Commissioner of Health Services v. Kadish

• Decision Date: 07 March 1989
• Docket Number: No. 6539,6539
• Citation: 17 Conn.App. 577,554 A.2d 1097
• Court: Connecticut Court of Appeals
• Parties: COMMISSIONER OF HEALTH SERVICES v. Harold KADISH.

Page 1097

554 A.2d 1097

17 Conn.App. 577

COMMISSIONER OF HEALTH SERVICES v. Harold KADISH.

No. 6539.

Appellate Court of Connecticut.

Argued Nov. 2, 1988.

Released March 7, 1989.

Andrea B. Gaines, Asst. Atty. Gen., with whom, on the brief, were Joseph I. Lieberman, Atty. Gen., and Richard J. Lynch, Asst. Atty. Gen., for appellant (plaintiff).

R. Bartley Halloran, with whom, on the brief, was Salvatore Bonanno, Hartford, for appellee (defendant).

Before BORDEN, EDWARD Y. O'CONNELL and STOUGHTON, JJ.

BORDEN, Judge.

The sole question of this appeal is whether the record of a medical peer review proceeding is statutorily immune from production in an investigation of a health care professional by the department of health services. The plaintiff commissioner appeals from the judgment of the trial court granting a motion to quash a subpoena duces tecum served on the defendant, the chairperson of the Tolland County Dental Society peer review committee. ¹ The trial court held that the record of the committee's proceedings are shielded from production by General Statutes § 38-19a(d). We find error.

The record discloses the following facts. The plaintiff, under authority of investigatory powers granted the department of health services, ² was investigating a licensed dentist, Arthur Fitzgerald, for possible violations of his license to practice, arising out of his treatment of a particular patient. The committee had conducted a peer review of Fitzgerald's treatment of that patient. Pursuant to his authority under General Statutes § 19a-14(a)(10), the plaintiff issued a subpoena duces tecum to the defendant in his capacity as chairperson of the committee, seeking the records of the committee's review of that treatment. The defendant failed to appear and produce the records, and the plaintiff petitioned the trial court for enforcement. The defendant then moved to quash the subpoena, and the court granted the defendant's motion to quash. This appeal followed.

The plaintiff's argument, which we find dispositive, is that the trial court erred in holding that General Statutes § 38-19a(d) ³ prevents the plaintiff from discovery of the committee's records of its peer review of Fitzgerald. The defendant argues, and the trial court agreed, ⁴ that the peer review proceedings are immune from discovery by virtue of General Statutes § 38-19a(d). We disagree.

General Statutes § 38-19a(d) provides that peer review proceedings conducted by a medical review committee are not "subject to discovery or introduction into evidence in any civil action for or against a health care provider...." (Emphasis added.) Whether a statutory proceeding is a civil action depends on the purpose for which the legislature created the proceeding and the most efficacious way to carry out that purpose. Fishman v. Middlesex Mutual Assurance Co., 4 Conn.App. 339, 344, 494 A.2d 606, cert. denied, 197 Conn. 806, 499 A.2d 57 (1985). Even those statutory proceedings that have been held to be civil actions in other contexts; see, e.g., Carbone v. Zoning Board of Appeals, 126 Conn. 602, 604-607, 13 A.2d 462 (1940); were proceedings in court and not, as here, purely administrative investigatory proceedings. See also Practice Book § 255 (administrative appeals to Superior Court are civil actions for purposes of rules of practice, but not for purposes of certain statutes). We agree with the well reasoned decision of the Superior Court, in another case, that an investigation by the commissioner of health services is not a "civil action" within the meaning of General Statutes § 38-19a(d). See Commissioner v. William W. Backus Hospital, 40 Conn.Sup. 188, 190, 485 A.2d 937 (1984) (M. Hennessey, J.).

We are unpersuaded by the dissent's reliance on Morse v. Gerity, 520 F.Supp. 470 (D.C.Conn.1981), because that was a medical malpractice action--clearly a "civil action"--in which the issue was whether the statutory privilege covered peer review proceedings unrelated to the subject matter of the case before the court. Id. at 471. It did not address the issue of whether an administrative investigatory proceeding is a "civil action" within the meaning of the statute.

Indeed, the dissent's policy argument proves too much, because General Statutes § 38-19a(d) does not create an absolute privilege; the statute itself carves out limits and exceptions where peer review proceedings are disclosable. The statutory privilege is limited to "any civil action for or against a health care provider...." (Emphasis added.) General Statutes § 38-19a(d). Thus, even in the context of a civil action between other parties, peer review proceedings, if otherwise relevant, are not shielded; and peer review proceedings are not shielded "in any health provider proceedings concerning the termination or restriction of staff privileges...." General Statutes § 38-19a(d)(3). Furthermore, we fail to see how, as the dissent suggests, the meaning of "civil action" as used in the statute differs when it is applied to a dentist, as opposed to a physician.

Finally, the dissent's reliance on the purported exercise of discretion by the trial court simply mischaracterizes how the case was tried and decided in the trial court. See footnote 4, supra. The trial court did not nor was it asked to exercise any such discretion.

There is error, the judgment is set aside and the case is remanded with direction to render judgment denying the motion to quash and ordering enforcement of the subpoena duces tecum.

In this opinion STOUGHTON, J., concurred.

EDWARD Y. O'CONNELL, Judge, dissenting.

I disagree with the decision of the majority and would find no error.

Peer review statutes are intended to encourage frank, uninhibited discussion, debate and criticism by the peers of a health care provider with projected goals of, inter alia, continuing professional education, evaluation of the quality of patient care, renewal of privileges, complaint investigation and malpractice review. ¹ The peer review committee's proceedings are designed to be free from the chilling concern that they would become public and expose its members to the involvement of civil litigation and the glare of public attention.

"[A]lthough the privilege is not absolute, the legislative history and judicial decisions in other jurisdictions with similar statutes, although sparse, support a liberal interpretation both as a matter of statutory construction and public policy. See, e.g., Scott v. McDonald, 70 F.R.D. 568 (N.D.Ga.1976); Eubanks v. Ferrier, 245 Ga. 763, 267 S.E.2d 230, 232 (1980); Young v. Gersten, 56 Ohio Misc. 1, 381 N.E.2d 353 (Ohio C.P. Franklin County, 1978). Indeed, if the purpose of the statute is to encourage doctors to evaluate their peers without fear of disclosure, that purpose would be hampered by public release of any proceedings y(4)27 The danger of inhibiting candid professional peer review exists by the mere potential for disclosure. Any possibility that proceedings might be discoverable at a future date ... presents a risk that a doctor will be reluctant to provide the meaningful peer review contemplated by the statute. The overriding importance of these review committees to the medical profession and the public requires that doctors have unfettered freedom to evaluate their peers in an atmosphere of complete confidentiality. No chilling effect can be tolerated if the committees are to function effectively." Morse v. Gerity, 520 F.Supp. 470, 472 (D.C.Conn.1981).

In enforcing the plaintiff's subpoena, the majority's reliance on Commissioner v. William W. Backus Hospital, 40 Conn.Sup. 188, 485 A.2d 937 (1984), is misplaced. That case involved an investigation of a physician, whereas, here, we are concerned with the investigation of a dentist. This seemingly unimportant distinction takes on great significance when General Statutes §§ 38-19a(d), 1-19(a) and 19a-14(d) ² are considered in conjunction with each other. Statutes are to be read together to form one consistent body of law. McKinley v. Musshorn, 185 Conn. 616, 623, 441 A.2d 600 (1981); Budkofsky v. Commissioner of Motor Vehicles, 177 Conn. 588, 592, 419 A.2d 333 (1979). The effect of these three statutes when read together is that records of all health department investigations become public one year after their initiation, except those of physicians which appear to remain immune from disclosure in perpetuity. Thus, the members of the Backus medical peer review committee were not confronted with the eventual public disclosure of their deliberations. ³ Lacking the benefit of such a perpetual privacy shield, it is clear that dental peer review proceedings implicate considerations quite distinct from those of their medical review counterpart.

Determination of the issue now before the court on a technical definition of civil action emasculates the peer review statute. When interpreting a statute, the court should look beyond the literal meaning of its words to its history, the circumstances surrounding its enactment, the mischief it was designed to remedy and the policy underlying it. Board of Education v. Board of Labor Relations, 201 Conn. 685, 690, 519 A.2d 41 (1986). The majority's narrow definition of civil action construes it in isolation from the scheme and purpose of the peer review program.

The position of the majority produces an anomalous result. It permits the dental peer review committee's deliberation and records eventually to become public after subpoena by the health commissioner. At this point, the cat is out of the bag, so to speak. In a later civil action, however, § 38-19a(d) would preclude this information from being introduced into evidence and committee members would be prohibited from testifying as to the content of the committee proceedings. Statutes are not to be interpreted so as to produce a bizarre or unusual result. State v. Scott, 11 Conn.App. 102, 119, 525 A.2d 1364, cert. denied, 204 Conn. 811, 528 A.2d 1157 (1987); Shelby...