Trinity Medical Center, Inc. v. Holum

• Decision Date: 28 February 1996
• Docket Number: 950288 and 950289,Nos. 950284,s. 950284
• Citation: 544 N.W.2d 148
• Parties: TRINITY MEDICAL CENTER, INC., Petitioner v. Honorable Gary A. HOLUM, Judge of the District Court, Ward County, North Dakota, Michael K. Keplin and Mark Anthony De Naples, Respondents. TRINITY MEDICAL CENTER, INC., Petitioner v. The Honorable Gary A. HOLUM, Judge of the District Court, Ward County, North Dakota, and Phyllis Hagen, Respondents. TRINITY MEDICAL CENTER, INC., David M. Burnette and Radiology Consultants, P.C., Petitioners v. The Honorable Gary A. HOLUM, Judge of the District Court, Ward County, North Dakota, Robert D. Sivertson and Mark Anthony De Naples, Respondents. Civ.
• Court: North Dakota Supreme Court

Page 148

544 N.W.2d 148

TRINITY MEDICAL CENTER, INC., Petitioner v. Honorable Gary A. HOLUM, Judge of the District Court, Ward

County, North Dakota, Michael K. Keplin and Mark

Anthony De Naples, Respondents.

TRINITY MEDICAL CENTER, INC., Petitioner v. The Honorable Gary A. HOLUM, Judge of the District Court, Ward County, North Dakota, and Phyllis Hagen, Respondents.

TRINITY MEDICAL CENTER, INC., David M. Burnette and Radiology Consultants, P.C., Petitioners v. The Honorable Gary A. HOLUM, Judge of the District Court,

Ward County, North Dakota, Robert D. Sivertson and

Mark Anthony De Naples, Respondents.

Civ. Nos. 950284, 950288 and 950289.

Supreme Court of North Dakota.

Feb. 28, 1996.

Randall Hanson (argued) and Patrick J. Maddock (appearance), of Camrud, Maddock, Olson & Larson, Ltd., Grand Forks, for petitioner Trinity Medical Center.

Brenda L. Blazer (appearance), of Zuger Kirmis & Smith, Bismarck, for petitioners David M. Burnette and Radiology Consultants, P.C.

Charles L. Neff (argued), of Bjella, Neff, Rathert, Wahl & Eiken, P.C., Williston, for respondent Michael K. Keplin.

Alvin O. Boucher (argued), of Robert Vogel Law Office, P.C., Grand Forks, for respondent Phyllis Hagen.

Roger R. Sundling (argued), of Robert Vogel Law Office, P.C., Grand Forks, for respondent Robert D. Sivertson.

Mark De Naples, Las Vegas, Nev., pro se.

John C. Kapsner, of Kapsner & Kapsner, Bismarck, for amicus curiae North Dakota Hospital Association. Submitted on brief.

LEVINE, Justice.

Trinity Medical Center, Inc. [Trinity], Dr. David Burnette, and Radiology Consultants, P.C., have petitioned this court for a supervisory writ to vacate a district court order compelling discovery. We conclude that this is an appropriate case to exercise our supervisory jurisdiction, and we direct the district court to vacate its June 30, 1995 discovery order and to enter an order in accordance with this opinion.

I. FACTS

Desiring to establish a neurosurgery department at its Minot hospital, Trinity, in 1990, recruited Dr. Mark De Naples, a neurosurgeon from Columbus, Mississippi, to relocate his practice to Minot. In addition to staffing and equipping its hospital to support a neurosurgeon, Trinity provided financial incentives to Dr. De Naples.

In July 1991, Michael Keplin broke his neck in a car accident. He was taken to Trinity, where Dr. De Naples performed surgery to fuse the break in Keplin's neck. Dr. De Naples operated at the wrong location of Keplin's spine and, despite four weeks of post-operative care at Trinity, Keplin was released from the hospital with his neck still broken. Keplin alleges that he suffered permanent and debilitating injuries resulting from Dr. De Naples's negligent treatment.

Phyllis Hagen suffered a fractured vertebra in her neck in a July 1991 car accident. Dr. De Naples performed surgery at Trinity to fuse the broken vertebra, but again operated on the wrong part of the patient's body and fused the wrong vertebrae. Hagen asserts that she first learned of the negligent surgery nearly a year later, and that she suffered permanent debilitating injuries.

In January 1992, Robert Sivertson sustained a broken vertebra in his neck in a car accident. Dr. De Naples performed two surgeries upon Sivertson at Trinity. On each occasion, Dr. De Naples erroneously operated on Sivertson's back, when he was supposed to operate on Sivertson's neck. Sivertson alleges that he suffered permanent injuries resulting from Dr. De Naples's improper treatment.

Dr. De Naples resigned from Trinity's medical staff in 1992. After practicing a short time in New Mexico, Dr. De Naples retired to Las Vegas and declared bankruptcy. He has since been diagnosed with Alzheimer's Disease.

Keplin, Hagen, and Sivertson each sued Trinity, alleging that Dr. De Naples was an agent of Trinity, that Trinity negligently supervised Dr. De Naples, and that Trinity negligently credentialed Dr. De Naples to practice at Trinity. Keplin also sued Dr. De Naples, and Sivertson also sued Dr. De Naples, Dr. David Burnette, and Radiology Consultants, P.C. The three cases have been consolidated for discovery.

Disputes arose during discovery over application of the peer review/quality assurance privilege, codified in Sections 23-01-02.1 and 31-08-01, N.D.C.C. Keplin ¹ sought, through interrogatories and depositions, to elicit information relating to Dr. De Naples's practice at Trinity, and specific information regarding any in-hospital review of Dr. De Naples's care of these plaintiffs. Trinity ² objected, asserting application of the statutory privilege and urging an expansive reading of the privilege to cover all documents and information produced, collected, or presented in the entire quality assurance process. Keplin urged a narrow view of the privilege to cover only testimony to and discussions of the quality assurance committee. After briefing and a hearing, the district court, on June 30, 1995, issued its order directing Trinity to produce all requested information and documents, and to produce individuals requested for depositions, except:

"Any complaints regarding Dr. DeNaples made by physicians, nurses or hospital staff to the internal Quality Assurance Committee and any records of those complaints, or discussions of those complaints, with the internal Quality Assurance Committee."

The district court granted Trinity's motion for a stay pending application to this court for a supervisory writ.

II. JURISDICTION

We first determine whether this is an appropriate case to exercise our supervisory jurisdiction. Our authority to issue supervisory writs is derived from Article VI, Section 2 of the North Dakota Constitution. Heringer v. Haskell, 536 N.W.2d 362, 364 (N.D.1995); Reems ex rel. Reems v. Hunke, 509 N.W.2d 45, 47 (N.D.1993). The power to issue a supervisory writ is discretionary with this court and cannot be invoked as a matter of right. Heringer, supra, 536 N.W.2d at 364. Superintending control over inferior courts is used only to rectify errors and prevent injustice in extraordinary cases where no adequate alternative remedy exists. Heringer, supra, 536 N.W.2d at 364-365; Reems, supra, 509 N.W.2d at 47.

The district court order compelling Trinity to produce the requested documents and information is not appealable, and Trinity has no other recourse but to produce the information or be held in contempt. See Reems, supra, 509 N.W.2d at 47; Polum v. North Dakota District Court, 450 N.W.2d 761, 763 (N.D.1990). Trinity has no viable alternative remedy to a supervisory writ. We therefore conclude this case is appropriate for exercise of our supervisory jurisdiction.

III. SCOPE OF THE PRIVILEGE

The medical peer review privilege is codified at Sections 23-01-02.1 and 31-08-01, N.D.C.C. Section 23-01-02.1 says in pertinent part:

"23-01-02.1. Hospital utilization committees--Internal quality assurance review committees--Reports--Immunity. Any information, data, reports, or records made available to a mandatory hospital committee or extended care facility committee as required by state or federal law or by the joint commission on accreditation of hospitals by a hospital or extended care facility or any physician or surgeon or group of physicians or surgeons operating a clinic or outpatient care facility in this state or to an internal quality assurance review committee of any hospital or extended care facility in this state are confidential and may be used by such committees and the members thereof only in the exercise of the proper functions of the committees. The proceedings and records of such a committee are not subject to subpoena or discovery or introduction into evidence in any civil action arising out of any matter which is the subject of consideration by the committee. Information, documents, or records otherwise available from original sources are not immune from discovery or use in any civil action merely because they were presented during the proceedings of such a committee, nor may any person who testified before such a committee or who is a member of it be prevented from testifying as to matters within that person's knowledge, but a witness cannot be asked about that witness' testimony before the committee."

Section 31-08-01, governing admissibility of business records, says in pertinent part:

"The records and proceedings of any regularly constituted medical review committee of a licensed medical hospital or a medical society in this state shall not be subject to discovery or admissible as evidence."

The parties disagree about the answers to two fundamental questions arising under the statutes: Which hospital committees are covered by the privilege and what information and documents are protected?

Rule 501, N.D.R.Evid., requires that, unless expressly privileged by constitution, statute, or rule, no person may refuse to be a witness, refuse to disclose any matter, refuse to produce any object or writing, or prevent anyone else from so disclosing or producing. State v. Red Paint, 311 N.W.2d 182, 185 (N.D.1981). Evidentiary privileges must be narrowly construed because they are in derogation of the search for truth. E.g., State v. Schroeder, 524 N.W.2d 837, 840 (N.D.1994); Rudh v. Rudh, 517 N.W.2d 632, 637 (N.D.1994); see also United States v. Nixon, 418 U.S. 683, 710, 94 S.Ct. 3090, 3108, 41 L.Ed.2d 1039, 1065 (1974) ("these exceptions to the demand for every man's evidence are not lightly created nor expansively construed, for they are in derogation of the search for truth"). As we explained in State v. Red Paint, supra, 311 N.W.2d at 185:

"Those relationships which have been deemed sufficiently important to warrant a rule of privilege have been expressly delineated by rule, statute, and constitutional provision in this State. These provisions will be strictly construed to protect only those relationships which have been deemed to engender a public good which outweighs the principle that all rational means should be employed...