Pastore v. Samson, 2005-110-MP.

CourtUnited States State Supreme Court of Rhode Island
Citation900 A.2d 1067
Docket NumberNo. 2005-110-MP.,2005-110-MP.
PartiesMargaret PASTORE, in her capacity as Administratrix of the Estate of Fred V. Pastore v. Charles SAMSON, M.D. et al.
Decision Date16 June 2006

Michael T. Eskey, Esq., Providence, for Plaintiff.

Michael G. Sarli, Esq., Providence, for Defendant.

Present: WILLIAMS, C.J., and GOLDBERG, SUTTELL, and ROBINSON, JJ.

OPINION

Chief Justice WILLIAMS, for the Court.

On this writ of certiorari, Kent County Memorial Hospital (hospital) requests that we review a decision of a motion justice granting the motion of the plaintiff, Margaret Pastore (plaintiff), administratrix of the estate of Fred V. Pastore (Pastore), whereby the hospital would be required to produce in the course of discovery in this medical malpractice civil suit some 750 pages of documents pertaining to one of its doctors. The hospital's primary contention is that the production of these documents would offend the "peer-review" privilege afforded by G.L.1956 § 23-17-25 and G.L.1956 § 5-37.3-7. For the following reasons, we affirm in part and reverse in part.

I Facts and Travel

The genesis of this medical malpractice action was the death of Pastore on July 12, 1998. According to plaintiff's complaint, Charles Samson, M.D. (Dr. Samson) and Richard San Antonio, M.D. (Dr. San Antonio) provided negligent care to Pastore earlier that day at the hospital, and such treatment caused his death. As his mother and the administratrix of Pastore's estate, plaintiff brought suit against defendants, Dr. Samson, Dr. San Antonio, and the hospital (collectively defendants) in the Superior Court. In addition to a variety of other negligence-based counts, plaintiff also alleged that the hospital negligently credentialed and granted hospital privileges to Dr. Samson.

The discovery phase stalled as plaintiff and the hospital engaged in a lengthy battle over certain hospital documents concerning Dr. Samson. This discovery mêlée began when plaintiff served her third request for production on the hospital pursuant to Rule 34 of the Superior Court Rules of Civil Procedure. That request sought the following: (1) information related to the credentialing or privileges of Dr. Samson or Dr. San Antonio; (2) documents sent to Dr. Samson or Dr. San Antonio by any committee investigating or reviewing his request for, or renewal of, privileges; (3) all items setting forth any limitation upon the privileges or credentials of Dr. Samson or Dr. San Antonio.1 After the hospital objected on the grounds of peer-review privilege and after plaintiff moved to strike those objections and compel the hospital to produce the documents, a motion justice conditionally sustained the hospital's objection, giving it thirty days to compile a privilege log.

After the parties wrangled over how to protect the confidential nature of some of the documents,2 the hospital produced certain documents, as well as a privilege log for those that were not produced. Roughly two and a half years later, plaintiff moved to compel a further response, arguing that the peer-review privilege did not protect the withheld documents; the hospital eventually responded by producing some additional documents, and then supplementing the privilege log. The plaintiff then filed a renewed motion to compel a further response, requesting that the motion justice conduct an in camera review to determine whether the documents referred to in the supplemental privilege log actually were protected by the peer-review privilege. The hospital objected, arguing that the documents were protected by both the peer-review privilege and the Confidentiality of Health Care Information Act, G.L.1956 chapter 37.3 of title 5.

Based on a request that a second motion justice made at a chambers conference, the hospital submitted a second supplemental privilege log itemizing some 750 pages of documents and now asserting four categories of privileges: peer-review, confidential health-care information, board of medical licensure and discipline, and attorney-client.3 The motion justice then heard arguments from the parties concerning the privileges, as well as the hospital's additional motion to sever the negligent credentialing claim from the remaining malpractice claims. After hearing those arguments, the motion justice denied without prejudice the hospital's motion to sever; she also granted plaintiff's motion to compel the production of the documents on the condition that she would review the documents in camera and sort them into four types: documents that clearly were privileged; documents that clearly were unprivileged; documents of a questionable nature that the hospital needed to clarify; and those that contained an individual's confidential information.

After conducting that in camera review, the motion justice ordered the hospital to produce all 750 pages of the documents to plaintiff. The only limit on the disclosure was that certain documents were to be redacted to omit patient information, such as names and Social Security numbers. Although she prefaced her ruling with the concern that a negligent credentialing claim was irreconcilable with the peer-review privilege, she also reiterated that she did not consider information that was not "generated in the peer review process," such as a patient complaint, to be protected by that privilege. The only document that the motion justice referred to expressly in her ruling was a transcript — numbered 492-543 in the hospital's second supplemental privilege log — that she determined was not privileged because it only related to quality control "in the broadest sense of the term[]." Finally, the motion justice stayed the order for five days to allow for a petition to this Court for writ of certiorari.

A duty justice of this Court granted the hospital's initial motion for stay pendente lite. We then granted defendants' petition and continued the stay until further order of this Court.

II Analysis

For simplicity, we will subdivide the arguments set forth by the hospital and Dr. Samson into arguments pertaining to the peer-review privilege and arguments pertaining to other privileges.4

The central focus of the arguments set forth by both the hospital and Dr. Samson is on the peer-review privilege. The hospital posits three basic arguments with respect to that privilege. First, the hospital argues that our previous decisions concerning the peer-review privilege must be "revisited." In a similar vein, the hospital also requests that we conclude, contrary to a previous decision, that the peer-review privilege statute is a remedial statute that should be construed liberally. Second, assuming arguendo that the motion justice's legal interpretation of the peer-review privilege was correct, the hospital contends that the motion justice nevertheless erred in her application of the privilege when she ordered the production of all the documents because at least one of the documents was generated by a peer-review board and at least one other document was a transcript of a hearing of a peer-review board. Third, the hospital urges us to interpret the peer-review privilege statute to require a plaintiff to obtain information from its original source; Dr. Samson joins the hospital in this third argument.

Doctor Samson makes two additional arguments. First, Dr. Samson contends that the peer-review privilege can be interpreted consistently with the recognition of a cause of action for negligent credentialing. Second, he advocates in favor of severing the negligent credentialing claim from the rest of the claims.

Turning to arguments pertaining to other privileges, the hospital contends that the motion justice erred in ordering the production of documents protected by the attorney-client privilege, the Confidentiality of Health Care Information Act, and the confidential records of the board of medical licensure and discipline.

As we address these arguments, we remain cognizant of the applicable standards of review. Because we review this case on a writ of certiorari, we must "`scour the record to discern whether any legally competent evidence supports the lower tribunal's decision and whether the decision[-]maker committed any reversible errors of law in the matter under review.'" Cullen v. Town Council of Lincoln, 850 A.2d 900, 903 (R.I.2004). "`If legally competent evidence exists to support that determination, we will affirm it unless one or more errors of law have so infected the validity of the proceedings as to warrant reversal.'" Id. We similarly are deferential when reviewing a lower court's factual determinations on discovery issues: We will not disturb such a determination unless a motion justice abuses his or her discretion. See Corvese v. Medco Containment Services, Inc., 687 A.2d 880, 881-82 (R.I.1997).

A Peer-Review Privilege

Before reaching this issue, we must set forth the current state of the law on the peer-review privilege in this jurisdiction. Rule 26(b)(1) of the Superior Court Rules of Civil Procedure provides the outer bound of the scope of discovery: "Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action * * *."

Etymologically, the word "privilege" is derived from a combination of two Latin words meaning "private law." Jaffee v. Redmond, 518 U.S. 1, 32 n. 4, 116 S.Ct. 1923, 135 L.Ed.2d 337 (1996) (Scalia, J., dissenting). Some of the more common privileges are between "attorney and client, husband and wife, priest and penitent." Robert B. Kent et al., Rhode Island Civil Procedure § 26:7, V-21 (West 2006). A determination of the proper scope of a privilege demands a delicate balancing: "The privileges * * * are designed to protect weighty and legitimate competing interests. * * * [T]hese exceptions to the demand for every man's evidence are not lightly created nor expansively construed, for the...

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