Opinion
The Court apologizes to Counsel and particularly to the parties for the delay in issuing this Opinion. The case was argued during a period of some personal difficulty, and the current work load and some agonizing over one issue, made it difficult to get the Opinion to the front burner.
Argued: September 22, 1999. Plaintiffs' Supplemental Letter Memorandum: October 27, 1999.
Decided: February 23, 2000.
(1) Defendant Beebe Medical Center's Motion for Summary Judgment — MOTION GRANTED CONDITIONALLY ON RESPONDEAT SUPERIOR and MOTION GRANTED CONDITIONALLY ON CREDENTIALING; (2) Defendant Boyd's Motion in Limine to Exclude Evidence Under Rule 404(b) and 403 — MOTION GRANTED .
Charles P. Brandt, Esquire, Brandt Dalton, P.A., 919 Market Street, P.O. Box 2307, Wilmington, DE 19899
Anne L. Naczi, Esquire, Griffin Hackett, P.A., 14 The Circle, P.O. Box 612, Georgetown, DE 19470
Mason E. Turner, Jr., Esquire, Prickett, Jones, Elliott, 1310 King Street, P.O. Box 1328, Wilmington, DE 19899
Dear Counsel:
This is the Court's Letter Opinion and Order on Beebe Medical Center's ("Beebe") Motion for Summary Judgment and/or severance or a ruling permitting Beebe to rely on peer review information. This is also the Court's decision on Defendant Dr. William S. Boyd's ("Boyd") Motion to exclude evidence of a prior arrest, medical malpractice claims, lawsuits, complication/bad result allegations, or disciplinary actions in States other than Delaware. For the reasons stated herein, Beebe's Motion for Summary Judgment is GRANTED CONDITIONALLY on both respondeat superior and the credentialing claims, with a window for Plaintiffs to file a Motion to Amend as to the respondeat superior claim and subject to a required in camera filing by Beebe of its credentialing file. Additionally, Boyd's Motion in Limine is GRANTED.
FACTS
This is a medical malpractice action filed as a result of the alleged negligence of Boyd. Boyd has been licensed to practice medicine in three States including: Ohio (1981), South Carolina (1984), and Delaware (1987). (Boyd Ex. A, Interrogatory 10). The current medical negligence action was filed after Boyd performed laparoscopic surgery on Florence Joyce on or about January 5, 1996. Plaintiffs claim that Boyd failed to recognize postoperative complications and Mrs. Joyce died two days later at the age of 87 as a result of Boyd's negligence.
There have been previous disciplinary investigations into Boyd's practice of medicine. The South Carolina disciplinary committee investigated Boyd because, while Boyd was practicing in South Carolina, a patient of his developed complications during her pregnancy relating to her blood pressure problems. (Boyd Dep. at 6, Pl.'s Ex. A). The complications from high blood pressure resulted in the patient's death and the death of her newborn baby. Id. The South Carolina Board held that Boyd's actions in the care of his patient did not meet the standard of care for obstetrics in that State. Id. After the hearing, Boyd was suspended from the practice of medicine in South Carolina but the suspension was immediately lifted upon payment of an assessment of $1,000. Id. Whatever the precise linguistic form, it appears there was never a period of time when the suspension was in effect. At the time of the disciplinary action, Boyd had already begun to practice medicine in Delaware. Id. at 6-7. Boyd asserts that he became aware of the disciplinary hearings during his transition between South Carolina and Delaware. On November 20, 1989, Boyd put his South Carolina Medical license on inactive status. Id. at 7 ( see also Boyd Ex. C (Letter from the South Carolina Board of Medical Examiners)).
Boyd provides a letter from the South Carolina Board of Medical Examiners, dated May 20, 1999, stating that Boyd's license is inactive and, because the fine was paid within a 30 day period, his license was never suspended. (See Boyd Ex. C).
If Boyd is ever to return to the practice of medicine in South Carolina, he would need to notify the Board ahead of time in order to resume his practice. (Boyd Dep. at 7, Riggs Ex. A).
At some point thereafter, Boyd's license to practice medicine was revoked in Ohio. Boyd asserts informally that he understands his Ohio license was revoked due to the action taken by the Board in South Carolina. (Boyd Dep. at 11, 20, Boyd Ex. D). Boyd alleges that, as soon as he was notified of the disciplinary actions, the Delaware State Board was advised "of those situations." (Boyd Dep. at 9, Boyd Ex. A).
Boyd represented in his response to Question No. 86 of Plaintiffs' interrogatories that he has been the defendant in three medical malpractice cases. (1) King v. Boyd, et al., February 1988, South Carolina, settled out of Court; (2) Greene v. Boyd, et al., August 1, 1994, Delaware, defense verdict; (3) Stockley v. Boyd, et al., 1993, Delaware, case dismissed.
One question in this case is whether disciplinary actions or bad acts from other States can be admitted into evidence. Boyd filed this Motion in Limine under Rules 404(b) and 403, claiming that evidence of disciplinary actions in States other than Delaware, medical malpractice allegations, prior bad acts, or complications unrelated to this action are not admissible. Boyd also asserts that any allegations of a "peeping tom" arrest have nothing to do with Boyd's practice of medicine or the standard of care in a laparoscopic procedure and should be excluded under Rules 608 and 609 because no conviction resulted from the arrest and the crime was not one of dishonesty. This Judge has previously said that "[t]his case does not appear facially to be one where prior acts could be admitted in order to show the negligent conduct alleged here." Riggs National Bank et al. v. Willis S. Boyd, M.D., et al., C.A. No. 96C-05-122, Quillen, J. (Mar. 16, 1998).
Beebe has filed a Motion entitled "Motion for Summary Judgment, Severance and/or Permission to Use Peer Review Material as Evidence." Beebe requests Summary Judgment because, it alleges, after three years of discovery, Plaintiffs have adduced no proof of negligence on the part of Beebe. Beebe claims that Plaintiffs have identified no witness familiar with Boyd's credentialing process that will assert that Boyd's credentialing was anything other than normal. In the alternative, Beebe requests that the Court grant a separate trial from Boyd under Rule 42(b) because it feels that the allegations against Boyd would be inflammatory. If neither of these alternatives is granted, Beebe requests the Court sign an order permitting Beebe to have credentialing information concerning Boyd reviewed by an expert witness. Beebe then wants to present the credentialing evidence and expert opinion at trial.
This Court has previously stated that "the Court [is not] going to grant at this time Beebe's Motion to Sever. It seems to me appropriate to get all the legitimate discovery finalized, if for no other purpose but to see if there is a prima facie case against Beebe." Riggs National Bank et al. v. Willis S. Boyd, M.D. et al., Del. Super., C.A. No. 96C-05-122, Quillen, J. (Mar. 16, 1998). Severances in civil cases are not lightly granted in Delaware. It also occurs to this Judge that a severance in a negligence case, and particularly a partial severance of multiple claims involving a single Defendant in a two-Defendant case, might complicate any necessary allocation of damages. But substantive issues have to be faced.
Riggs responds to Beebe's allegations by saying its claims are not based solely on the credentialing issue. Riggs states that Plaintiffs have two experts prepared to testify that the Hospital staff was negligent in its failure to notify Boyd of Mrs. Joyce's symptoms and also in its failure to notify another gynecologist upon Mrs. Joyce's return to the Hospital on January 5, 1996. ( See Plaintiffs' Response to Beebe's Expert Interrogatories, Riggs Ex. A). Riggs also denies that there is not a prima facie case regarding the supervision and credentialing issue. In citing the same two experts (Dr. John M. Levinson and Dr. Marshall Klavan), Riggs states that the Hospital negligently permitted Boyd to obtain and retain privileges without adequate training and supervision. (See Plaintiffs' Response to Beebe's Expert Interrogatories, Riggs Ex. A). Riggs also opposes the Motion for Severance because Riggs feels it would create piecemeal litigation.
Beebe also cites the affidavit of Dr. Levinson, dated September 9, 1999, stating that Beebe had inadequate procedures to ensure prompt reporting of any licensure or disciplinary action. (Aff. of Dr. John Levinson, Riggs Ex. H).
STANDARD OF REVIEW
When considering a Motion for Summary Judgment, the Court's function is to examine the record to determine whether genuine issues of material fact exist. Oliver B. Cannon Sons, Inc. v. Dorr-Oliver, Inc., Del. Super., 312 A.2d 322, 325 (1973). If, after viewing the record in a light most favorable to the non-moving party, the Court finds that there are no genuine issues of material fact, Summary Judgment will be appropriate. Id. Summary Judgment will not be granted if the record indicates that a material fact is in dispute or if it seems desirable to inquire more thoroughly into the facts in order to clarify the application of law to the circumstances. Ebersole v. Lowengrub, Del. Supr., 180 A.2d 467 (1962).
BEEBE'S MOTION FOR SUMMARY JUDGMENT
Beebe has filed its Motion for Summary Judgment stating that the Plaintiffs' claims against it are based solely on the credentialing issue. Beebe claims that Boyd's license was never suspended in South Carolina, and that Boyd's medical license in Ohio was canceled without notice to him.
Riggs denies that its claims are based solely on the credentialing issues. To support that contention, Riggs identifies the testimony of several experts who will testify to "Beebe's nursing staff's negligence." (Riggs Response to Beebe's Motion at 1). Parenthetically, it argues that from the day Mrs. Joyce died, Beebe was on notice that the negligence of the nursing staff contributed to her death.
Superior Court Civil Rule 9 states the Delaware Rule as to pleading special matters. All averments of fraud, negligence or mistake, the circumstances constituting fraud, negligence or mistake shall be stated with particularity. Super. Ct. Civ. R. 9(b). The purpose of Rule 9(b) is fairness and notice so that the Defendant can fairly prepare a defense. Fox v. Fox, Del. Supr., 729 A.2d 825, 827 n. 2 (1999) (citing Chesapeake and Potomac Telephone Co. of Md. v. Chesapeake Utilities Corp., Del. Supr., 436 A.2d 314, 338 (1981); Browne v. Robb, Del. Supr., 583 A.2d 949, 955 (1990), cert. denied, 499 U.S. 952 (1991)). "It is not sufficient to state the result or conclusion of fact arising from circumstances not set forth in the declaration, nor to make a general statement of the facts which admits of almost any proof to sustain it." Lee v. Johnson, C.A. No. 96C-03-291, Quillen, J. (June 4, 1996); Mancino v. Webb, Del. Super., 274 A.2d 711, 713 (1971) (quoting Universal Oil Products Co. v. Vickers Petroleum Co., Del. Super., 2 Terry 143, 16 A.2d 795, 797 (1940)); Davis v. Winslow, Del. Super., C.A. No. 94C-08-120, Silverman, J. (Sept. 22, 1994); see also Browne, 583 A.2d at 955.
At common law, it was said the principles of pleading consisted of rules founded upon good sense and formed for the furtherance of justice. Campbell v. Walker, Del. Super., 1 Boyce 580, 76 A. 475, 476 (1910) (citing State v. Short, 2 Har. 152, 156; Easton v. Jones, 1 Har. 433, Note A, 436). Common law pleading required specificity with a fullness and fairness that would reasonably apprise the opposing party of what he was required to meet. Id. While Delaware Rule 9(b) was patterned after Federal Rule 9(b), the Delaware Rule retained the requirement of particularity in allegations of negligence. See Phillips v. Delaware Power Light Co., Del. Super., 6 Storey 533, 194 A.2d 690, 695 (1963). Today, the purpose of Rule 9(b) is to apprise the adversary of the acts or omissions by which it is alleged that a duty has been violated. Macino, 274 A.2d at 713. Under Rule 9(b), it is usually necessary to allege only sufficient facts out of which a duty is implied and a general averment of failure to discharge that duty. Robinson v. Meding, Del. Supr., 2 Storey 578, 163 A.2d 272, 275 (1960).
In a medical malpractice action, the requirement of pleading negligence in accordance with Rule 9(b) must be applied in light of the particular situation presented by the case. See Myer v. Dyer, Del,. Super., 542 A.2d 802, 805 (1987). Even exceptionally injured plaintiffs must plead with particularity the deviation from the standard of care and causation. Marro v. Gopez, Del. Super., C.A. No. 92C-01-102, Silverman, J. (Jan. 18, 1994). As to the alleged nursing negligence here, the Amended Complaint does not plead nursing negligence with sufficient particularity. Paragraphs 7 and 8 of the Amended Complaint do, however, state:
The October 1998 Amended Complaint also states that Beebe is negligent for 1) giving credentials to Boyd, 2) failure to train after Beebe became aware of the South Carolina and Ohio license revocation and suspensions, 3) failure to train after the medical center became aware of the death of another patient prior to the death of Mrs. Joyce, 4) for failing to seek information regarding termination from other medical employers, and 5) for failing to seek information regarding arrests or criminal complaints. All of these allegations relate to credentialing in the broad sense.
Defendant WILLIS S. BOYD, M.D. was an agent, servant, and employee of the BEEBE MEDICAL CENTER, INC. and operated within the scope of his employment and his negligence along with the negligence of any other employee of the hospital, unknown at the time, is imputed. . . . [8.] BEEBE MEDICAL CENTER, INC. . . . is liable for the negligent acts and omissions of members of its staff.
This same language appeared in the original Complaint. In the Plaintiffs' Response to Beebe's Omnibus July 19, 1999 Motion, a second amended Complaint was suggested as Ex. J. The Court does not understand, however, that Barker v. Huang, Del. Supr., 610 A.2d 1341, 1342 (1992) was designed to relieve a party offering an amendment from the obligation of filing a Motion to Amend under Superior Court Civil Rule 15. Rather, I read the case as not permitting summary judgment to be granted unless an opportunity has been given for an amendment. Here it should be done by formal Motion as required by the Rule and as discussed infra.
This same language appeared in the original Complaint. In the Plaintiffs' Response to Beebe's Omnibus July 19, 1999 Motion, a second amended Complaint was suggested as Ex. J. The Court does not understand, however, that Barker v. Huang, Del. Supr., 610 A.2d 1341, 1342 (1992) was designed to relieve a party offering an amendment from the obligation of filing a Motion to Amend under Superior Court Civil Rule 15. Rather, I read the case as not permitting summary judgment to be granted unless an opportunity has been given for an amendment. Here it should be done by formal Motion as required by the Rule and as discussed infra.
Plaintiffs do not dispute the fact that the pleadings do not clearly state a claim for nursing negligence in its opposition to the Motion. Rather, Riggs identifies the testimony of several experts who will testify to Beebe's nursing staff negligence and that Beebe was on notice from the original Complaint that allegedly the negligence of the nursing staff contributed to Mrs. Joyce's death. The amended pleadings of October 1998 are not specific enough to create a claim against Beebe for a breach of the standard of care by the nursing staff of Beebe. Even though in a June 9, 1999 letter Mr. Brandt claims that the Plaintiffs' claims are not limited to the credentialing issue, the fact is that the claims for nursing staff negligence are not pleaded with sufficient particularity to overcome the Rule 9(b) standard. Thus, the nursing negligence claims cannot be asserted on the present state of the pleadings. Accordingly, as to those claims, Beebe's Motion for Summary Judgment is GRANTED without prejudice to a further Motion to Amend by the Plaintiffs. IT IS SO ORDERED.
While not directly raised in this briefing, a derivative question necessarily arises after the judgment is made that the current Complaint is inadequate to allege negligence against Beebe for its nurse employees' negligence. In a case for an injury sustained on January 5, 1996, with the original Complaint having been filed on May 10, 1996, and an Amended Complaint having been filed on October 14, 1998, should a further amendment to the Complaint be permitted after September 22, 1999 (the date of argument of these instant issues)? I suppose that question must await a formal Motion. But the Court notes now if such a Motion is not filed within two weeks for presentation at the next available routine Civil Motion hour, the Court will not permit a further amendment. If such a Motion is filed within the time noted, the Court will consider it along with any response thereto on the merits.
The sole issue remaining against Beebe becomes whether or not there is a prima facie case on the credentialing issue of Boyd's privileges at Beebe. The whole context surrounding the credentialing and training allegations strike the Court as having some difficulty due to remoteness and speculation tie-in to an alleged negligently performed operation. Boyd came to Delaware in 1987. This operation, which is the subject of this lawsuit, took place in 1996. While it is true that some additional events occurred in between, it is certainly unlikely that any of those events would or should be admissible as evidence of negligence in this case against either Boyd or Beebe unless they had the South Carolina "suspension" as some sort of premise. The Court has a hard time trying to focus the case on the real issue — whether or not Boyd negligently performed the operation and whether Beebe by the actions of its employees was negligent in performance as well. To take the focus off the operation itself by working some broader theory of negligence, suggesting Boyd should not have been in the operating room at all, is to run a significant risk of prejudice on an issue that almost necessarily is a judgment call involving local discretion and local administrative expertise in accordance with local needs and available supply.
Beebe claims that the Plaintiffs have identified no witnesses familiar with Boyd's credentialing process who can say anything done in connection therewith was other than normal and acceptable. John M. Levinson, M.D., however, has testified that "Beebe Hospital should have had the information available [about the South Carolina incident] to make a judgment whether [Boyd] should have had privileges." (Levinson Dep. at 15, see also id. at 15-38). Thus, there may be at least a scintilla of evidence now in the record that there is a dispute of fact as it relates to the credentialing issue. There is as well a contrary issue as to whether the conclusory opinion of that witness on this issue is sufficient to withstand a challenge as a matter of law. The Court is of the view that Dr. Levinson's opinion on this issue does not raise an issue of fact. He has not been shown to be an expert in hospital or medical licensing administration, nor has he ever individually served on the Delaware Board of Medical Practice. Indeed, his whole deposition testimony (as distinct from his affidavit) on this issue appears largely speculation by one who has "never been in the credentialing business." (Levinson Dep. at 25). Despite any claim of "extensive experience in credentialing, his expertise appears to be the same as any medical doctor who has had hospital privileges and, on hospital credentialing, that is not enough to qualify him as an expert witness. There is even less information in the Court's records about Dr. Klavan.
This brings us back to the statute, 24 Del. C. § 1768, the effect of which seems to be still open and perhaps properly so. The statute is very broad in its privileges and immunities and this Court has already ruled, at least in effect, that hospital credentialing committees are included under the statute. The Court said:
§ 1768. Immunity of boards of review; confidentiality of review board records.
(a) The Board of Medical Practice, the Medical Society of Delaware, their members, or the members of any committees appointed thereby or the members of any committee appointed by a certified health maintenance organization, and members of hospital and osteopathic medical society committees, or of a professional standards review organization established under federal law (or other peer review committee or organization), whose function is the review of medical records, medical care and physicians' work, with a view to the quality of care and utilization of hospital or nursing home facilities, home visits and office visits, shall not be subject to, and shall be immune from, claim, suit, liability, damages or any other recourse, civil or criminal, arising from any act or proceeding, decision or determination undertaken or performed or recommendation made so long as such member acted in good faith and without malice in carrying out the responsibilities, authority, duties, powers and privileges of the offices conferred by law upon them under this chapter (excluding only subchapter VI of this chapter) or any other provision of the Delaware law, federal law or regulations, or duly adopted rules and regulations of the aforementioned committees, organizations and hospitals, good faith being presumed until proven otherwise, with malice required to be shown by the complainant.
(b) Unless otherwise provided by this chapter, the records and proceedings of any such committees or organizations as described in subsection (a) of this section shall be confidential and shall be used by such committees or organizations and the members thereof only in the exercise of the proper functions of the committee or organization and shall not be public records and shall not be available for court subpoena or subject to discovery; and no person in attendance at a meeting of any such committee or organization shall be required to testify as to what transpired thereat. No physician, hospital, organization or institution furnishing information, data, reports or records to any such committee or organization with respect to any patient examined or treated by such physician or confined in such hospital or institution shall, by reason of furnishing such information, be liable in damages to any person or subject to any other recourse, civil or criminal. Nothing in this subsection shall prevent the Board from providing information in its possession regarding any physician licensed under this chapter, or who has been licensed under this chapter or who has attempted to be licensed under this chapter, to a medial or osteopathic licensing board of any other state or territory of the United States. The Board, its members and employees shall not be held liable in any cause of action arising out of the providing of such information, provided that such person has acted in good faith and without malice. This section shall not be construed to create any type of privilege or right to refuse to honor a subpoena issued by or on behalf of the Board of Medical Practice pursuant to § 1731A(H) of this title. (citations omitted).
Absent a contrary ruling from the Supreme Court of Delaware, there does not seem to be any doubt that the "records and proceedings" of hospital credentialing committees are "not available for court subpoena or subject to discovery." Shaw v. Metzger, Del. Super., C.A. No. 77C-DE-101, Walsh, J. (Nov. 22, 1982); Connolly v. Labowitz, Del. Super., C.A. No. 83C-AU-1, Taylor, J. (Aug. 7, 1986). Indeed, the Court has so held in this case. Riggs National Bank, et al. v. Boyd, et al., Del. Super., C.A. No. 96C-05-122-WTQ, Quillen, J. (June 13, 1997). It is hard to suggest that credentialing committees of hospitals do not come within the statute and it is hard for this Judge to understand why initial applications for staff privileges should be treated differently than other peer review functions. Danklef v. Wilmington Medical Center, Del. Super., 429 A.2d 509, 513 (1981); Dworkin v. St. Francis Hospital, Del. Super., 517 A.2d 302 (1986). Indeed, Judge Taylor in Danklef said that "the confidentiality of medical committee proceedings [should] be preserved without exception" (429 A.2d 513), a position this Judge is somewhat hesitant to embrace in advance, but one that demonstrates the force of the public policy enacted by the General Assembly. The statute itself would appear to embody an exception, in at least some cases, if the requirement of "good faith and without malice" was violated. 24 Del. C. § 1768 (a); Dworkin, 517 A.2d 304-305. And this Court, by a bench ruling in this case on January 13, 1997, in effect held that the privilege did not extend to a threshold question of professional standing in various jurisdictions. It also seems to this Judge that, in the protection of the public policy, a legislative determination of an appropriate means to uphold professional standards, the privilege should extend, at least presumptively, to both the decision makers and the information providers.
Riggs, C.A. No. 96C-05-122 (Mar. 16, 1998) at 2. With regard to the comments that initial applications for staff privileges should be treated the same as other peer review committee work, the Court adheres to the previous decision.
It seems to this Judge that it is important to protect information providers, both their identity and their communication. This would suggest that the issue of waiver is not one solely for the Hospital. Moreover, I am satisfied that the sharing of a file with the Chief of Obstetrics-Gynecology under the circumstances of this case does not breach the privilege. Boyd's employment with the Chief of Obstetrics-Gynecology is directly related to his credentialing at Beebe in this locale. The Court, however, recommends such sharing cease.
It seems to this Judge that it is important to protect information providers, both their identity and their communication. This would suggest that the issue of waiver is not one solely for the Hospital. Moreover, I am satisfied that the sharing of a file with the Chief of Obstetrics-Gynecology under the circumstances of this case does not breach the privilege. Boyd's employment with the Chief of Obstetrics-Gynecology is directly related to his credentialing at Beebe in this locale. The Court, however, recommends such sharing cease.
Title 24 Del. C. § 1768 of the Delaware Code is intended to encourage frank and open discussions of a physician's qualifications and performance by medical peer review committees. Quinn v. Kent General Hospital, Inc., D. Del., 617 F. Supp. 1226, 1234 (1985). The purpose of the statute is to prevent the chilling effect caused by the prospect of public disclosure of statements made to, or information prepared by and used by, medical review committees in the accomplishment of their assigned tasks. Dworkin v. St. Francis Hospital, Inc., Del. Super., 517 A.2d 302, 307 (1986). On March 16, 1998, this Court refused to allow discovery by way of particular interrogatories because this Judge held that the peer review and quality assurance of 24 Del. C. § 1768 precludes the disclosure of the information. Riggs, C.A. No. 96C-05-122 (Mar. 16, 1998). In that Motion, Beebe stated that it has no real objection to the disclosure of such information, and, in fact, argued that it would be in its best interest to disclose the information. Id. Beebe stated its primary reason for not disclosing the information was to protect itself against liability for wrongful disclosure. Id. At that point, Beebe asked that it be severed from the case against Boyd in order to let the underlying malpractice action continue against Boyd. Id.
There is an important public policy of confidentiality at stake; that is to encourage disclosure to peer review committees as stated by the General Assembly in 24 Del. C. § 1768. The General Assembly has determined it is in the interest of the proper administrative standards of professional conduct in this State that the confidentiality of medical committee proceedings be preserved. This Court has, however, also stated that the scope of the privilege stated in § 1768 is not unlimited. One can get the same material by an independent source. Dworkin, 517 A.2d 307; Connolly v. Labowitz, Del. Super., C.A. No. 83C-AU-1, Bifferato, J. (Dec. 17. 1984). The presentation of evidence to a covered committee is privileged. But the statute does "not shield medical review committees from challenges to the appropriateness of their actions" and "does not include insulating the decisions of such committees from outside scrutiny." Dworkin, 517 A.2d 307.
Other Judges have stated that the confidentiality of a medical committee's proceedings must be preserved without exception. Danklef v. Wilmington Medical Center, Inc., Del. Super., 429 A.2d 509 (1981); Sweede v. Cigna Healthplan of Delaware, Inc., Del. Super., C.A. No. 87C-SE-171, Del. Pesco, J. (Jan. 12, 1989); compare Hagadorn v. Davidson, Del. Super., C.A. No. 88C-MY-116, Stiftel, J. (Feb. 12, 1990) (omitting the "without exception" language in citing Judge Taylor's passage in Danklef).
It is, however, necessary to think about the implications of such a privilege. Two things come immediately to mind. First, while it is comforting to say the insulation goes only to the limited evidence presented to the peer review committee, and does not bar getting the same evidence from outside sources, the peer review committee is at least a leading depository for the very evidence being sought. Thus, in some cases, what ends up being insulated is not just the evidence, but the testing of the credentialing decision itself. Maybe such normal implications could also constitute a subsidiary State policy. To state it colloquially: "We don't want courts mucking around and second guessing and interfering with professional credentialing." Barring gross fault amounting to bad faith or malice, negligent credentialing may be prevented from being an independent basis for traditional malpractice suits. "We're going to limit liability to negligent performance on the particular patient." It seems to me we should recognize the practical consequences of the statutory policy attaching a privilege to evidence, and be certain we are willing to accept them.
Second, there is a chicken and egg problem. Any privilege reverses the normal presumptions that attach to discovery of relevant evidence under Superior Court Civil Rule 26(b)(1) standards. To this Judge, it is no cure-all to, say, produce the information in camera. It is optimistic enough to view Judges as gatekeepers for experts when they are neutral observers to an advocacy process. The advocates in the case better understand the significance of the evidence; at least they should. But to set the Judge at sea alone may in a given case be a step short of hoping for a minor miracle. Nor can the Court indulge the process by undertaking an independent chore which in some cases could be massive. Nor is an army of discovery masters a delightful prospect. This Judge is left with the thought that maybe the practical consequences of the statute in some cases are not so catastrophic. There are some valid points to support the policy of privilege and, even if the expanded consequence of the policy produces a result that seems facially harsh, perhaps it is not all that bad. Barring rare circumstances, to prove a traditional malpractice case against a credentialed surgeon, a plaintiff may have to prove the surgeon negligently performed the surgery and may occasionally lose a second defendant. Such modest insulation does emphasize the absolute need for complete and open disclosure by physicians and other professionals as to the services provided the patient or other client in the given case. Candor in the particular doctor-patient relationship is at least one cost of professional status and professionalism.
Finally, I have another concern not often expressed by Judges. I confess some uneasiness at legislative intrusion into the evidentiary process of judicial proceedings. There are, of course, constitutional limits to the creation of legislative presumptions. Beyond that, our citizens have a right to "open" Courts and "every person for an injury done to him or her [has] a remedy by due course of law." Del. Const. art. 1, § 9. The citizens' rights necessarily reflect on the opportunity to present evidence. But the General Assembly must have latitude to decide legitimate public policy issues, part of the "law of the land," including the role of Courts in the area of medical care. One can imagine a case where a hospital clearly abused its privilege such as if it credentialed a person, not a doctor, to perform surgery. That threshold showing would present a different case than this one. Without trying to make a rule for all cases, I am for the moment satisfied that absent a threshold showing of bad faith or malice, the standards suggested in at least a portion of the statute, the statutory privilege and immunities should be respected by the Courts even if it effectively shields the decision-making process from scrutiny.
It appears to the Court there is no persuasive admissible evidence for trial on the credentialing and training issues and Beebe's Motion for Summary Judgment should be granted. The issue has obviously bothered the Court and there are in the Court's view special reasons for making the order conditional. In this instance, the Hospital, Beebe, has requested disclosure, if it had to defend itself. It seems to me the Court would be remiss if it did not preserve as a sealed record a copy of Beebe's file so in any appeal the Supreme Court would have immediate control over the information. Having gone that far as a tribute to pragmatism, it seems to me that this Court, notwithstanding the comments above, should look at the file in camera, and reserve the right to modify this decision based on an in-Chambers review of the Beebe records.
It appearing that there is no persuasive admissible evidence available on the credentialing (including training) issue, Beebe's Motion for Summary Judgment on that issue is CONDITIONALLY GRANTED. IT IS SO ORDERED. Beebe is directed to produce a copy of its credentialing file relating to Boyd, certified by the custodian as complete and accurate, and in easily readable bound form, within two weeks. IT IS SO ORDERED.
BOYD'S MOTION IN LIMINE
Under D.R.E. 404(b), evidence of other crimes, wrongs, or bad acts are not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Id. The Getz factors were specifically developed for criminal proceedings, but they have analogous application to the admissibility of other wrongs or acts in civil case. Mercedes-Benz v. Norm Gershman's Things to Wear, Inc., Del. Supr., 596 A.2d 1358, 1365 (1991). The trial Court must consider six factors in order to admit Rule 404(b) evidence:
(1) The evidence must be material to the issue or ultimate fact in dispute;
(2) The "evidence must be introduced for a purpose sanctioned by 404(b)" or some other non-propensity purpose;
(3) The evidence providing the prior bad act must be plan, clear, and conclusive;
(4) The bad act must not be too remote in time from the charged offense;
(5) The probative value of the evidence must not be outweighed by the danger of unfair prejudice;
(6) The Court must give the jury a limiting instruction.Kendall v. State, Del. Supr., 726 A.2d 1191, 1195 (1999).
In this case, it appears that other crimes, wrongs, or bad acts cannot fall into the exceptions of Rule 404(b). The South Carolina suspension and the Ohio revocation of Boyd's medical license do not serve an evidentiary purpose in this case. In fact, the Delaware Supreme Court has previously held that the trial Court's exclusion of Boyd's South Carolina suspension was not reversible error. Greene v. Beebe Medical Center, Inc., Del.Supr., No. 343, 1995, 663 A.2d 487, 1995 WL 420808 (1995 (Table of decisions without published opinions). This Court agrees that evidence as to the South Carolina and Ohio suspensions are not admissible to prove negligence.
The Court said: "As to Boyd, the evidence was not admissible for purposes of proving negligence. . . . Greene's argument that it relates to credibility is unpersuasive, given the fact that she fails to demonstrate how such evidence could impact the jury's impression of Boyd's veracity. Absent a theory of probative value, inquiry into the South Carolina suspension would have led improperly into examination of highly prejudicial collateral issues." Greene, 663 A.2d 487, 1995 WL 420808, at *2.
The Court agrees with Boyd that his prior arrest, if such it be, concerning a "peeping tom" allegation has nothing to do with Boyd's practice of medicine or standard of care in a laparoscopic procedure. Thus, evidence of such cannot be admitted to prove Boyd's negligence.
Plaintiff argues that this Motion is premature because it may evolve that the reason that Boyd was not properly trained was that he was not forthright with Beebe on his application and reapplication with regard to his suspension. Plaintiffs, however, admit that evidence of the character of a person is clearly prohibited by D.R.E. 404(b). Evidence which is irrelevant for one purpose may be quite relevant for another and that trial paradox is particularly conspicuous when evidence is offered to prove some relevant independent issue, e.g., notice rather than the malpractice claim which is the foundation of the action. See Register v. Wilmington Medical Center, Inc., Del. Supr., 377 A.2d 8, 10 (1977). If, in fact, another purpose of the evidence develops that makes the evidence admissible for another reason, the Court can make a determination as to the admissibility of that evidence.
In Greene, the Court ruled: "As to admission of the evidence against Bayside, the question is closer. The South Carolina suspension had some probative value in that Greene could have argued that Bayside was negligent in failing to discover the suspension when making post-1987 decisions to retain Boyd. . . . As the trial court noted, however, even with a limiting instruction, the prejudicial effect that Boyd would suffer as a result of introduction of such evidence was considerable. The trial court's balancing under D.R.E. 403 in favor of exclusion of evidence cannot be said to have `[e]xceeded the bounds of reason in view of the circumstances, [or] . . . so ignored recognized rules of law or practice so as to prejudice injustice.'" Greene, 1995 WL 420808, at *2 (citing Lilly v. State, Del. Supr., 649 A.2d 1055, 1058 (1994)).
The remainder of Riggs' argument is primarily focused on why the information should be admitted against Beebe. Riggs argues that the South Carolina "incident" was a result of Boyd's failure to recognize the significance of the patient's vital signs ( viz blood pressure) and failure to seek timely consultation. Then, Riggs goes on to argue that Beebe stood between Boyd and the public in this case. It seems that Boyd's principal contention in its brief is that the suspensions from the practice of medicine should be admitted to prove Beebe somehow breached its duties in education and training. But the connection is thin, certainly more prejudicial than probative. It appears, moreover, that Boyd's Motion is only asking that this Court grant its Motion in Limine to exclude the prior actions in making the determination of whether Boyd's conduct fell within the standard of care of a gynecologist/surgeon practicing in the State of Delaware. See Boyd Mtn. at 4, 9. In that context, the Motion in Limine is GRANTED. IT IS SO ORDERED. It seems to the Court that it is best for the case to rise or fall on whether the surgery was negligently performed.
Riggs also argues that the reason Beebe and Boyd are arguing that Boyd was never suspended in South Carolina was that Beebe's application (which the Court has previously held privileged) has a blank that asks if "corrective action" was taken against the doctor in the past two years. It seems Riggs is arguing that, if Boyd did not report the suspension on these forms, Boyd may have obtained his credentials by trickery, or that Beebe may be relieved from liability for improper training as a result of the application results.
Sincerely,
William T. Quillen