Auld v. Holly, s. 78-2657

• Decision Date: 16 June 1982
• Docket Number: Nos. 78-2657,79-972,s. 78-2657
• Citation: 418 So.2d 1020
• Parties: Albert W. AULD, M.D., Appellant, v. Eugene HOLLY, M.D., et al., Appellees.
• Court: Florida District Court of Appeals

Page 1020

418 So.2d 1020

Albert W. AULD, M.D., Appellant, v. Eugene HOLLY, M.D., et al., Appellees.

Nos. 78-2657, 79-972.

District Court of Appeal of Florida,

Fourth District.

June 16, 1982.

Rehearings Denied Sept. 20, 1982.

Edna L. Caruso, West Palm Beach, and Stephen Cahen, Miami, for appellant.

Marjorie Gadarian Graham of Jones & Foster, P.A., West Palm Beach, for appellee-Eugene Holly, M.D.

Michael B. Davis of Walton, Lantaff, Schroeder, Carson & Wahl, West Palm Beach, for appellee-Hubert L. Rosomoff, M.D.

Rosemary Cooney and John S. Wilbur, Jr., of Paxton, Crow, Taplin & Bragg, P.A., West Palm Beach, for appellee-Robert S. Tolmach, M.D.

Kent S. Pratt of Law Office of Frank G. Cibula, Jr., West Palm Beach, for appellee-Albert Ehlert, M.D.

PER CURIAM.

This is an appeal from a judgment rendered in favor of the defendants (the appellees) in a defamation action. The principal issues are (1) whether the trial court erred in limiting discovery based on Section 768.40, Florida Statutes (1977), and (2) whether the trial court improperly instructed the jury on the elements necessary to prove slander. We reverse and remand for a new trial. ¹

The plaintiff below, Dr. Auld (the appellant), applied for staff privileges at Good Samaritan Hospital. The hospital's by-laws required him to release from liability hospital representatives and persons furnishing information concerning his application to the hospital. The release covered acts connected with his application and performed in good faith and without malice.

The hospital rules also required Auld to interview with the chief physician in charge of the division in which he desired staff privileges, the neurosurgery division. Dr. Holly, who was the chief physician of neurosurgery and is an appellee here, interviewed Auld. Holly also contacted a number of physicians to verify information gleaned from the interview. Those physicians included the other appellees, Drs. Rosomoff, Tolmach, and Ehlert.

Dr. Holly submitted a report concerning Auld to the hospital's credentials committee. ² The committee, for whatever reason, denied Auld's application. The committee's decision was later affirmed by the hospital's appellate review committee.

Dr. Auld then filed suit against the four appellees. He alleged that he was denied staff privileges at the hospital; suffered a loss of reputation, referrals, patients, and fees; sustained a blemish on his record; and suffered mental pain as a result of allegedly false and defamatory statements made by Drs. Rosomoff, Tolmack, and Ehlert and published to the committee by Dr. Holly. The appellees denied the allegations of the complaint and alleged that the statements were true and privileged.

Dr. Auld sought discovery of the credentials committee's records and sought to examine witnesses concerning the denial of staff privileges. He alleged that discovery was necessary to refute the appellees' assertion that he was denied staff privileges because of an incident involving the filming of a pornographic movie on his yacht, rather than appellees' alleged defamatory statements. The trial court denied discovery on the grounds that it was barred by Section 768.40(4), Florida Statutes (1977).

The defamation action was tried before a jury. The jury returned a special verdict finding that the allegedly defamatory statements were made, but that the statements did not "tend to expose the Plaintiff to hatred, ridicule or contempt or tend to injure the Plaintiff in his profession." Thus, the jury found that the statements were not defamatory because they did not cause Auld any damages. The jury did not make any findings on whether the statements were true or privileged. A judgment was entered in accordance with the verdict.

DISCOVERY PRIVILEGE

The first question we must decide is whether the trial court erred in limiting discovery. Dr. Auld asserts that the trial court erred by refusing to allow discovery of the credentials committee's records and by refusing to allow Auld to examine witnesses concerning the committee's denial of Auld's application for staff privileges. Auld contends that he needed the records to prove that the allegedly defamatory statements caused the denial.

The appellees assert that those proceedings were protected by Section 768.40, Florida Statutes, and that subsection (4) of the statute bars discovery of those proceedings. ³ While we find some merit in the appellees' position, we have concluded that the statute does not bar discovery in this case.

We begin our analysis by noting that almost all of the provisions of Section 768.40, Florida Statutes (1981), are ambiguous. The Legislature has amended this statute four times since its enactment, and with each amendment the statute has become more complicated and the exact intent of the Legislature more difficult to discern. See Ch. 72-62, §§ 1 and 2; Ch. 73-50, §§ 1 and 2; Ch. 77-461, §§ 1 and 2; Ch. 79-400, § 285; and Ch. 80-353, § 3, Laws of Fla.

What is obvious from the statute, however, is that the Legislature has endorsed peer review as an important means to foster the improvement of health care services in Florida. By enacting this statute, the Legislature has encouraged self-policing and peer review by so-called "medical review committees."

A "medical review committee" was originally defined as any committee "which is formed to evaluate and improve the quality of health care rendered by providers of health service, to determine that health services were professionally indicated or that the cost of health care was considered reasonable ...." Ch. 72-62, § 1, Laws of Fla. The definition was later expanded to include committees which determine whether health services "were performed in compliance with the applicable standard of care." Ch. 73-50, § 1, Laws of Fla.

At the outset, we must decide whether a hospital's credentials committee is a "medical review committee" as defined by the statute. A credentials committee is a medical review committee so long as the purpose of the committee is one of those listed in the statute. It is apparent that at least one of the purposes of the credentials committee in the present case is to improve the quality of health care at the hospital by limiting staff privileges to doctors of a certain caliber of competence. Therefore, we conclude that the credentials committee is a medical review committee. ⁴

The Legislature apparently enacted Section 768.40 in response to the problems confronting self-policing and peer review efforts by medical review committees. We perceive at least two major problems that the Legislature apparently addressed: (1) people will refuse to participate because of the threat of a lawsuit against them by the people they police, and (2) people will refuse to furnish information to the committees in order to protect their friends and colleagues from malpractice liability.

The Legislature addressed the first of these problems by enacting subsection (2) of Section 768.40. As originally enacted, subsection (2) conferred a limited tort immunity on the members of medical review committees. In 1980 the Legislature expanded the tort immunity to protect "health care providers" that furnish information to the committees. Ch. 80-353, § 3, Laws of Fla. The statute defines health care providers as physicians, osteopaths, podiatrists, dentists, chiropractors, and pharmacists. § 768.40(1), Fla. Stat. (1981); see Ch. 77-461, § 1, Laws of Fla. Thus, medical review committees and the doctors who provide information to the committees enjoy statutory tort immunity under Section 768.40(2).

This immunity protects persons who make mistakes in reviewing and evaluating their peers or in furnishing information to a review committee. Without this immunity, committee members might not want to participate because of the threat of a lawsuit against them by the doctors whose activities are reviewed. Similarly, without tort immunity, other doctors might refuse to furnish information to a committee for fear of defamation suits against them. ⁵ This tort immunity, however, is limited; it applies only so long as the protected party acts without fraud or malice. Thus, while the Legislature recognized that the threat of lawsuits might inhibit the activities of medical review committees, it was not willing to absolutely bar suits against committee members and the doctors who furnish information to the committees. The Legislature merely said that so long as those engaged in the self-policing effort act without fraud or malice, they will incur no tort liability for their mistakes.

After having enacted subsection (2) to deal with the problem of lawsuits by a doctor whose conduct was reviewed, the Legislature added subsection (4) to the statute. ⁶ We believe that this subsection was intended to address a different problem than subsection (2), the problem that the records of review proceedings might be used by a doctor's patient to prove malpractice. Subsection (4) provides as follows:

The proceedings and record of ... [a medical review committee] shall not be subject to discovery ... in any civil action against a provider of professional health services arising out of the matters which are the subject of evaluation and review by [a medical review committee] ....

§ 768.40(4), Fla. Stat. (1981).

Because of subsection (4), a doctor can provide information to a committee without the fear that the information might later be used against a colleague in a malpractice action. Even if the information already existed, the activity of the committee in marshalling the facts and making a determination could be very prejudicial in a subsequent malpractice case. Thus, we believe that the Legislature added subsection (4) because it believed that the medical community would not enthusiastically engage in self-policing as a means to improve health care if the self-policing efforts could later be used in medical malpractice cases.

We have previously...