Beth Israel Hosp. and Geriatric Center v. District Court In and For City and County of Denver, 83SA147

• Decision Date: 29 May 1984
• Docket Number: No. 83SA147,83SA147
• Citation: 683 P.2d 343
• Parties: BETH ISRAEL HOSPITAL AND GERIATRIC CENTER, Petitioner, v. The DISTRICT COURT In and For the CITY AND COUNTY OF DENVER; The Honorable Daniel B. Sparr, one of the Judges thereof; and Frank O. Franco, M.D., Respondents.
• Court: Colorado Supreme Court

Page 343

683 P.2d 343

BETH ISRAEL HOSPITAL AND GERIATRIC CENTER, Petitioner, v. The DISTRICT COURT In and For the CITY AND COUNTY OF DENVER;

The Honorable Daniel B. Sparr, one of the Judges

thereof; and Frank O. Franco, M.D., Respondents.

No. 83SA147.

Supreme Court of Colorado,

En Banc.

May 29, 1984.

Hansen & Breit, P.C., John L. Breit, Susan Smith Fisher, Denver, Quiat, Dice & Associates, Andrew L. Quiat, Denver, for petitioner.

Roath & Brega, P.C., Robert E. Kendig, Denver, for respondents.

L. Duane Woodard, Atty. Gen., Charles B. Howe, Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Ann Sayvetz, Asst. Atty. Gen., Denver, for amicus curiae, Colorado State Board of Medical Examiners.

ROVIRA, Justice.

Petitioner, Beth Israel Hospital and Geriatric Center (Beth Israel), filed this original proceeding pursuant to C.A.R. 21. It seeks an order prohibiting respondent district court from compelling petitioner to produce certain medical records. We issued a rule to show cause and now discharge the rule.

I.

This is the second time we have issued a rule to show cause in the litigation between Dr. Franco and petitioner. In Franco v. District Court, 641 P.2d 922 (Colo.1982), we set out in detail the factual background of this litigation. We find no need to repeat it here.

In the first original proceeding, we considered Franco's request for the production of all notes, reports, memoranda, audits and written recommendations of the review committees of Beth Israel, as well as all documents from within and without the hospital relating to the review committee's recommendations. We denied the request, holding that section 12-43.5-101 to -103, 5 C.R.S. (1978), shielded such records from discovery in all civil litigation, except a judicial review proceeding. Franco, 641 P.2d at 927.

On return of the case to the district court, Franco filed another request for production of documents. He sought to inspect and copy the hospital's medical records of eighteen patients for whom he was the physician primarily responsible for their care and treatment.

The petitioner objected to the request on the ground that since the records were reviewed by its Surgical Committee as part of the process of reviewing the surgical services rendered by Franco, they are protected from disclosure pursuant to section 12-43.5-102(3)(e), 5 C.R.S. (1978). The thrust of petitioner's argument was that even though Franco was involved with the care of the patients whose medical records he wished to see, once the review committees considered the records in their deliberations, they became "records of a review committee" and therefore are privileged from discovery.

After a hearing on Franco's motion to compel, the respondent trial court framed the issue for decision as "whether the patient records here involved are in fact records of the peer review committee." The court concluded that the mere use of the patient records as part of the review committee proceedings did not make them "records of a review committee," and they were not written reports of witnesses, documents, and other materials which were privileged. See Franco, 641 P.2d at 925 n. 3. The motion to compel was granted.

II.

The sole issue for resolution is whether, under the facts of this case, the patient medical records are privileged under section 12-43.5-102(3)(e), 5 C.R.S. (1978) and, hence, not discoverable. That statute is part of an article which is designed "to encourage discipline and control of the practice of health care rendered by physicians by committees made up of physicians licensed to practice in this state." Section 12-43.5-101, 5 C.R.S. (1978). To promote this peer review committee process, the statutory privilege in question, section 12-43.5-102(3)(e), provides: "The records of a review committee shall not be subject to subpoena in any civil suit ...." In Franco, 641 P.2d 922, we determined, inter alia, that petitioner's Surgical Committee and Medical Executive Committee are "review committees" for the purposes of section 12-43.5-102(3)(e), and that the privilege applies in Franco's suit. Here, petitioner argues that the patient medical records are "records of areview committee" within the meaning of section 12-43.5-102(3)(e), and, therefore, privileged.

Legislative intent is the polestar of statutory construction. E.g., Franco, 641 P.2d at 929; Posey v. District Court, 196 Colo. 396, 586 P.2d 36 (1978); People v. Lee, 180 Colo. 376, 506 P.2d 136 (1973). In Posey, 196 Colo. at 399, 586 P.2d at 38, we said: "[t]he legislative intent was that the records of the review committee would be privileged, so that the committee could freely, openly, and with unfettered discretion exercise its collective professional judgment." We discussed this idea more extensively in Franco:

"It would be unreasonable to impose upon committee members a statutory duty to 'openly, honestly, and objectively study and review' ¹ the conduct of practicing members of the medical profession if the records of their study and review were available for discovery in subsequent litigation seeking money damages against the hospital, its review committees and the individual members thereof for disciplinary action imposed in the peer review process. In addition, members of the medical profession cannot be expected to initiate or willingly participate in a peer review investigation if their testimony and reports may be subjected to discovery in subsequent civil litigation involving issues far beyond a meaningful judicial review of the committee's action."

641 P.2d at 928-29. Here, Franco does not seek to obtain records of the committee's discussion or of any testimony or report filed by another professional who participated in the committees' reviews. Rather, he wishes to obtain his own patients' medical records. Franco's request for discovery poses no threat to the free, unfettered discussion among committee members and other participants that the legislature intended to protect through the privilege granted by section 12-43.5-102(3)(e). ²

In general, four conditions are necessary to the recognition of a privilege against the disclosure of communications:

"(1) The communications must originate in a confidence that they will not be disclosed.

(2) This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties.

(3) The relation must be one which in the opinion of the community ought to be fostered.

(4) The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation."

8 J. Wigmore, Evidence in Trials at Common Law, § 2285 (McNaughton rev. 1961) (emphases deleted); see, e.g., Neusteter v. District Court, 675 P.2d 1 (Colo.1984); Lindsey v. People, 66 Colo. 343, 181 P. 531 (1919); In re Doe, 711 F.2d 1187 (2d Cir.1983); Tabor v. Commonwealth, 625 S.W.2d 571 (Ky.1982).

Here, the patient medical records did not originate in a confidence that they would not be disclosed to Franco. Presumably all parties would agree that Franco, as the physician primarily responsible for the care and treatment of these patients, had access to these files before they were reviewed by the committees. Petitioner does not argue that the records were always privileged, but, rather, that they became privileged when they were given to the committees. In addition, the record before us does not show that Franco intends to breach the confidence placed in him by any of these patients. We see no reason why, for the purposes of Franco's suit, the identities of these patients would be disclosed. Franco has requested the records according to the cases' numbers, not the patients' names.

Petitioner argues that allowing Franco to see his patients' medical records would defeat the legislature's objective of establishing statutorily granted judicial review of the committee's actions as the primary means of redress for discipline imposed in the review process. Franco, 641 P.2d at 929; see section 12-43.5-102, 5 C.R.S. (1978). But in Franco, we said:

"Our reference to judicial review as the primary means of legal redress for disciplinary action resulting from the peer review process is not intended to imply that a physician may not forego that remedy and, as here, bring an action in tort against the hospital, its review committees and the committee members. Rather, our remarks are intended to point up the legislature's intent to prohibit discovery of committee records in such an action."

641 P.2d at 929 n. 9. Our decision here does not disturb judicial review as the primary means of redress, and allows the kinds of actions in tort contemplated in Franco, Id. Section 12-43.5-103(2, 3), 5 C.R.S. (1978), provides broad tort immunities for those who participate in the peer review process:

"(2) A member of a review committee or a witness before a review committee shall be immune from suit in any civil action brought by a physician who is the subject of review by such committee if such member or witness acts in good faith within the scope of the function of such committee, has made a reasonable effort to obtain the facts of the matter as to which he acts, and acts in the reasonable belief that the action taken by him is warranted by the facts.

(3) The board of trustees of a hospital and the individual members of a board of trustees shall be immune from suit for damages in a civil action brought by a physician who is the subject of action taken in good faith by such board if the action is based upon recommendations of the review committee; but nothing in this subsection (3) shall preclude judicial review of the action of a board of trustees."

Therefore, disciplined physicians who sue in tort must allege and prove that peer review participants have exceeded the bounds of good faith and reasonable belief, as set forth above, and in such actions cannot use materials or discussions...