Cawthorn v. Catholic Health Initiatives Iowa Corp.

• Citation: 806 N.W.2d 282
• Decision Date: 02 December 2011
• Docket Number: No. 10–1013.,10–1013.
• Parties: Dennis L. CAWTHORN, Appellant, v. CATHOLIC HEALTH INITIATIVES IOWA CORP. d/b/a Mercy Hospital Medical Center, a corporation, Appellee.
• Court: United States State Supreme Court of Iowa

806 N.W.2d 282

Dennis L. CAWTHORN, Appellant,

v.CATHOLIC HEALTH INITIATIVES IOWA CORP. d/b/a Mercy Hospital Medical Center, a corporation, Appellee.

No. 10–1013.

Supreme Court of Iowa.

Dec. 2, 2011.

Gary R. Fischer of Simpson, Jensen, Abels, Fischer & Bouslog, P.C., Des Moines, and Verle W. Norris, Corydon, for appellant.

Thomas A. Finley, John (Jack) D. Hilmes, and Eric G. Hoch of Finley, Alt, Smith, Scharnberg, Craig, Hilmes & Gaffney, P.C., Des Moines, for appellee.

MANSFIELD, Justice.

This case comes before us for the second time. We must determine whether a hospital that previously produced a physician's credentialing file and relied on that file at trial may object to the use of those documents following our reversal and remand for retrial. We conclude the law of the case did not bar the hospital from changing course because our earlier opinion did not expressly or impliedly decide the admissibility of the credentialing file. We also find that Iowa Code section 147.135(2) (2009) sets forth not only a privilege, but also a separate rule of inadmissibility, so principles of waiver that might be applicable in other contexts do not govern here.

For these reasons, we find that neither law of the case nor waiver foreclosed the hospital and the district court from revisiting the admissibility of the credentialing file. Hence, we affirm the district court's order granting summary judgment to the hospital.

I. Background Facts and Proceedings.

Dr. Daniel Miulli performed two back surgeries on Dennis Cawthorn in May 2000. After Cawthorn suffered complications from those surgeries, he filed suit in May 2002 against Dr. Miulli, Catholic Health Initiatives Iowa Corp. d/b/a Mercy Hospital Medical Center (Mercy), and several other defendants. Cawthorn's petition set forth claims of medical malpractice against Dr. Miulli and negligent credentialing against Mercy. In particular, Cawthorn alleged Mercy failed to investigate Miulli's qualifications properly, negligently extended surgical privileges to Miulli, and allowed Miulli to continue to perform surgeries after having reason to know that extensive questions had been raised and existed concerning the appropriateness of some of the surgeries and procedures he was performing.

On February 2, 2004, Cawthorn served a request for production on Mercy for “a complete copy of Dr. Miulli's credential file.” On March 31, 2004, Mercy responded:

This Request is objected to because it requires the production of documents which are subject to the “peer review” privilege in Iowa Code § 147.135. Without waiving said objection, this defendant affirmatively states that it is named as a co-defendant with Defendant Dr. Miulli in another case—Polk County No. C.L. 87281 [the Christy case] involving similar allegations against this Defendant re: negligent credentialing/supervision. Similar discovery was requested and resisted. The Honorable Richard G. Blane entered his Order Compelling Discovery dated May 22, 2003. This Defendant filed its “Compliance Report” (and privilege log) and furnished the documents from Dr. Miulli's credential file and other requested information which Judge Blane found were non-privileged. The Order, Compliance Report/privilege log and documents are being provided.¹

Thus, consistent with Judge Blane's order in the Christy case, Mercy produced almost the entire contents of Dr. Miulli's credentialing file in this case. A stipulated protective order had been entered a few days before, providing that all documents produced by Mercy to Cawthorn “shall ... not ... be used in any manner or fashion outside the context of this present litigation” and would be destroyed upon termination of the case.

On April 20, 2004, Mercy moved for summary judgment. Mercy argued that Iowa does not recognize a cause of action for negligent credentialing and, alternatively, that Cawthorn had no competent evidence to support such a claim. Mercy supported its motion with a number of the documents it had previously produced relating to Dr. Miulli's credentialing. The motion was denied by Judge Blink, the trial judge then presiding over the case.

The case proceeded to trial in late June and early July 2004 before Judge Reis. At trial, Mercy objected to the admission of evidence relating to an Iowa Board of Medical Examiners (IBME) investigation and disciplinary hearing concerning Dr. Miulli. Mercy's objections were overruled and the evidence was admitted. Mercy did not object to the introduction of Dr. Miulli's credentialing file into evidence and, in fact, offered into evidence numerous documents from that file.

The jury returned a verdict in favor of Cawthorn, awarding $10,590,000 in actual damages and allocating thirty percent of the fault to Mercy and seventy percent to Dr. Miulli. The district court ordered a new trial unless Cawthorn agreed to a remittitur reducing the verdict to $1,190,000.

Both parties appealed: Cawthorn argued his claim for punitive damages should have been submitted to the jury, and Mercy argued the IBME evidence should have been excluded. In November 2007, on further review, this court affirmed the district court's refusal to submit Cawthorn's punitive damage claim, but reversed on Mercy's cross-appeal. We concluded the IBME evidence was confidential under section 272C.6(4) and should have been excluded. We remanded the case for a new trial. Cawthorn v. Catholic Health Initiatives Iowa Corp., 743 N.W.2d 525, 526 (Iowa 2007). Procedendo issued on January 22, 2008.

In May 2009, the court of appeals decided Day v. Finley Hospital, 769 N.W.2d 898, 902 (Iowa Ct.App.2009), holding that the contents of a hospital's credentialing file fell within the scope of Iowa Code section 147.135's peer review protection, to the extent those documents were in the custody of a peer review committee.

In September 2009, Mercy filed a new motion for summary judgment in this case. Relying on Day, Mercy argued the contents of Dr. Miulli's previously produced credentialing file were inadmissible under section 147.135. Without these documents, Mercy maintained that Cawthorn lacked sufficient evidence to establish a prima facie case.

Cawthorn resisted the motion, arguing it was too late for Mercy to be objecting to the admission of the credentialing documents. Cawthorn denied that Day was an intervening change in the law. Rather, he argued, “Nothing the Iowa Court of Appeals said in Day created new law that made this argument newly available.”

On January 11, 2010, the district court ² ruled on Mercy's summary judgment motion. It stated:

Defendant is not barred by the doctrines of waiver, estoppel or law of the case from asserting the peer review privilege of Iowa Code Section 147.135 to the admissibility of documents from the credentialing file that it previously produced subject to the objection pursuant to an order entered in a companion case. Day v. The Finley Hosp., 769 N.W.2d 898 (Iowa App.2009) is an intervening change or clarification of the law entered since the remand that clearly holds such peer review material is inadmissible. See Springer v. Weeks & Leo Co., Inc., 475 N.W.2d 630, 632 (Iowa 1991). The law is constantly developing. Circumstances change with the passage of time. The defendant is not bound [by] the trial strategy of the first trial in a new trial.However, the district court declined to grant summary judgment to Mercy at that point. As the court explained, “It is appropriate for the trial judge to rule on the admissibility of evidence prior to determining the sufficiency of evidence.” Thus, the court allowed Cawthorn time to gather other evidence in support of his negligent credentialing claim, including “evidence gathered by plaintiff from sources other than the credentialing file as well as plaintiff's expert testimony bearing on issues of negligence and proximate cause.”

On April 30, 2010, Mercy renewed its summary judgment motion. It argued, “Despite [the] grace period provided by the Court in which Plaintiff was to gather admissible evidence, Mercy is not aware of any further efforts by Plaintiff to obtain any evidence outside of the exhibits he previously offered into evidence at the first trial.” Cawthorn resisted the renewed motion by incorporating his earlier resistance. On May 18, 2010, the district court ³ granted Mercy's motion, reasoning as follows:

There is no doubt that the only evidence proposed by the plaintiff to prove the defendant's alleged negligence fits within the categories of evidence held inadmissible in Cawthorn and Day. While the trial court's original denial of the defendant's motion for summary judgment appears to be consistent with this conclusion [footnote omitted], it also recognizes the possibility that the plaintiff could generate some other admissible evidence to support his claim, including expert testimony. This possibility appears to be the reason the court denied the summary judgment motion. Now, as the defendant points out, discovery has closed and the plaintiff has failed to uncover or produce any other such evidence. This means that the plaintiff has failed to produce affirmative, admissible evidence that creates a fact issue as to whether the defendant was negligent. Thus, there is no possibility that the plaintiff could prevail at trial and, therefore, the defendant is entitled to summary judgment dismissing the petition.

Cawthorn appeals. He contends that under the doctrine of law of the case, Mercy was precluded from arguing the credentialing documents were inadmissible, and the district court lacked authority to exclude them. Alternatively, Cawthorn argues that Mercy waived its right to object to the admission of the credentialing documents by voluntarily producing them and offering them as evidence in the first trial.

II. Scope and Standards of Review.

The parties agree that our review of a district court's ruling on a motion for summary judgment is for errors at law. Kragnes v. City of Des Moines, 714...