Carr v. Howard

• Decision Date: 22 January 1998
• Parties: John F. CARR v. Marjorie A. HOWARD, administratrix 1 ; New England Deaconess Hospital Corp., Third-Party Defendant.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1304

689 N.E.2d 1304

426 Mass. 514

John F. CARR v. Marjorie A. HOWARD, administratrix ¹; New England Deaconess Hospital Corp., Third-Party Defendant.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Nov. 4, 1997.

Decided Jan. 22, 1998.

Robert P. Powers, Boston (Matthew J. Kadnar, with him), for New England Deaconess Hospital Corp.

Michael A. West, Boston, for John F. Carr.

Edmund P. Daley, Boston, for Marjorie A. Howard, was present but did not argue.

The following submitted briefs for amici curiae:

James T. Hilliard and Jason R. Talerman, Wapole, for The Massachusetts Psychiatric Society.

Fredric J. Entin and James A. Henderson, Chicago, Il, and Scott L. Robertson and Virginia H. Hackney, Richmond, VA, for American Hospital Association.

Carl Valvo, Thomas R. Kiley, Matthew L. Schemmel and Michael J. Kelly, Boston, for The Professional Liability Foundation, Ltd.

John J. St. Andre, Jr., Framingham, and Edwin L. Wallace, Boston, for Massachusetts Academy of Trial Attorneys.

Before WILKINS, C.J., and ABRAMS, LYNCH, GREANEY, FRIED, MARSHALL and IRELAND, JJ.

FRIED, Justice.

This case presents the question whether, during the discovery process, the confidentiality provisions of G.L. c. 111, §§ 204 and 205, preclude in camera review of "incident reports" by a trial judge to determine whether the medical peer review committee privilege of § 204 applies. We hold that in camera review is not appropriate in this case.

I

On July 22, 1993, Stanley W. Howard (Howard), a psychiatric patient at New England Deaconess Hospital (Deaconess), broke away from an escort as he was being transported between buildings and jumped to his death from the fifth floor of the hospital parking garage, landing on John F. Carr. Carr filed suit against Marjorie A. Howard, the administratrix of Howard's estate. The administratrix then filed a third-party suit against Deaconess and others seeking contribution toward any judgment rendered in favor of Carr, and for wrongful death, alleging negligence in the care of Howard.

On September 30, 1996, Carr served a subpoena on Deaconess seeking records related to Howard's condition or care, including any "incident/deviation/unusual occurrence report, prepared by the New England Deaconess Hospital, its agents, servants, employees or staff." Deaconess refused to produce such documents on the ground that they were privileged under G.L. c. 111, §§ 204 and 205, as necessary to the work of a medical peer review committee. Carr moved in Superior Court to compel Deaconess to produce any incident reports regarding Howard's death. ² On December 16, 1996, Deaconess opposed Carr's motion and submitted an affidavit of its assistant general counsel, stating that the incident reports in question were necessary to comply with risk management and quality assurance programs established by the board of registration in medicine (board), that these reports were not available from any independent source and were not part of the medical record of a patient, and that the reports were necessary to the work of a medical peer review committee.

After a status conference, the judge ordered the incident reports produced for in camera review. Deaconess refused to comply. On February 10, 1997, Deaconess submitted a supplemental memorandum in opposition to Carr's discovery request and an additional set of affidavits. These included affidavits from the vice-chairman of the medical executive committee and a member of the patient care assessment committee, the director of clinical psychiatry at Deaconess, the program director of the department of psychiatry at Deaconess, and the patient care assessment coordinator at Deaconess. These affidavits stated that incident reports are necessary to the work of the patient care assessment committee and that in camera review would negatively affect the functioning of the medical peer review process at Deaconess. The affidavits also provided a complete description of the peer review process. In addition, Deaconess submitted its bylaws, rules, and regulations.

On February 27, 1997, a Superior Court judge entered a written order again directing Deaconess to produce the documents for in camera review. Pursuant to G.L. c. 231, § 118, first par., Deaconess then sought interlocutory review before a single justice of the Appeals Court. The single justice denied the hospital's petition for relief, writing that determining "what is medical peer review committee material ... is something best accomplished in an in-camera examination." Deaconess sought review before the single justice of this court. On May 14, 1997, the single justice entered an order reserving and reporting the matter to the full court. ³

II

The medical profession has historically regulated itself through internal hospital disciplinary proceedings designed to identify and remedy instances of substandard care. See Adler, Stalking the Rogue Physician: An Analysis of the Health Care Quality Improvement Act, 28 Am. Bus. L.J. 683, 696 (1991). In the 1980s, in response to a perceived medical malpractice crisis and doubts about the efficacy of self-regulation by the medical profession, the Federal government and various State legislatures attempted to bolster medical peer review. In 1986, Congress passed the Health Care Quality Improvement Act (HCQIA), 42 U.S.C. §§ 11101-11152 (1994), which required hospitals to consult a national data bank of physicians when considering granting a doctor staff privileges, 42 U.S.C. § 11135(a)(1), and to inform the data bank when a doctor's privileges were suspended. ⁴ The HCQIA made records reported to the Federal data bank confidential, 42 U.S.C. § 11137(b), and granted immunity to participants in the peer review process. 42 U.S.C. § 11111(a)(1) (providing that professional review bodies and persons participating therein "shall not be liable in damages under any law of the United States or of any State with respect to the action," except the Federal Civil Rights Act).

The HCQIA made confidential only those documents actually submitted to the national data bank. As there is no claim under the Federal statute, the matter must be resolved under State law. Although Massachusetts provided no common law privilege for materials submitted to or produced by a medical peer review committee, see Cronin v. Strayer, 392 Mass. 525, 467 N.E.2d 143 (1984), in 1986 the Legislature enacted St.1986, c. 351 (Chapter 351), to provide a measure of confidentiality to the work of medical peer review committees. Chapter 351, § 9, requires, as a condition of licensure, that hospitals participate in "risk management programs" to review past performance and prevent future harm to patients. See G.L. c. 111, § 203 (d ). To promote candor and confidentiality in the review process, the statute provides that:

"[T]he proceedings, reports and records of a medical peer review committee shall be confidential and shall not be subject to subpoena or discovery, or introduced into evidence, in any judicial or administrative proceeding...." G.L. c. 111, § 204(a ).

Today, almost every State has enacted a similar statutory privilege to protect the work of medical peer review committees. See Comment, The Medical Review Committee Privilege: A Jurisdictional Survey, 67 N.C. L.Rev. 179, 179 (1988).

Pursuant to Chapter 351, the board of registration in medicine promulgated regulations, effective July 24, 1987, establishing guidelines for a qualified patient care assessment program (QPCAP) to be implemented by hospitals. See 243 Code Mass. Regs. § 3.02 (1987). Incident reporting is one of the core components of the board's QPCAP regulations. See 243 Code Mass. Regs. §§ 3.07 and 3.08 (1987). Hospitals must establish internal procedures for reporting "injuries and incidents" to their patient care assessment coordinator in order to trigger the peer review process, 243 Code Mass. Regs. § 3.07(3)(a), and a system for reporting "major incidents" directly to the board. 243 Code Mass. Regs. § 3.08. In addition, the regulations state that "information and records both generated pursuant to [the regulations] and which relate to the functions of a 'Medical Peer Review Committee' (as defined by M.G.L. c. 111, § 1), are ... deemed confidential." 243 Code Mass. Regs. 3.04(1) (1987). In 1987, this court upheld these incident reporting regulations in Beth Israel Hosp. Ass'n v. Board of Registration in Medicine, 401 Mass. 172, 177-178, 515 N.E.2d 574 (1987). Regarding both internal and "major" incident reporting we stated that "the board's determination that the ... reporting required by the regulation is a necessary component of the QPCAP ... is reasonable" (emphasis added). Id. at 177, 515 N.E.2d 574. See id. at 178, 515 N.E.2d 574. The Beth Israel Hosp. Ass'n case then held that the board could not invade § 204(a )'s privilege for "proceedings, reports and records" by requiring hospitals to permit the board to "access and audit" QPCAP information and records. See id. at 179-181, 515 N.E.2d 574 (limiting 243 Code Mass. Regs. § 3.07[k] ). The court noted, however, that:

"Board access to all other information generated by the QPCAP system in no way would violate the PRC [peer review committee] privilege and is within the board's authority ... Thus, the hospitals should make available to the board all incident reports, patient complaints, employee training materials, credentialing items, Patient Care Assessment Coordinator reports, and other items they are charged with generating.... It is only where the board seeks PRC 'proceedings, reports and records' that § 204's PRC privilege stands in the way. Section 204 promotes the uninhibited expression of professional opinions before a PRC and protects the PRC's work product. Section 204 does not protect information generated by other components of the QPCAP system or the 'raw materials' relied on by a PRC if obtained from other sources." (Emphasis added. Footnote omitted.)

Id. at 183, 515...