issue
great
appropriate
5. The dissent takes
issue with footnote 3 in
I do not believe that it is
or even
majority opinion.
accurately
ignore
footnote
permissible to
the discoverable facts of
holding
opinion.
states the
embodied in that
It
court,
previous
record in a
case before this
inappropriate
improper
go beyond
and
particularly
give
when to do so is to
a mislead-
opinion
attempt
four
corners
to add
ing
prior
coloration to that
decision. See Hud-
opinion.
facts not embodied in that
(1985)
Ind.App.,
v.
2d Dist.
son
Hudson
484
(procedural posture
prior
N.E.2d
case
unlikely
1. I think it
because the title of the
record);
authority
by
ascertained
review of
hosрital,
Joseph
Hospital, clearly
St.
(1967)
Maryland
Giles v.
386 U.S.
87 S.Ct.
connotes a
institution.
I would further
793, 797, 812,
(U.S. Supreme
“Judicial intervention is limited to an as
ties on
sides.
both
to me
seems
sessment of whether the
em
carrying out of these responsibilities and
ployed by
fair,
are
the stan
the exercise of
privileges
these
must be
reasonable,
dards set
subject to some
There
overview.
must be
they
and
have
applied
been
arbi
some
discriminatory,
forum which
trarily
capriciously.
Kiracofe
trary
аdministrative deci-
Reid Memorial
Ind.
sions
be reviewed. A
whose
App., 461 N.E.2d
Yarnell
Sis
professional reputation has been unjustly
Services,
ters
Francis
St.
Health
maliciously threatened,
damaged, or de-
gov
A
N.E.2d 369.
stroyed, should have some access for re-
erning body
power
has the
to make a
dress in that
government
branch of
best
reappointment
final
on the
disputes.
suited for review of such
privileges
to staff
is not
bоund
the recommendation
The constitutional
process underpin-
Yarnell,
supra.
board.
ac nings
tion
an administrative
agency
arbi
not be so absolute as one
conclude
trary
disregard
if
capricious made in
reading
from a
of Warren v. Indiana Tele-
facts and circumstances
phone
Co.
217 Ind.
without
basis which would 399,
its progeny.
City
Crown
*5
of
lead a reasonable
to the same
Ind.,
(1986)
Point v. Knesek
499 N.E.2d
conclusiоn.”
As did in Kiracofe, Ratliff I fail to apparent from the record that at the level, discern valid basis for Pepple distinction be- administrative Dr. was afford- “private” hospitals tween “public” respect hos- hearing ed notice and a with рitals (Park- with reference to the of his privileges. due restriction protections physicians. Hospital By- to be afforded staff view Memorial Medical Staff Annot., (1971). Laws, Revision, See p. pages 37 A.L.R.3d 661-63 72 1980 Record at inclusive). The public-private distinction appropri- has been 90-94 court trial greatly blurred, if obliterated, by ately determined that Dr. received 472 process protections though procedural
all af- ness matter even it has other as- By-Laws. pects public the Medical Staff concern policy forded as well which rights, though and individual and even fact, Dr. was entitled Given sought through judicial restoration is rath- those administrative to have proceedings. er than internal administrative fair, conducted in full and faith “be impartial body.” City Consistent with this view is the and before concur- Judge 2d interlocutory v. Antrobus Dist. Ind. rence of Garrard Marion 325, 329, App., appeal preceded appeal. 448 N.E.2d trans. denied. In (1983) 3d Pepple, also Hunt v. Shettle Dist. Parkview Memorial 1045; Ind.App., City Ind.App., 3d Dist. denied, Page rel. 4th he Anderson v. State ex trans. observed that the question N.E.2d admissibility Dist. Biddle v. is distinct from (N.D.Ind.1984) Wayne question City pro- Fort whether information is F.Supp. (hearing privilege at which administrative tected rubber-stamped City’s so, merely provisions doing find of the statute. board howеver, ings process). not afford due did also observed that Dr. judidial review, in this has a review, Assuming ques- some sort of and that access to and use of evidence posed tion next concerns access informa- might come into conflict with the statute. com- tion which was before He said: interpretation task mittee. Our involves juncture need not consider at this “We (Burns Ed.Repl.1986) I.C. 34-4-12.6-4 Code specific bit provides as follows: necessary review which professional provider, “A health care arguably is entitled is in conflict govern- appears the statute ing professional board accord. Motions in limine and the orders organization may health care use infor- adjudica- entered thereon not final by peer mation obtained review commit- admissibility.” tions 483 N.E.2d at legitimate pur- tees internal business 470-471. poses, including their defense.” own *6 position aggriev- The in untenable reject position would taken placed ed is demonstrated Hospital use of the information is 34-4-12.6-l(f) (Burns Ed.Repl. by I.C. Code restricted to Dr. at the “defense” 1986) provides: Although Pep- administrative level. Dr. “ good ‘In faith’ means an act taken ple’s legal position present in the is lawsuit malice without after a reasonable effort nature, not in the usual sense defensivе in the matter and in to obtain facts of plaintiff in that he is the and bears the the reasonable belief that the action tak- proof, burden of it is nevertheless defen- en is warranted the facts known. In sive the context of the chapter applies, all actions which privilege provisions He the statute. presumed; faith shall and malice be attempting and is still to defend the required proven by shall be be privileges period staff accorded him over aggrieved.” years. Hospital See Memorial for McHenry (7th Cir.1981), County v. Shadur meaning- If the staff is to have 664 F.2d v. Memo- Parkview review, Schafer he must afforded ful be Hospital, (N.D.Ind.1984) rial 593 some vehicle to demonstrate that the ulti- F.Supp. 61.. mate administrative decision was my do so
My view Hospital’s view is not altered only by position concerning access to and use evidencе which peer the use of committee, if before the committee evidence for “internal business was materially purposes.” prompted It seems to me that restoration that evidence surgery privileges as to the ultimate decision. To be between tributed sure, conditions doctor is an internal busi- restraints and imposed upon use. But if were to access and Even col- my arbitrarily de- totally leagues concerning not be nondiscoverability it should in- such re- The nature and basis for admissibility nied. evidence before the might vary with the and conditions straints I could not vote to af- Parkview circumstances. See summary judgment. firm the That some Schafer Inc., supra, relevant evidence is not Dr. available to (depositions copies F.Supp. 61 and redacted does mean that he cannot obtain produced minutes but committee ordered some relief from a court. It is possible order con- protective to a possible some of the evidence in this cerning admissibility.) privileged. matter is not confidential or possible is that such non-privileged also competing policy in- The considerations disclose ca- would arbitrariness or are set forth Memorial volved priciousness. am not convinced that Shаdur, McHenry County v. for Hospital carried its Parkview burden an Illinois F.2d which dealt with demonstrate that there was no is- similar to that statute here involved. material sue as to a fact and that it was recognized validity Shadur judgment upon entitled the merits as at the necessity confidentiality, but matter of law. recognized time for full and same need disclosure truthful when one’s summary judgment I would reverse the profession practice jeopardized: his for further proceedings. and remand recognize hospital disciplinary pro- “To ceedings privileged, regardless sought,
purpose for which disclosure committees, grant in effect such participants members and absolute
their prosecution
immunity from for all state-
ments made and actions taken proceedings.” context 664 F.2d INDIANA STREAM POLLUTION at BOARD, Appellant CONTROL reviewing court must and bal- assess (Plaintiff Below), policy for confiden- ance considerations tiality prejudice against plaintiff if the is not acces- information LANDFILL, TIPPECANOE SANITARY (Defendant balancing articu- concept INC., Below). sible. Appellee in the lated case: Schafer No. 86A03-8608-CV-245. course, “This an anti- is neither of Appeals malpractice ac- trust suit a medical *7 Third District. Nonetheless, clear, tion. as all courts have reviewed Aug. 10, 1987. recognize, statutes that a balance must Rehearing 15, 1987. Denied Oct. competing struck between the inter- plaintiffs disclosure ests needs for confiden- protect
and defendant’s need to
tiality.” F.Supp. at 64. foregoing reasons, per-
For I would determi-
mit review of the
nation assure that due was ac-
corded and that the is not arbi-
trary I would further af- plaintiff
ford the evidence or access to as the court in its
information
discretion direct.