Ashokan v. State, Dept. of Ins.

• Decision Date: 09 July 1993
• Docket Number: No. 23788,23788
• Citation: 856 P.2d 244,109 Nev. 662
• Parties: Annamalai ASHOKAN, M.D., Petitioner, v. The STATE of Nevada, DEPARTMENT OF INSURANCE; Theresa Froncek Rankin, the Commissioner of Insurance, Respondents, and Joe Carter, Individually and as Special Administrator of the Estate of Shirley Carter, Deceased, Real Party in Interest.
• Court: Nevada Supreme Court

Page 244

856 P.2d 244

109 Nev. 662

Annamalai ASHOKAN, M.D., Petitioner, v. The STATE of Nevada, DEPARTMENT OF INSURANCE; Theresa Froncek Rankin, the Commissioner of Insurance, Respondents and Joe Carter, Individually and as Special Administrator of the Estate of Shirley Carter, Deceased, Real Party in Interest.

No. 23788.

Supreme Court of Nevada.

July 9, 1993.

Pico & Mitchell and James R. Rosenberger, Las Vegas, for petitioner.

David Goldwater, Peter L. Flangas, Las Vegas, for Real Party in Interest Joe Carter.

Rawlings, Olson & Cannon, Las Vegas, for amicus curiae University Medical Center and County Com'rs.

[109 Nev. 663] Vargas & Bartlett and Jeffrey J. Whitehead, Reno, for amicus curiae Nevada State Medical Ass'n.

OPINION

PER CURIAM:

Petitioner asks this court to issue a writ of prohibition or, in the alternative, mandamus to prohibit the use of a confidential report prepared by a hospital's quality assurance/peer review committee on the ground that this report enjoys a broad privilege against disclosure or admissibility into evidence. Although the petition suffers from a procedural defect, we nonetheless reach the merits of petitioner's contention. We deny the petition because respondents' use of the report does not implicate the narrow privilege which attaches to quality assurance/peer review committee materials.

On May 12, 1990, Shirley Carter underwent urgent surgery at University Medical Center ("UMC") for a gangrenous cholecystitis and sepsis. Petitioner Annamalai Ashokan ("Ashokan") was the anesthesiologist on the case. At the time of the surgery, Shirley Carter was very ill, having suffered renal failure. She was obese, diabetic, and on dialysis. She was fifty-four years old. During surgery, Shirley Carter suffered cardiac arrest and could not be resuscitated.

UMC's Anesthesia Quality Assurance Sub-Committee ("the sub-committee") prepared a confidential report of the incident which was highly critical of Ashokan. According to the report, Ashokan employed a method of anesthesia which was "relatively, if not absolutely contra-indicated." The report concluded that Shirley Carter's death was caused by poor anesthesia management which was the result of Ashokan's "very poor" judgment.

As the preliminary step in bringing a malpractice action against Ashokan and the surgeon, Joe Carter ("Carter"), Shirley's surviving spouse, filed a complaint before the Medical-Legal Screening Panel of the State of Nevada ("the Panel"). The only documentary evidence which Carter submitted with the complaint was the confidential report of the sub-committee. It is unclear how Carter acquired the confidential report. Neither UMC nor doctors on the sub-committee consented to Carter's use of the report.

The Panel denied a motion to strike the confidential report from the complaint. Ashokan subsequently petitioned the district court to issue a writ of mandamus ordering the Panel to strike the confidential report. Ashokan contended that the confidential report was privileged from disclosure or use as evidence. On October 5, 1992, the district court issued an order denying the petition. On November 23, 1992, Ashokan brought original proceedings in prohibition or mandamus in this court.

This court or the district court may issue a writ of mandamus "to compel the performance of an act which the law especially enjoins as a duty resulting from an office, trust or station" or "to compel the admission of a party to the use and enjoyment of a right...." NRS 34.160. This court may issue a writ of prohibition to arrest "the proceedings of any tribunal, corporation, board or person exercising judicial functions, when such proceedings are without or in excess of the jurisdiction of such tribunal, corporation, board or person." NRS 34.320. The two writs are counterparts in that mandamus compels a government body or official to perform a legally mandated act, whereas prohibition compels a government body or official to cease performing acts beyond its legal authority. Cf. NRS 34.320. "[T]he decision as to whether a petition [for a writ] will be entertained lies within the discretion of this court." State ex rel. Dep't Transp. v. Thompson, 99 Nev. 358, 360, 662 P.2d 1338, 1339 (1983). However, issuance of writs is generally limited to situations where "there is not a plain, speedy and adequate remedy in the ordinary course of law." NRS 34.170; NRS 34.330.

Carter contends that this court should not entertain the petition because Ashokan could have secured adequate legal redress in the ordinary course of law simply by appealing the district court's denial of a writ. As a general rule, Carter's contention is correct.

This court has generally declined to entertain petitions for review of a district court decision where that decision was appealable. See Hickey v. District Court, 105 Nev. 729, 731, 782 P.2d 1336, 1338 (1989) (extraordinary writs available only where no other remedy in the ordinary course of law, "such as direct appeal," exists); Heilig v. Christensen, 91 Nev. 120, 123, 532 P.2d 267, 269 (1975) (this court refused to consider petition where decision of district court was appealable.). The first question, therefore, is whether this court has appellate jurisdiction over the district court's denial of a writ of mandamus.

"No appeal will be allowed unless it is authorized by statute or by rule of court properly promulgated." Bates v. Nevada Savings & Loan Ass'n, 85 Nev. 441, 443, 456 P.2d 450, 451 (1969). NRS 2.090(2) provides that this court "has jurisdiction to review upon appeal ... an order granting or refusing to grant an injunction or mandamus in the case provided for by law." Furthermore, appeals from an order of the district court either granting or denying a writ are subject to the Nevada Rules of Appellate Procedure. NRS 34.310. NRAP 3A(b)(1) states that "[a]n appeal may be taken ... [f]rom a final judgment in an action or proceeding commenced in the court in which the judgment is rendered." An order of the district court denying a writ of mandamus is a final judgment within the meaning of NRAP 3A(b)(1). See Round Hill Gen. Imp. Dist. v. Newman, 97 Nev. 601, 604, 637 P.2d 534, 536 (1981); cf. Dean v. Kimbrough, 88 Nev. 102, 104, 492 P.2d 988, 989 (1972) (in child custody case, district court's grant or denial of writ of habeas corpus is final judgment and appealable). Therefore, both NRS 2.090(2) and NRAP 3A(b)(1) confer upon this court appellate jurisdiction over the district court's order denying the writ.

It has been suggested that Ashokan was not required to appeal the order of the district court because the district court did not have jurisdiction to entertain the original petition for mandamus. If the district court did not have jurisdiction to entertain the petition for mandamus, proceedings before the district court would be a nullity, and Ashokan would not be required to appeal from a void order. Under this view, Ashokan's only recourse would have been to bring original proceedings for prohibition or mandamus in this court. ¹

In Phelps v. District Court, 106 Nev. 917, 803 P.2d 1101 (1990), this court held that the district court was without jurisdiction to entertain a complaint for declaratory and injunctive relief against the Panel. In Phelps, the district court held that the Panel's procedural rules barred the complaining party from submitting the affidavit of a medical expert with its response. Id. at 919, 803 P.2d at 1102. Accordingly, the district court enjoined the Panel from considering the affidavit. Id. at 920, 803 P.2d at 1102.

This court held that the district court's decision exceeded its jurisdiction, and issued a writ of prohibition voiding the judgment of the district court. Id. at 922, 803 P.2d at 1104. This court held that the district court could not enter a declaratory judgment because the action of the Panel did not involve the declaration of any right, status or legal relation of the parties. Id. at 920, 803 P.2d at 1103. This court further noted that the legislature had granted the Panel authority to conduct its own affairs, and that the district court could not usurp that authority by imposing its own interpretation of the Panel's procedural rules. Id. at 920-21, 803 P.2d at 1103.

The instant case differs from Phelps in that Ashokan does not base his claim upon the internal machinations of the Panel, but instead upon a statutory privilege which exists independently of the Panel's proceedings. Where the Panel proceedings infringe upon such a privilege, a party may resort to the district court for protection of that privilege. Therefore, we conclude that the district court did have jurisdiction to hear Ashokan's claim that the sub-committee report was privileged, and the proper procedure for bringing the issue before this court was via appeal of the district court order denying the writ.

Nonetheless, despite the availability of an adequate legal remedy, this court has decided to exercise its constitutional prerogative to entertain the writ. NEV. CONST. art. 6, § 4; Jeep Corp. v. District Court, 98 Nev. 440, 443, 652 P.2d 1183, 1185 (1982) (where circumstances reveal urgency or strong necessity, extraordinary relief may be granted); State of Nevada v. McCullough, 3 Nev. 202, 214-15 (1867). Although loath to deviate from our general practice, we do so for the following reasons: First, this court has not yet had the opportunity to interpret NRS 49.265(1), the statute conferring a limited privilege upon medical review committee reports. The facts of the instant case provide a unique opportunity to define the precise parameters of the privilege. Second, in view of our interpretation of the privilege, we conclude that hospitals should be made aware as soon as possible of the privilege's limited scope so that they can take appropriate measures to safeguard their files against misappropriation by unauthorized persons. Finally, because we deny the petition, respondents do not...