SOUTHWEST COMMUNITY HEALTH SERVICES, Petitioner, v. Honorable W.C. “Woody” SMITH, District Judge, Second Judicial District, and Honorable Ross Sanchez, District Judge, Second Judicial District, Div. VIII, Respondents.
No. 16543
Supreme Court of New Mexico
May 10, 1988
Rehearing Denied June 7, 1988
755 P.2d 40
Miller, Stratvert, Torgerson & Schlenker, P.A., Alan C. Torgerson, Alice Tomlinson Lorenz, Steven J. Vogel, Steven Schonberg, Bruce P. Moore, Albuquerque, for real parties in interest.
William H. Carpenter, Albuquerque, for amicus curiae NM Trial Lawyers Ass‘n.
OPINION
RANSOM, Justice.
The real parties in interest, Steve and Tammy Greeson, brought separate medical malpractice actions against petitioner Southwest Community Health Services (Southwest) and Dr. Robert Gathings. The cases were consolidated for trial. In motions to compel answers to interrogatories and to compel production of documents, the Greesons sought the credentialing file which Southwest maintained on Dr. Gathings. In response to the motions, Southwest argued that the information requested was confidential under
The court conducted an in camera inspection of all documents allegedly immune from discovery under Section 41-9-5, which provides:
All data and information acquired by a review organization in the exercise of its duties and functions shall be held in confidence and shall not be disclosed to any one except to the extent necessary to carry out one or more of the purposes of the review organization or in a judicial appeal from the action of a review organization. No person described in
Section 4[41-9-4 NMSA 1978] of the Review Organization Immunity Act shall disclose what transpired at a meeting of a review organization except to the extent necessary to carry out one or more of the purposes of a review organization or in a judicial appeal from the action of a review organization. Information, documents or records otherwise available from original sources shall not be immune from discovery or use in any civil action merely because they were presented during proceedings of a review organization, nor shall any person who testified before a review organization or who is a member of a review organization be prevented from testifying as to matters within his knowledge, but a witness cannot be asked about opinions formed by him as a result of the review organization‘s hearings.
Following in camera inspection, the court ordered production of the requested documents either because the statute was not applicable to the credentialing file or because the rules of discovery or evidence overrode the statute.
Southwest petitioned this Court for an alternative writ of prohibition or superintending control. Following a hearing, this Court issued a preliminary writ and instructed the parties to address the constitutionality of
Consolidated with this case for consideration was Raney v. Onuska, S.Ct. No. 16,540, in which the trial court, following in camera inspection, had denied discovery of hospital records constituting minutes of meetings pertaining to the surgery which was the subject of the suit and relevant letters, correspondence, and other documents evincing staff privilege reductions pertaining to the defendant doctor. In Raney, the court had found that the statute applied to the documents and had ordered that they not be disclosed. Pending resolution of these cases, the Raney case was settled and the writ issued in that case has been quashed. Now, in Southwest, we first could address whether the court was correct in finding that the statute is not applicable to the credentials file. However, the record in that regard is not satis-
In Ammerman v. Hubbard Broadcasting, Inc., 89 N.M. 307, 551 P.2d 1354 (1976), appeal on other grounds after remand, 91 N.M. 250, 572 P.2d 1258 (Ct. App.), cert. denied, 91 N.M. 249, 572 P.2d 1257 (1977), cert. denied, 436 U.S. 906, 98 S.Ct. 2237, 56 L.Ed.2d 404 (1978), this Court held legislation creating a testimonial privilege in a judicial proceeding unconstitutional. The statute constituted an evidentiary rule, traditionally considered to be “adjective law” or “procedural law,” the promulgation of which is a power vested in this Court by virtue of its superintending control over all inferior courts under Article VI, Section 3, of the New Mexico Constitution. Article III, Section 1 of the Constitution further provides:
The powers of the government of this state are divided into three distinct departments, the legislative, executive and judicial, and no person or collection of persons charged with the exercise of powers properly belonging to one of these departments, shall exercise any powers properly belonging to either of the others, except as in this constitution otherwise expressly directed or permitted.
Pleading, practice and procedure are of the essence of judicial power. Functions of the judiciary which are essential to its constitutional powers cannot be exercised by another branch of the government in conflict with the judicial branch. While, historically, the judiciary has shared procedural rule-making with the legislature, any conflict between court rules and statutes that relate to procedure are today resolved by this Court in favor of the rules. Maestas v. Allen, 97 N.M. 230, 231, 638 P.2d 1075, 1076 (1982); Salazare v. St. Vincent Hosp., 96 N.M. 409, 412, 631 P.2d 315, 318 (Ct.App.), aff‘d in part, rev‘d in part, 95 N.M. 147, 619 P.2d 823 (1980). Therefore, at issue in this case is the effect of any conflict in
Unlike the statute in Ammerman, Section 41-9-5 cannot be said to be “nothing more or less than [an] attempt to create a rule of evidence, comparable to the other privileges * * * ” Ammerman, 89 N.M. at 309, 551 P.2d at 1356.
Although promotion of the public welfare is its primary objective and confidentiality of peer review has application far beyond the limited arena of civil litigation,
We do not believe, however, that the statute creates an evidentiary privilege, although statutes similar to
A privilege inures to the benefit of a specific interpersonal relationship such as attorney-client (
Because
Except as otherwise required by constitution and except as provided in these rules or in other rules adopted by the supreme court, no person has a privilege to:
A. refuse to be a witness; or
B. refuse to disclose any matter; or
C. refuse to produce any object or writing; or
D. prevent another from being a witness or disclosing any matter or producing any object or writing.
Under Ammerman and its progeny, if the statute had created an evidentiary privilege it would be invalid.
When there comes before this Court a conflict between the functions of two branches of government, the Court must resolve that conflict in a manner reasonably assuring that powers exercised by one branch do not conflict with the essence of power exercised by the other branch of government. See United States v. Nixon, 418 U.S. 683, 707, 94 S.Ct. 3090, 3107, 41 L.Ed.2d 1039 (1974). We are mindful that the essential functions of both the legislative and judicial branches must remain inviolate. It is certain that this Court should not invalidate substantive policy choices made by the legislature under the constitutional exercise of its police powers; and, as discussed above, our decisions leave no doubt that it is the function of this Court to promulgate procedural rules and that the legislature has no authority to enact evidentiary rules which conflict with the rules of this Court.
In United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974), the United States Supreme Court grappled with an analogous problem. At issue was the President‘s invocation of executive privilege to shield certain high-level communications from judicial process in a criminal trial. The Supreme Court recognized that the privilege was “fundamental to the operation of Government and inextricably rooted in the separation of powers under the Constitution.” 418 U.S. at 708, 94 S.Ct. at 3107.
But this presumptive privilege must be considered in light of our historic commitment to the rule of law. * * * The need to develop all relevant facts in the adversary system is both fundamental and comprehensive. * * * [E]xceptions to the demand for every man‘s evidence are not lightly created nor expansively construed, for they are in derogation of the search for the truth. 418 U.S. at 708-10, 94 S.Ct. at 3107-3109.
In balancing the President‘s assertion of a constitutional privilege of confidentiality against the constitutional need for relevant evidence in a criminal trial, the Supreme
While the legislative decision to prohibit notoriety of medical peer review proceedings is a constitutional exercise of the essential legislative function to promote the health and welfare of New Mexico‘s citizens, the Court cannot ignore an overbroad implementation of the confidentiality provision which would impinge upon the right of litigants to have their disputes decided on relevant and material evidence. It is not a matter of the statute being unconstitutional but rather a recognition, when litigation is at issue, that conflicting constitutional powers by two separate and independent branches of government are being exercised. Which branch must yield to the other depends upon the circumstances of each individual case.
An exercise of judicial discretion is called upon in the balancing of those interests. It is well settled that it is the unique responsibility of the courts, not the executive or legislature, to resolve a conflict between two competing constitutional interests. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60 (1803) (“It is emphatically the province and the duty of the judicial department to say what the law is.“); Baker v. Carr, 369 U.S. 186, 211, 82 S.Ct. 691, 706, 7 L.Ed.2d 663 (1962) (“Deciding whether a matter has in any measure been committed by the Constitution to another branch of government, or whether the action of that branch exceeds whatever authority has been committed * * * is a responsibility of this Court as ultimate interpreter of the Constitution.“); United States v. Nixon, 418 U.S. at 703-05, 94 S.Ct. at 3105-3106. The responsibility of the courts to balance conflicting constitutional interests was recognized by this Court in State ex rel. Attorney General v. First Judicial District of New Mexico, 96 N.M. 254, 629 P.2d 330 (1981), in which it was held that when an executive privilege of constitutional origin comes into confrontation with the constitutional duty of the judiciary to do justice in matters brought before it, a balancing of the protected interests must be undertaken by the courts. Id. at 258, 629 P.2d at 334.
Consequently, we hold that all data and information acquired by a review organization in the exercise of its duties and functions, and opinions formed as a result of the review organization‘s hearings, shall be governed by
We further hold that, if the information is ruled to be confidential, the party seeking access must then satisfy the trial
Some courts have seen the resolution of the conflict inherent in peer review confidentiality as being a political or public policy question to be resolved by the legislature. See, e.g., Humana Hosp. Desert Valley v. Superior Court of Ariz. in and for the County of Maricopa, 154 Ariz. 396, 742 P.2d 1382 (Ct.App.1987); Holly v. Auld, 450 So.2d 217 (Fla.1984); Shelton v. Morehead Memorial Hosp., 318 N.C. 76, 347 S.E.2d 824 (1986). For this Court to take that tack, however, would require us to deny the clear holding of Ammerman that the promulgation of objective or procedural law ultimately is the constitutional prerogative of the judiciary. We hold that the legislature has no power to decide that it is in the public‘s interest to diminish that power under any circumstances.
Finally, we find that the application of this statute as construed today by this Court to the case at bar does no violence to Marquez v. Wylie, 78 N.M. 544, 434 P.2d 69 (1967), which held that rules adopted by this Court are not effective to change the procedure in any pending case. Id. at 546, 434 P.2d at 71. This is not a case where the rules of the game were changed without notification to the parties.
We quash the alternative writ previously issued and remand with instructions that the court determines whether Section 41-9-5 is applicable to the credentialing file and, if it is, to proceed in a manner consistent with this opinion.
IT IS SO ORDERED.
SOSA, Senior Justice, and WALTERS, J., concur.
SCARBOROUGH, C.J., and STOWERS, J., dissent.
SCARBOROUGH, Chief Justice, dissenting.
I respectfully dissent. I would make the alternative writ permanent, uphold the constitutionality of
I agree with the majority that historically the judiciary has shared procedural rule-making authority under the constitution with the legislature, therefore, I would uphold the confidentiality provisions of
In St. Vincent Hospital v. Salazar, 95 N.M. 147, 619 P.2d 823 (1980), we upheld a privilege similar to that of
The privilege created by
The majority discusses the burden of proof required when a privilege is asserted under
The majority also discusses circumstances where full disclosure of all data and information acquired by a peer review organization is contemplated. Such a result would render meaningless the entire statutory scheme set forth in
For these reasons I dissent.
STOWERS, Justice, dissenting.
This case is before this court on whether to grant a permanent writ of prohibition. At the preliminary arguments, we requested that the parties brief the constitutionality of Section 41-9-5 of the Review Organization Immunity Act (ROIA), NMSA 1978, Sections 41-9-1 through -7 (Repl.
I do not agree, however, with the majority‘s narrow construction of the peer review privilege in Section 41-9-5 limiting that privilege to data and information “generated exclusively” for peer review, and as a result of peer review deliberations. Such a construction, I believe, is contrary to the language and purposes of ROIA.
ROIA represents an attempt to improve the quality of health care services rendered by health care providers in New Mexico. To achieve this purpose, peer review is vital. The statute endeavors to make the peer review process work; hence, the reason for the provision of confidentiality. Meaningful peer review cannot be possible without this guarantee of confidentiality for the information acquired and opinions elicited from the medical community regarding the competence of other health care providers. Without a statutory peer review privilege or with substantial restrictions imposed on the privilege, persons involved in health care would be undoubtedly reluctant to engage in frank and candid evaluations of their colleagues. The result could be a concomitant deterioration in the quality of health care available in this state.
A discovery privilege will impinge inevitably upon the rights of some civil litigants to discovery of information which might be helpful to their causes of action. This, however, is not unusual in the field of law. Thus, although we recognize that discovery procedures are to be liberally construed, they are not without certain limitations. For example, the following relationships: attorney-client,
The language in
Moreover, the majority‘s inclusion of a second level of review effectively destroys any concept of confidentiality in the statute. The majority holds that even after the trial court has initially concluded that certain evidence is confidential, the court can still compel production of this privileged evidence if the success or failure of a litigant‘s cause of action would likely turn on that evidence. This gives a party a second
For the above stated reasons, I find that