Jаnet SALAZARE, as Personal Representative of the Estate of her Fetus, Plaintiff-Appellant, v. ST. VINCENT HOSPITAL, Eric C. Wolf, Kenneth Harrold, M.D. and Northern New Mexico Emergency Medical Services, P.C., Defendants-Appellees.
No. 4433.
Court of Appeals of New Mexico.
July 1, 1980.
631 P.2d 315
Daniel Shapiro, Ortega & Snead, P. A., Albuquerque, for plaintiff-appellant.
Thomas A. Simons, IV, Sommer, Lawler, Scheuer & Simone, P. A., Santa Fe, for defendants-appellees Kenneth Harrold, M. D., and Northern New Mexico Emergency Medical Services, P. C.
W. Robert Lasater, Jr., Rodey, Dickason, Sloan, Akin & Robb, P. A., Albuquerque, for amicus curiae.
OPINION
WALTERS, Judge.
This matter is before us on аn interlocutory appeal from the trial court‘s quashing of plaintiff‘s notice to take the deposition of a panel member of the Medical Review Commission.
Plaintiff filed a malpractice suit on behalf of herself and her stillborn fetus after presenting the matter to the Commission in accordance with the Medical Malpractice Act,
It aрpears from the trial court‘s order that at the time plaintiff deposed defendant Wolf (an emergency room nurse at St. Vincent‘s Hospital when the alleged malpractice occurred), Wolf was unable to recall much of the evidence he gave at the hearing before the panel. Plaintiff thereupon sought to depose a member of the panel who recalled Wolf‘s testimony. In ruling on St. Vincent‘s and Wolf‘s motiоn to quash the notice of deposition, the trial court observed that the witness‘s testimony probably would provide “an admission [made by Wolf at the panel hearing] which may almost prima facie go to meet [plaintiff‘s] burden of proof in the case.” Nevertheless, the motion to quash was granted. The operative portions of the trial court‘s order read:
[The court] FINDS AND CONCLUDES as follows:
1. The legislative intent of the Medical Malpractice Act,
Sections 41-5-1 et seq. (NMSA 1978) was to create a privilege for members of the Medical Review Commission that would generally exempt them from discovery procedures during the pendency of a lawsuit.2. This legislatively enacted privilege, referred to in paragraph one (1) above, is constitutionally valid.
3. Plaintiff has properly noticed opposing counsel and properly subpoenaed William Haire, all for the taking of Mr. Haire‘s deposition. Mr. Haire was a member of the Medical Review Commission that heаrd Plaintiff‘s claims against Defendants, and he heard the testimony of ERIC WOLF, one of the defendants.
4. Plaintiff‘s counsel represented to the Court that Defendant WOLF can no longer recall some of the events to which he testified at the Medical Review Commission Hearing. Plaintiff‘s counsel also represented that Mr. Haire can recall Mr. WOLF‘S testimony with respect to such areas, that, Mr. WOLF‘S testimony would be an admission that would tend to establish liability with respect to negligence, and that Mr. Haire is willing to be deposed subject to Subpoena.
5. Good cause does not exist for the taking of Mr. Haire‘s deposition.
The court further FINDS that this Order involves controlling questions of law as to which there are substantial grounds for difference of opinion and that an immediate appeal from such Order may materially advance the ultimate termination of the litigation.
We are asked prinсipally to determine the correctness of the trial court‘s interpretation of the Act as it applies to the facts of this case.
We first dispose of another issue raised by appellees. The suggestion that the interlocutory appeal should be dismissed (1) because the order was unappealable and, (2) alternatively, because the issue with which this appeal is concerned—that is, whether the Malprаctice Act prevents the taking of
We note first that the pleadings and the record of the trial court‘s ruling from the bench, conclusively disclose that both sides acknowledged the underlying proceedings before the Commission as the basis for plaintiff‘s subpoenaing the witness for deposition and for the defendants’ resistance to the proposed discovery. A later order of the trial court recites that it accepted as true plaintiff‘s representations regarding the case history preceding the notice for Haire‘s deposition. The fact of that acceptance is a sufficient record to determine the propriety of the ruling as it was influenced by the Malpractice Act.
Secondly, if the denial of discovery were not occasioned by the trial court‘s conclusion of a privilege conferred by the Act, then the grounds recited in defendants’ motion to quash were false, and defendants were without justification to oppose the taking of the witness‘s deposition. See
The argument of non-appealability of the order is equally facetious. The order complied with the requirements of
I.
The provisions of the Medical Malpractice Act upon which appellees rely are the following:
41-5-20 . Panel deliberations and decision.A. The deliberations of the panel shall bе and remain confidential. . . .
* * * * * *
D. The report of the medical review panel shall not be admissible as evidence in any action subsequently brought in a court of law. . . .
In their motion to quash, appellees cited and attached to their motion a copy of the rules of the original plan adopted voluntarily in 1963 by the Medical Society, Board of Bar Commissioners and the State Bar, as well as a copy of the revised rules adopted in 1971. They particularly pointed to Pаragraph III (3) of the original plan regarding the requirement that the application for consideration by the panel include:
By appearing before the Panel, the parties consent that no attempt will be made to use as impeaching evidence in Court any statement made by any person during a hearing before the Panel.
The transcript of the trial court‘s ruling does not suggest that the language of the Commission‘s procedural rules was a factor in its decision to quash. Instead, it considered the Act itself as establishing a veil of confidentiality about the screening process which would be defeated if matters other than the panel‘s report could “be subject . . . to discovery and . . . to evidentiary use.” Its findings and conclusions reflect that interpretation. We are not concerned with the finding that good cause did not exist, since good cause is not necessary to discovery under Rule 26 if the Aсt does not bestow a privilege to panel members.
Plaintiff calls our attention to
The hearing will be informal and no official transcript shall be made. Nothing contained in this paragraph shall preclude the taking of the testimony by the parties at their own expense.
This section and those we have already set forth above express, we think, that the Legislature intended the Commission hearings to be conducted in an atmosphere free of the intimidatiоns that may accompany a court setting, and that the give-and-take of the panel‘s deliberations, after it has heard the presentation of the parties, be as open and uninhibited as are a jury‘s deliberations at the end of a court trial.
But we do not find any portion of the Malpractice Act which grants a privilege to any participant or witness from testifying regarding anything other than the panel‘s deliberations or а report prepared by the panel. Nor can Rule 3 of the revised procedural rules of the Commission be read to apply to this case. Plaintiff was not seeking “impeaching evidence“; her effort to depose panelist Haire was for the purpose of retrieving evidence lost as a result of defendant Wolf‘s lapse of memory. Such evidence is properly discoverable and may be admitted аt trial. See
. . . [U]nder our Constitution the Legislature lacks power to prescribe by statute rules of evidence and procedure[;] this constitutional power is vested exclusively in this court, and statutes purporting to regulate practice and procedure in the courts cannot be binding, [thus] we are able to reach no conclusion other than that the privilege purportedly created . . . is constitutionally invalid and cannot be relied upon or enforced in judicial proceedings.
Defendants urge, however, that
To prevent future misunderstandings which may arise from interpretation of the Commission‘s internal Rules of Procedure, if any are promulgated or the old rules are in use, we hold also that no privilege expressly or impliedly granted by any of its provisions could withstand constitutional attack under the Ammerman rationale.
Wе therefore hold that, on the record before us, it was error for the trial court to quash plaintiff‘s subpoena to depose witness Haire upon grounds that the Medical Malpractice Act creates a privilege for panel members. We hold, further, that in the absence of good cause shown upon motion for protective order (see
II
New Mexico Physicians Mutual Liability Company was granted leave by this court to file an Amicus Curiae brief. They argue that the Malpractice Act is not applicable to this appeal because none of the defendants is a “health care provider” as defined in
Defendant hospital movеd for dismissal of this appeal shortly after plaintiff filed the transcript on the same ground raised now by amicus. The motion was denied because the issue had not been ruled on by the trial court.
We now consider the effect of the affidavit attached to amicus‘s motion, in which the State Superintendent of Insurance stated, in effect, that none of the defendants had established proof of financial responsibility required by the statutе, nor had they paid the surcharge assessed, (see
We agree that if defendants are not health care providers because they have failed to qualify, they fall under the sanctions imposed by
Defendants obtained a ruling from the trial court in reliance upon provisions of the Malpractice Act and certain of the rules under which the medical-legal panel operated. Judicial estoppel will now act to pre-
The prinсiple is the same here, and if defendants lose the protections which were available to them because of the matters raised by the brief of amicus curiae and in defendant St. Vincent‘s earlier motion, thus exposing themselves to greater damages than would be allowed under the Act, plaintiff nevertheless may proceed in a common-law malpractice action against defendants outside the Act, but with the аssistance of an expert witness to be provided through the Medical Review Commission.
Our resolution of this issue in no way dilutes our holding regarding the taking of Haire‘s deposition. The order of the trial court quashing plaintiff‘s subpoena and notice is reversed. The case is remanded for further proceedings consistent with this Opinion.
IT IS SO ORDERED.
LOPEZ, J., concurs.
ANDREWS, J., dissents.
ANDREWS, Judge (dissenting).
I disagree with the majority in this case. This interlocutory appeal presents only one question of law—whether the Medical Malpractice Act [
In my opinion, the Act, when read as a whole [
1. Whether there is substantial еvidence that the acts complained of occurred and that they constitute malpractice; and
2. Whether there is a reasonable medical probability that the patient was injured thereby.
One provision of the Act, alone, creates confusion in what is otherwise a clear and unambiguous law wherein the Medical Review Commission and its members are provided with immunities and privileges.2
Where the “panel has determined that the acts complained of were or reasonаbly might constitute malpractice and that the patient was or may have been injured by the act, the panel, its members, the director and the professional association concerned will cooperate fully with the patient in retaining a physician . . . who will . . . testify on behalf of the patient.”
The policy reasons which support this view are clear. The confidential nature of the proceedings and the protection afforded the panel protects both this process,4 as well as the fairness of any subsequent action. Cf. Simon v. St. Elizabeth Medical Center, 355 N.E.2d 903 (Ohio Com.Pl.1976). (Where the court noted the excessive weight such testimony would have, and the probable intеrference with a fair trial.)
The Medical Malpractice Act was carefully drafted. To disregard the clear legislative intent is to do great injustice to the purpose of the Act. The trial court should be affirmed.