Coburn v. Seda

• Decision Date: 23 February 1984
• Docket Number: No. 49549-1,49549-1
• Citation: 677 P.2d 173,101 Wn.2d 270
• Parties: Angeline A. COBURN, individually and as Administrator of the Estate of Denny L. Coburn, Deceased, for the benefit of Bonnie Chambers, Cammy Coburn and Brandy Coburn, all children of the deceased, Respondents, v. Peter SEDA and Jane Doe Seda, husband and wife, Defendants, and Kadlec Hospital, Petitioner.
• Court: Washington Supreme Court

Page 270

101 Wn.2d 270

677 P.2d 173

Angeline A. COBURN, individually and as Administrator of the Estate of Denny L. Coburn, Deceased, for the benefit of Bonnie Chambers, Cammy Coburn and Brandy Coburn, all children of the deceased, Respondents, v. Peter SEDA and Jane Doe Seda, husband and wife, Defendants and Kadlec Hospital, Petitioner.

No. 49549-1.

Supreme Court of Washington En Banc.

Feb. 23, 1984.

Roberts & Shefelman, Lee Voorhees, Edwin D. Rauzi, Paul Ahern, Seattle, for petitioner.

John Sullivan, Richland, for respondents.

UTTER, Justice.

Petitioner Kadlec Hospital challenges a trial court order to answer an interrogatory and produce records of a hospital committee, asserting that the requested information is immune from discovery under RCW 4.24.250 and the common law. We hold RCW 4.24.250 applies to this medical malpractice action and affords an immunity from discovery to the written records, proceedings, and reports of hospital committees which review the quality of patient care.

Respondents, Angeline Coburn and her children, brought this medical malpractice action against Dr. Peter Seda and Kadlec Hospital following the death of Denny Coburn. Mr. Coburn died during a heart catheterization procedure performed by Dr. Seda at Kadlec Hospital.

As part of discovery, respondents propounded an interrogatory and request for production seeking information about a hospital review committee. The interrogatory, request for production, and the responses of appellant were as follows:

28. Does the hospital have a review committee that reviews the quality of patient care? If so, state:

(a) The name of the committee.

(b) The names and addresses of the members of the committee.

(c) Did the committee review the incident which is the subject of this lawsuit?

(d) If so, where and when and who was present?

(e) Was a written report prepared by the committee concerning the incident?

ANSWER: Defendant objects to this inquiry for the reason that any in-hospital reviews of quality of patient care are privileged and confidential and are protected by common law privilege ( see State ex rel. Haugland v. Smythe, 25 Wash.2d 161, 169 P.2d 706) as well as by statutory privilege, see RCW 4.24.250. See also Bredice v. Doctor's Hospital, Inc., 50 F.R.D. 249 (D.D.C.1970).

Request for Production No. 9. Produce the written report identified in your answer to the foregoing interrogatory and the minutes of the committee meeting.

N/A

Following petitioner's refusal to divulge the requested information, respondents brought a motion to compel Kadlec Hospital to answer the interrogatory and produce the written report. The trial judge granted this motion, ruling that no statutory or common law privilege applied. The trial judge found RCW 4.24.250 applied only to actions brought by one health care provider against another, not to medical malpractice actions. The plain language of the statute compels us to rule otherwise.

I.

RCW 4.24.250 provides:

Any health care provider as defined in RCW 7.70.020(1) and (2) as now existing or hereafter amended who, in good faith, files charges or presents evidence against another member of their profession based on the claimed incompetency or gross misconduct of such person before a regularly constituted review committee or board of a professional society or hospital whose duty it is to evaluate the competency and qualifications of members of the profession, including limiting the extent of practice of such person in a hospital or similar institution, or before a regularly constituted committee or board of a hospital whose duty it is to review and evaluate the quality of patient care, shall be immune from civil action for damages arising out of such activities. The proceedings, reports, and written records of such committees or boards, or of a member, employee, staff person, or investigator of such a committee or board, shall not be subject to subpoena or discovery proceedings in any civil action, except actions arising out of the recommendations of such committees or boards involving the restriction or revocation of the clinical or staff privileges of a health care provider as defined above.

The statute, on its face, prohibits discovery of certain records in "any civil action" with a single exception: actions arising out of committee recommendations which involve restriction or revocation of staff privileges. In construing this statute, we give the word "any" its ordinary and usual meaning. See John H. Sellen Constr. Co. v. Department of Revenue, 87 Wash.2d 878, 882, 558 P.2d 1342 (1976). Thus, all civil actions not falling within the specific exception are subject to the statutory provision shielding certain information from discovery. The discovery prohibition therefore applies to medical malpractice actions.

II.

What is the nature of the statutory protection granted the proceedings, reports and written records of quality review committees? A matter may be nondiscoverable either because it is subject to an immunity from discovery or a privilege. Courts often use the terms "privilege" and "immunity" interchangeably, hence the definitional distinction between the two is somewhat muddy. Cf. 8 C. Wright & A. Miller, Federal Practice § 2025, at 211-12 (1970). Despite this lack of clarity, it appears that immunity is a subset of privilege. An immunity may make a matter nondiscoverable but does not control its potential admissibility at trial. In contrast, privilege is a rule of evidence expressly incorporated into the rules of discovery. CR 26(b)(1). See United States v. Reynolds, 345 U.S. 1, 6, 73 S.Ct. 528, 531, 97 L.Ed. 727, 32 A.L.R.2d 382 (1953). A matter which is privileged is both nondiscoverable and inadmissible.

Discovery immunities and evidentiary privileges may differ in underlying rationale. One such difference is exemplified by comparing the work product doctrine and the attorney-client privilege. The work product doctrine grants an immunity from discovery to an attorney's work product, permitting attorneys to work with a certain degree of privacy and plan strategy without undue interference. Hickman v. Taylor, 329 U.S. 495, 510-11, 67 S.Ct. 385, 393-394, 91 L.Ed. 451 (1947). In contrast, the attorney-client privilege protects evidence from public disclosure so that clients will not hesitate to speak freely and fully inform their attorneys of all relevant facts. See E. Cleary, McCormick on Evidence § 87 (2d ed. 1972); Gardner, Agency Problems in the Law of Attorney-Client Privilege: Privilege & "Work Product" Under Open Discovery (Part II), 42 U.Det.L.J. 253, 290 (1965). Like most privileges, the attorney-client privilege has its basis in the confidential nature of the communication and seeks to foster a relationship deemed socially desirable. See generally 8 J. Wigmore, Evidence § 2285 at 531 (3d ed. 1940) quoted in State ex rel. Haugland v. Smythe, 25 Wash.2d 161, 168, 169 P.2d 706 (1946) (Wigmore's four fundamental conditions necessary to the establishment of a privilege.)

Policies favoring both discovery immunities and evidentiary privileges underlie RCW 4.24.250. The discovery protection granted hospital quality review committee records, like work product immunity, prevents the opposing party from taking advantage of a hospital's careful self-assessment. The opposing party must utilize his or her own experts to evaluate the facts underlying the incident which is the subject of suit and also use them to determine whether the hospital's care comported with proper quality standards.

The discovery prohibition, like an evidentiary privilege, also seeks to protect certain communications and encourage the quality review process. Statutes bearing similarities to RCW 4.24.250 prohibit discovery of records on the theory that external access to committee investigations stifles candor and inhibits constructive criticism thought necessary to effective quality review. ¹ Courts determining that hospital quality review records should be subject to a common law privilege have advanced this same rationale. ² As the court stated in Bredice v. Doctors Hosp., Inc., 50 F.R.D. 249, 250 (D.D.C.1970), aff'd, 479 F.2d 920 (D.C.Cir.1973):

Confidentiality is essential to effective functioning of these staff meetings; and these meetings are essential to the continued improvement in the care and treatment of patients. Candid and conscientious evaluation of clinical practices is a sine qua non of adequate hospital care.... Constructive professional criticism cannot occur in an atmosphere of apprehension that one doctor's suggestion will be used as a denunciation of a colleague's conduct in a malpractice suit.

Although RCW 4.24.250 reflects policies supporting both discovery immunities and evidentiary privileges, it is not clear that the statute grants a full evidentiary privilege. Cf. State v. Thompson, 54 Wash.2d 100, 104-07, 338 P.2d 319 (1959); State ex rel. Haugland v. Smythe, supra; Cook v. King Cty., 9 Wash.App. 50, 52, 510 P.2d 659 (1973); Mebust v. Mayco Mfg. Co., 8 Wash.App. 359, 360-63, 506 P.2d 326 (1973). Moreover, in the context of this case, such an interpretation is unnecessary. Respondent's request for disclosure arose in the context of discovery, therefore we need only determine the propriety of discovery.

RCW 4.24.250 does grant an immunity from discovery to the reports, records, and proceedings of hospital quality review boards. This holding is in accord with the approach taken by the court in Matchett v. Superior Court, 40 Cal.App.3d 623, 115 Cal.Rptr. 317 (1974). The court there interpreted Cal.Evid.Code § 1157, a statute substantially similar to RCW 4.24.250. The court found the statute granted immunity from discovery to medical staff committee records, stating:

Literally, section 1157 establishes an immunity from discovery but not an evidentiary privilege in the sense that medical staff records are excluded from evidence.... Because discoverability is our only concern, we...