Opinion
No. 1:99cv74-T
March 13, 2000
ORDER
THIS MATTER is before the court upon plaintiffs' oral motion for continuance. A hearing on defendant hospital's Motion for Summary Judgment was calendared for February 10, 2000. At the time set for that hearing, and without prior written motion or notice, counsel for plaintiffs moved to continue the hearing and contended for the first time that the hospital had failed to produce materials in discovery which were necessary to the formation of an adequate response to the Motion for Summary Judgment. In an abundance of caution, the court determined that plaintiffs' motion was one made under Rule 56(f), Federal Rules of Civil Procedure, which provides, as follows:
Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.
The court agrees with defendant hospital that plaintiffs allowed their time to pass when they failed to move to compel within the time required by the Pretrial Order. While counsel for plaintiffs does not reside in this district, he must understand that this court has carefully constructed a discovery plan and provided for an in-person initial pretrial conference to avoid exactly what has occurred here — counsel being unprepared to move the case forward.
With that said, the court will consider the additional materials submitted for in camera inspection after the February 10, 2000, hearing. Foremost are the materials that defendant hospital contends are not subject to disclosure under Rule 26, Federal Rules of Civil Procedure, by virtue of a privilege created under North Carolina's "Hospital Licensure Act." In parts relevant to this action, Chapter 131E-95(b) provides, as follows:
The proceedings of a medical review committee, the records and materials it produces and the materials it considers shall be confidential and not considered public records within the meaning of G.S. 132-1, "'Public records' defined," and shall not be subject to discovery or introduction into evidence in any civil action against a hospital or a provider of professional health services which results from matters which are the subject of evaluation and review by the committee. No person who was in attendance at a meeting of the committee shall be required to testify in any civil action as to any evidence or other matters produced or presented during the proceedings of the committee or as to any findings, recommendations, evaluations, opinions, or other actions of the committee or its members. However, information, documents, or records otherwise available are not immune from discovery or use in a civil action merely because they were presented during proceedings of the committee. A member of the committee or a person who testifies before the committee may testify in a civil action but cannot be asked about his testimony before the committee or any opinions formed as a result of the committee hearings.
The court concludes from a close review of the statute, arguments, and reported North Carolina case law that the intent of the Legislature was to encourage quality, professional health care in hospitals licensed by the State of North Carolina. To that end, the Legislature created a privilege that protects all aspects of the "peer review process" in state-licensed hospitals, thereby encouraging frank and objective inquiry into the performance of physicians who exercise privileges to practice at those hospitals. Defendant hospital has properly asserted its privilege, and this federal court, sitting in diversity, will give full faith and credit to that privilege, as construed by North Carolina law.
The peer-review privilege protects from disclosure any record of the proceedings of a peer-review committee, records and materials that the committee produces as work product, and certain materials the committee considers. See Shelton v. Morehead Mem. Hosp., 318 N.C. 76 (1986). Just as the attorney-client privilege has been found to not extend to preliminary investigations conducted by attorneys for insurance companies, North Carolina case law reveals that hospitals will not be able to use the peer-review committee as a "privilege" clearinghouse for protecting otherwise discoverable information. Virmani v. Presbyterian Health Servs., 127 N.C. App. 629 (1997). The privilege does not extend to the gathering of raw data by a hospital's "risk-management team," but does protect briefing done by the risk-management team for the exclusive use of the peer-review committee and the actual deliberations, thought processes, opinions, decisions, and work product of the peer-review committee. This is not unlike judicial or legislative immunity, or executive privilege, all of which pivot on the greater societal good in frank, candid, and confidential deliberations.
In this case, defendant hospital has properly asserted the privilege and tendered to the court a well-organized privilege log and exhibits. While the word "confidential" appears as a header to just about every document, the court makes the following findings:
(1) "Occurrence reports" are not subject to the Section 131E-95 privilege. They appear to be gathered in the ordinary course of a hospital's business as a way of fielding complaints from patients, their families, and staff members. While they certainly could be used for peer review, they appear to also be gathered for true "risk management," which is corporate liability. Exhibits 16A through 16MM are not privileged and shall be disclosed;
(2) "Summaries of occurrence reports" are not, per se, subject to the Section 131E-95 privilege. They do, however, deserve close scrutiny under the privilege. The court finds that the summaries tendered are not unlike a brief that would be prepared by staff for a judge, summarizing the written arguments of counsel. While the judicial brief would not necessarily reveal the deliberative process of that judge, its public production would unnecessarily chill a frank judicial process ultimately designed to produce a greater public good. The judicial scenario is almost identical to the scenario of a risk-management team preparing summaries of occurrence reports. The summaries are concise distillations of handwritten occurrence reports that relay in one or two sentences the essence of the consumer complaint. While such summaries would, without doubt, be helpful to plaintiffs, they are privileged work product of the peer-review committee and are not otherwise subject to disclosure under Rule 26, inasmuch as the facts are available in the form of non-privileged occurrence reports. Exhibit 15A is privileged and need not be disclosed.
(3) Reports, whether oral or written, that result from peer review, whether done by a committee, an individual physician in the hospital, or an outside consulting physician, are privileged, inasmuch as those reports contain frank and candid evaluations designed to improve the quality of care rendered at the hospital. Exhibit 15B is privileged.
(4) Materials considered by the credentialing committee are, like state personnel records, confidential and not subject to public disclosure. N.C. Gen. Stat. 131E-97.2. They are, however, not privileged and are subject to disclosure under Rule 26 where they are relevant to the claims asserted in a civil action. In this case, such information is relevant to plaintiffs' claim that the hospital improperly extended privileges to Dr. Welliver, even though such materials mainly show that he was considered to be a competent and well-liked physician in hospitals where her had previously worked. Exhibits 19A through 19I will be disclosed as non-privileged personnel records in part (in a manner consistent with the paragraph below), but shall be produced subject to a protective order limiting use and disclosure of such records to this particular case. Defendant hospital shall not be required to produce any materials the credentialing committee generated in concluding to appoint or reappoint Dr. Welliver, inasmuch as they would reveal a frank and candid exploration of Dr. Welliver's competence in the nature of peer review.
Finally, the court has reviewed the deposition of Dr. Frederick Martin, M.D., and the objections made during that deposition concerning privileged material. The court notes that counsel did not call the court during the deposition and that this review is being conducted after summary judgment has been fully briefed and only weeks before trial. The court will not rule on each of the 19 objections listed, inasmuch as they appear to be redundant.
The court will not order the further deposition of Dr. Martin, inasmuch as the necessary supplementation can be accomplished through production of documents. While he varied from such interpretation, counsel for plaintiffs expressed in response to one such objection what the court finds to be the relevant law concerning the relevant privilege:
My interpretation is, however that documents that are presented to the board as required by the bylaws, that information is discoverable. What happens once the committee gathers all that information and discusses whether or not somebody merits appointment is privileged.
Martin Depo., at 23. This statement appears to portray correctly the current state of the privilege. To that end, defendant hospital shall produce all information it gathered concerning the appointment and reappointment of Dr. Welliver, if it has not done so already. Specifically excluded from such production are the following:
(1) materials produced by the risk-management team specifically for consideration by the peer-review committee (as discussed above);
(2) any materials generated by the peer-review committee or the credentialing committee; and
(3) any materials generated by anyone who conducted an outside peer review at the request of the peer-review or credentialing committees.
Defendant hospital shall produce any letters of recommendation, either favorable or unfavorable (unless such letters were generated as part of the hospital's specific peer-review process or another recommending hospital's peer-review process). Having considered plaintiff's motion and reviewed the pleadings, the court enters the following Order.
ORDER
IT IS, THEREFORE, ORDERED that
(1) plaintiffs' Motion for Continuance is GRANTED;
(2) defendant hospital shall produce all materials specified above not later than March 17, 2000, subject to the following Protective Order: any materials produced by defendant hospital shall be used only in this litigation and shall be returned to the hospital at the conclusion of this matter;
(3) plaintiffs shall file a supplemental response to defendant hospital's Motion for Summary Judgment, not exceeding five pages, on or before March 24, 2000;
(4) defendant hospital shall file a supplemental reply, not exceeding five pages, on or before March 31, 2000; and
(5) unless otherwise ordered, no further hearing on defendant hospital's Motion for Summary Judgment will be conducted, and this matter will remain on track for trial in accordance with the district court's Order.