Carolan v. Hill

• Decision Date: 18 September 1996
• Docket Number: No. 95-1030,95-1030
• Parties: James CAROLAN, Individually and as Next Friend of His Children, Brenda L. Carolan, Christine M. Eddy, and Mary Carolan, Appellants, v. Donal D. HILL, Winn H. Gregory, Medical Arts Clinic, and Jefferson County Hospital, Appellees.
• Court: Iowa Supreme Court

Page 882

553 N.W.2d 882

James CAROLAN, Individually and as Next Friend of His Children, Brenda L. Carolan, Christine M. Eddy, and Mary Carolan, Appellants, v. Donal D. HILL, Winn H. Gregory, Medical Arts Clinic, and Jefferson County Hospital, Appellees.

No. 95-1030.

Supreme Court of Iowa.

Sept. 18, 1996.

Rehearing Denied Oct. 22, 1996.

James P. Hayes, Paul J. McAndrew, Jr. and Steven A. Michalek of Meardon, Sueppel, Downer & Hayes, P.L.C., Iowa City, for appellants.

Randall C. Stravers and Marion H. Pothoven of Pothoven, Blomgren & Stravers, Oskaloosa, for appellees Hill, Gregory and Clinic.

Margaret P. Winegarden and Richard M. Tucker of Phelan, Tucker, Mullen, Bright & Walker, L.L.P., Iowa City, for appellee Hospital.

Richard J. Sapp and Darci L. Frahm of Nyemaster, Goode, McLaughlin, Voigts, West, Hansell & O'Brien, Des Moines, for amicus curiae Iowa Medical Society.

Considered by McGIVERIN, C.J., and CARTER, LAVORATO, SNELL, and ANDREASEN, JJ.

ANDREASEN, Justice.

In this medical malpractice action, James Carolan ¹ sued Donal D. Hill, D.O., Winn H. Gregory, M.D., Medical Arts Clinic, and Jefferson County Hospital (defendants) for an ulnar nerve injury he allegedly suffered during surgery. We find the district court did not abuse its discretion in ruling that the peer review records in question were not discoverable and in excluding the rebuttal testimony of one of Carolan's experts. We find the district court did abuse its discretion in refusing to permit a nurse anesthetist to testify as an expert witness. We affirm in part, reverse in part, and remand.

I. Background Facts and Proceedings.

On August 27, 1991, Carolan underwent surgery at Jefferson County Hospital to treat a severe reflex esophagitis. Dr. Gregory performed the surgery, and Dr. Hill administered the anesthesia. Following the surgery, Carolan began experiencing pain and numbness in his left arm. His arm was still hurting when he was discharged from the hospital on September 1. After numerous return visits to the hospital to have his arm examined, Carolan was diagnosed with an ulnar nerve injury to his left arm. On July 14, 1993, Carolan filed negligence and res ipsa loquitur claims against defendants, alleging the injury was caused by the improper positioning and padding of his arm during the administration of anesthesia during surgery.

During the course of discovery, Carolan learned that Dr. Robert Forbes, one of defendants' experts, had conducted reviews of the hospital's anesthesia department in 1989, 1991, and 1993. On January 6, 1995, Carolan served a subpoena duces tecum on Dr. Forbes, seeking all documents generated by virtue of these contacts. The defendants filed a motion to quash and the matter proceeded to a hearing. On January 9, after an in camera review of the documents, the district court determined they were privileged as peer review documents under Iowa Code section 147.135 (1993) and granted the motion to quash. Carolan subsequently filed a motion to exclude Dr. Forbes' testimony, arguing that if he could not discover the documents which formed the bases of his opinions, the testimony should not be allowed. On January 23, the district court denied the motion, stating that its ruling was subject to review based on Dr. Forbes' testimony at trial.

On January 12, eleven days before trial, the defendants Hill, Gregory, and Medical Arts Clinic filed a motion to exclude one of Carolan's experts, nurse Tafford Oltz, from testifying at trial. They argued that, under Iowa Code section 147.139, a nurse cannot testify as to the standard of care of a physician. The district court agreed and granted the motion to exclude.

The case was tried to a jury beginning on January 23. At the conclusion of defendants' case, Carolan sought to introduce rebuttal witnesses to refute defendants' position that ulnar nerve damage can occur regardless of what padding is done during the surgical procedure. The district court denied the request, holding that the proffered testimony was merely an expansion of Carolan's case-in-chief and not rebuttal.

On February 2, the jury returned a verdict for the defendants. Carolan filed a motion for new trial, which was denied by the district court. He raises three issues on appeal. First, Carolan contends the district court erred in its ruling on the peer review documents and on the motion to exclude Dr. Forbes' testimony. Second, he contends the district court erred in ruling that Oltz could not testify as an expert. Third, Carolan contends the district court erred in refusing to permit him to call one of the rebuttal witnesses.

II. Scope of Review.

Our scope of review is for the correction of errors at law. Iowa R.App.P. 4. In ruling upon motions for new trial, the trial court has broad but not unlimited discretion. Iowa R.App.P. 14(f)(3). Consequently, we will reverse only upon a finding of an abuse of that discretion. Foggia v. Des Moines Bowl-O-Mat, Inc., 543 N.W.2d 889, 891 (Iowa 1996). An abuse of discretion is shown only where such discretion was exercised by the court on grounds or for reasons clearly untenable or to an extent clearly unreasonable. Vaughan v. Must, Inc., 542 N.W.2d 533, 543 (Iowa 1996).

III. Peer Review Documents.

Carolan argues the district court improperly determined the requested documents to be privileged peer review records and erred in overruling his motion to exclude the expert testimony of Dr. Forbes.

The district court is vested with wide discretion in rulings on discovery matters. Pierce v. Nelson, 509 N.W.2d 471, 473 (Iowa 1993). Discovery rules are to be liberally construed to effectuate disclosure of all relevant and material information to the parties. Hutchinson v. Smith Lab., Inc., 392 N.W.2d 139, 140-41 (Iowa 1986). A party may defeat discovery by establishing that the material sought is privileged or irrelevant. AgriVest Partnership v. Central Iowa Prod. Credit Ass'n, 373 N.W.2d 479, 482 (Iowa 1985). One resisting discovery through assertion of privilege has the burden of showing that a privilege exists and applies. Hutchinson, 392 N.W.2d at 141. An asserted privilege is narrowly construed because it is an exception to our rules governing discovery. Id.

However, Iowa has a broad statutory privilege for the writings and other records generated by a peer review committee, explicitly set forth in a 1986 amendment to Iowa Code section 147.135 (1985). Id. When an asserted privilege is based on a statute, the terms of the statute define the reach of the privilege. AgriVest, 373 N.W.2d at 483.

Peer review means "evaluation of professional services rendered by a person licensed to practice a profession." Iowa Code § 147.1(8). Peer review records are defined as "all complaint files, investigation files, reports, and other investigative information relating to licensee discipline or professional competence in the possession of a peer review committee or an employee of a peer review committee." Id. § 147.135(2). The statute explains the extent of the privilege:

Peer review records are privileged and confidential, are not subject to discovery, subpoena, or other means of legal compulsion for release to a person other than an affected licensee or a peer review committee and are not admissible in evidence in a judicial or administrative proceeding....

Id.

Carolan argues that the statutory privilege of Iowa Code section 147.135(2) is not applicable to Dr. Forbes' reviews because, when reading sections 147.1(8) and 147.135(2) together, "peer review records" is intended to mean those records relating to the discipline or professional competence of a specific licensee. Therefore, Carolan argues, the documents should be discoverable pursuant to Iowa Rule of Civil Procedure 125(a) because the reviews were not related to a specific licensee. We disagree.

Even though Iowa Rule of Civil Procedure 125 allows for broad discovery of the facts known, mental impressions, and opinions held by an expert to be called as a witness at trial, there are limitations. Iowa Rule of Civil Procedure 122(a) limits the scope of discovery to "any matter, not privileged, which is relevant to the subject matter involved in the pending action...." (Emphasis added.) This rule requires statutory privileges to be honored.

Further, the narrow reading of the statutes, urged by Carolan, was not intended by the legislature. We have already held that the statutory privilege of Iowa Code section 147.135 is broad. Hutchinson, 392 N.W.2d at 141. There are several policy reasons for adopting this broad privilege:

It allows a physician to consult with peers about his [or her] care and treatment of a particular patient. It also allows critical retrospective analysis of cases to learn better methods of treatment for the future. Similarly, it encourages peers to lodge complaints and initiate disciplinary action against those who are practicing substandard care, without fear of disclosure or retribution.

Thomas A. Finley et al., Tort Reform and Medical Malpractice: Iowa's Past, Present, and Future, 36 Drake L.Rev. 669, 676 (1986-87).

Peer review privileges encourage an effective review of medical care. If such records were privileged only when directed at a specific licensee, hospitals would have difficulty conducting reviews of their health care departments. Without the broad protections, physicians would be very reluctant to participate, knowing the information could easily be revealed in a court of law. We hold that the statutory privilege of Iowa Code section 147.135(2) covers the documents involved in this case. All of the documents requested by Carolan relate to Dr. Forbes' peer review investigation of the hospital's anesthesia department in 1989, 1991, and 1993.

Carolan also argues that the trial judge's in camera review of the documents was inadequate. There is no support in the record to indicate that the trial judge abused his discretion. He examined the records and determined they had no...