Dade County Medical Ass'n v. Hlis

• Decision Date: 22 May 1979
• Docket Number: No. 79-264,79-264
• Citation: 372 So.2d 117
• Parties: DADE COUNTY MEDICAL ASSOCIATION, Petitioner, v. John HLIS and Joyce Hlis, his wife, Peninsular Fire Insurance Company, Geni- Chlor of Dade County, Inc., All Florida-Distributors, Inc., d/b/a All Florida Pool Supplies, and Fremont Indemnity Company, corporations licensed to do business in the State of Florida, Respondents.
• Court: Florida District Court of Appeals

Page 117

372 So.2d 117

DADE COUNTY MEDICAL ASSOCIATION, Petitioner, v. John HLIS and Joyce Hlis, his wife, Peninsular Fire Insurance Company, Geni- Chlor of Dade County, Inc., All Florida-Distributors, Inc., d/b/a All Florida Pool Supplies, and Fremont Indemnity Company, corporations licensed to do business in the State of Florida, Respondents.

No. 79-264.

District Court of Appeal of Florida, Third District.

May 22, 1979.

Rehearing Denied July 10, 1979.

Goodwin, Ryskamp, Welcher & Carrier and Arthur M. Simon, Miami, for petitioner.

Demos, Dougherty & Perez, Kenneth B. Sherouse, Jr., Richard M. Gale, Miami, for respondents.

Before HENDRY, HUBBART and SCHWARTZ, JJ.

SCHWARTZ, Judge.

The Dade County Medical Association (DCMA) seeks review, by petition for a writ of common law certiorari, Fla.R.App.P. 9.100, of an order which required it to produce records of its Ethics Committee concerning two physicians who are members of the Association. We grant the petition and quash the order under review.

The doctors in question were treating physicians of John Hlis who was injured in an automobile accident on July 10, 1976. Hlis and his wife sued those allegedly liable for the accident, as well as their insurance company, Peninsular Fire, in the Dade County Circuit Court. In the course of taking discovery in that case, the defendants served a subpoena duces tecum on the DCMA which called for its records custodian to produce at a deposition "any and all records" concerning the two physicians. In response, the Association produced all of the records requested except those of its Ethics Committee. The DCMA moved, pursuant to Fla.R.Civ.P. 1.310(b), for a protective order precluding discovery of those records as privileged either under Section 768.40, Florida Statutes (1977) or as a matter of public policy. The trial court denied both that motion and a subsequent motion for rehearing based on the asserted ground that the documents were "immaterial and irrelevant and not calculated to lead to the discovery of admissible evidence." The DCMA was ordered to produce the documents within five days. Before the expiration of that period, the Association petitioned this court for certiorari and for a stay of the order of production. We granted the stay; issued a rule to show cause why the petition should not be granted, Fla.R.App.P. 9.100(f); and have heard oral argument. We have concluded that the order under review constitutes a departure from the essential requirements of the law from which immediate relief is appropriate ¹ and therefore grant the petition for certiorari.

The function of the Ethics Committee of the DCMA, the records of which were ordered produced below, is to investigate, consider and discuss issues which involve the professional conduct of its member physicians. We think it self-evident that this activity, as a means of improving the quality of medical practice in our community through self-regulation, is a salutary one which should be encouraged. More to the point as to the issues presented here, we also agree with petitioner that it is important, perhaps indispensable, to the achievement of the committee's purposes that its proceedings remain confidential. It is obvious that both complaints and free discussion about the activities of physicians would be markedly discouraged if their contents were to be held open to public perusal. These considerations were largely responsible for the recent enactment of Section 768.40, Florida Statutes (1977), which provides in pertinent part:

"(1) As used in this section, the term 'medical review committee' or 'committee' shall mean A committee of a state or Local professional society of health care providers or of a medical staff of a licensed hospital or nursing home . . . which (committee) is formed to evaluate and improve the quality of health care rendered by providers of health service or to determine that health services rendered were professionally indicated or were performed in compliance with the applicable standard of care or that the cost of health care rendered was considered reasonable by the providers of professional health services in the area."

"(4) The proceedings and records of committees as described in the preceding subsections Shall not be subject to discovery or introduction into evidence in any civil action against a provider of professional health services arising out of the matters which are the subject of evaluation and review by such committee, . . . " (emphasis supplied)

Although the DCMA Ethics Committee undoubtedly qualifies as a "medical review committee" under § 768.40(1), see Feminist Women's Health Center v. Mohammad, 415 F.Supp. 1258 (N.D.Fla.1976), we cannot hold its records are privileged from discovery under § 768.40(4), which provides that the privilege exists only "in (a) civil action against a provider of professional health services . . . " Since the action below was simply one for damages against those who negligently caused an auto accident, no amount of judicial interpretation can render the statute applicable to this case. Cf. Good Samaritan Hospital v. Simon, 370 So.2d 1174 (Fla. 4th DCA 1979).

The non-applicability of the statutory privilege does not mean, however, that we may or should ignore the considerations of public policy which informed the enactment of the statute and of which we have spoken. ² Even without a pertinent statute several cases have held that records of bodies similar to the Ethics Committee are not subject to discovery. The leading such authority is Bredice v. Doctors Hospital, Inc., 50 F.R.D. 249 (D.D.C.1970), adhered to, 51 F.R.D. 187 (D.D.C.1970), affd., 156 U.S.App.D.C. 199, 479 F.2d 920 (1973). At 50 F.R.D. 250, 251, the court held:

"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 quo non of adequate hospital care. To subject these discussions and deliberations to the discovery process, without a showing of exceptional necessity, would result in terminating such deliberations. 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.

The purpose of these staff meetings is the improvement, through self-analysis, of the efficiency of medical procedures and techniques. They are not a part of current patient care but are in the nature of a retrospective review of the effectiveness of certain medical procedures. The value of these discussions and reviews in the education of the doctors who participate, and the medical students who sit in, is undeniable. This value would be destroyed if the meetings and the names of those participating were to be opened to the discovery process.

'The public interest may be a reason for not permitting inquiry into particular matters by discovery.' 4 Moore, Federal Practice P 26.22(2) at 1287 (2d ed. 1969). As doctors have a responsibility for life and death decisions, the most up-to-date information and techniques must be available to them. There is an overwhelming public interest in having those staff meetings held on a confidential basis so that the flow of ideas and advice can continue unimpeded. Absent evidence of extraordinary circumstances, there is no cause shown requiring disclosure of the minutes of these meetings."

See also Franklin v. Blank, 86 N.M. 585, 525 P.2d 945 (1974); Oviatt v. Archbishop Bergan Mercy Hospital, 191 Neb. 224, 214 N.W.2d 490 (1974); Gillman v. United States, 53 F.R.D. 316 (S.D.N.Y.1971); Annot., Discovery of Hospital's Internal Records, 81 A.L.R.3d 944 (1977); cf. Banks v. Lockheed- Georgia Co., 53 F.R.D. 283, 285 (N.D.Ga.1971). Very significantly, this court has cited with approval and followed the Bredice case in Carter v. Metropolitan Dade County, 253 So.2d 920 (Fla. 3d DCA 1971). We again endorse the views expressed in that opinion.

In opposition to these significant considerations which would preclude discovery, those who seek it have made virtually no showing at all. The defendants in Hlis' personal injury action, who are the only real parties respondent in interest, ³ contend in this court that the DCMA documents are pertinent to their affirmative defense that the plaintiff's injuries are due in whole or in part to the "acts of negligence of others not a party to this cause," presumably the doctors whose records are now at issue. But since the defendants are responsible as a matter of law even for an aggravation of the plaintiff's initial injuries caused by his doctors' malpractice, this evidence would be neither admissible nor likely to lead to the discovery of relevant evidence in the proceeding below. Stuart v. Hertz Corp., 351 So.2d 703, 707 (Fla.1977); J. Ray Arnold Corp. v. Richardson, 105 Fla. 204, 141 So. 133 (1932). ⁴

It is true, as the defendant-respondents argue, that, in the ordinary case, a non-party who challenges discovery may not contend that the materials sought are not relevant to the...