Ex parte Qureshi

• Decision Date: 07 April 2000
• Parties: Ex parte Dr. F.H. QURESHI and Central Alabama Orthopedic. Ex parte Vaughan Regional Medical Center, Inc. and Ex parte Stacy Larrimore. (Re Stacy Larrimore v. Vaughan Regional Medical Center, Inc., et al.)
• Court: Alabama Supreme Court

768 So.2d 374

Ex parte Dr. F.H. QURESHI and Central Alabama Orthopedic.

Ex parte Vaughan Regional Medical Center, Inc. and

Ex parte Stacy Larrimore.

(Re Stacy Larrimore v. Vaughan Regional Medical Center, Inc., et al.)

1979.

Supreme Court of Alabama.

April 7, 2000.

William S. Haynes and Rachel Sanders-Cochran of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for Dr. F.H. Qureshi and Central Alabama Orthopedic.

Walter W. Bates and Scott M. Salter of Starnes & Atchison, L.L.P., Birmingham, for Vaughan Regional Medical Center, Inc.

Vernon L. Wells II and N. Christian Glenos of Walston, Wells, Anderson & Baines, L.L.P., Birmingham, for Stacy Larrimore.

Joseph C. Espy III and James E. Williams, of Melton, Espy, Williams & Hayes, P.C., Montgomery; and Gregg Brantley Everett, general counsel, Alabama Hospital Ass'n, for amicus curiae Alabama Hospital Association.

BROWN, Justice.

The question presented by these petitions for the writ of mandamus is whether certain records of Vaughan Regional Medical Center, Inc. ("Vaughan Regional"), relating to a staff physician are privileged under state law and, therefore, not subject to discovery. The trial judge held that some of the records were discoverable, but that some of them were not discoverable because, he said, the discovery request was "overly broad." To the extent that the trial court ordered that the records were discoverable, we conclude that he erred. Therefore, we grant the petitions of Dr. F.H. Qureshi, Central Alabama Orthopedic, and Vaughan Regional for a writ of mandamus directing the trial judge to vacate his orders compelling discovery.

Stacy Larrimore sued Dr. Qureshi and Central Alabama Orthopedic, alleging medical malpractice on the part of Dr. Qureshi. Specifically, Larrimore alleged that Dr. Qureshi had breached the applicable standard of care by improperly setting her broken left ankle and by failing to adequately and properly render postsurgical treatment regarding her broken ankle. Larrimore also sued Vaughan Regional, alleging that it had failed to render adequate postoperative care to her and that it had negligently or wantonly permitted Dr. Qureshi to perform the kind of procedures and treatments he had utilized on her. Additionally, Larrimore alleged that Vaughan Regional had been negligent in hiring and credentialing Dr. Qureshi.

On January 21, 1998, Larrimore issued a notice of deposition to Vaughan Regional. The notice sought, pursuant to Rule 30(b)(6), Ala.R.Civ.P., to have a representative of Vaughan Regional testify regarding several subjects, including Dr. Qureshi's qualifications, training, education, and board certification in the field of orthopedic surgery. The notice further sought any investigations or evaluations of Dr. Qureshi and his qualifications, training, education, and board certification in the field of orthopedic surgery conducted or received by Vaughan Regional before Dr. Qureshi was granted staff privileges. In addition, pursuant to Rule 30(b)(5), Ala. R.Civ.P., the notice asked that Vaughan Regional produce certain documents at this deposition, including the following:

"3. All documents which evidence, or relate or pertain in any way to, the business or contractual relationship between Vaughan Regional Medical Center, Inc., and Dr. F.H. Qureshi, including, without limitation, the following:

". . . .

"h. documents evidencing, or pertaining in any way to, any investigations or evaluations of Dr. Qureshi and his qualifications, training, education and board certification in the field of orthopaedic surgery conducted or received by VRMC before it entered into a contractual relationship with Dr. Qureshi;

"i. documents evidencing, or pertaining in any way to, Dr. Qureshi's qualifications, training, education and board certification in the field of orthopaedic surgery;

"j. correspondence between VRMC and the American Board of Orthopaedic Surgeons, and/or documents received by VRMC from the American Board of Orthopaedic Surgeons, pertaining in any way to Dr. Qureshi; and

"k. correspondence between VRMC and any other institution or hospital, or documents received by any other institution or hospital, where Dr. Qureshi has practiced medicine or received training, pertaining in any way to Dr. Qureshi."

Vaughan Regional filed an objection to producing documents that would be responsive to Request 3(h)-(k), claiming that the documents encompassed by that request were privileged, pursuant to § 22-21-8, Ala.Code 1975. Thereafter, Larrimore filed a motion to compel Vaughan Regional to comply with a discovery order the trial court had entered on September 10, 1997. On June 22, 1998, Vaughan Regional filed a response to Larrimore's motion to compel. Included as part of that response was the affidavit of Dr. Lotfi Bashir,¹ who was then serving as chairman of Vaughan Regional's credentialing committee. In the affidavit, Dr. Bashir stated that the documents that would be responsive to Request 3(h)-(k) were maintained as part of Vaughan Regional's credentialing file on Dr. Qureshi. Dr. Bashir further stated that it was essential that the materials gathered by the hospital be kept confidential, so as to ensure that physicians applying for hospital staff privileges would provide complete and accurate information about their qualifications. Moreover, Dr. Bashir stated, if the information did not remain confidential then "physicians and health care institutions from whom materials are requested in the credentialing process would be less inclined to provide frank and open criticisms of physician applicants where warranted."

On July 9, 1998, the trial judge entered an order on Larrimore's motion to compel, stating in pertinent part:

"The Court finds that the motion to compel is due to be and the same is hereby granted as to items i., j., and k. It appears that all of those documents would have been furnished to the Defendant from outside sources or are otherwise discoverable. This Court finds that request 3.(h) is overly broad. The Plaintiff is entitled to documents received from outside sources including documents received from the Defendant, Dr. Qureshi. The Plaintiff is not entitled to documents created by the Defendant, Vaughan Regional Medical Center in its evaluation or credentialing process."

Vaughan Regional then moved for a protective order holding that the documents referenced in the court's July 9, 1998, order did not have to be produced. See Ex parte Reynolds Metals Co., 710 So.2d 897 (Ala.1998). On September 10, 1998, the trial court denied Vaughan Regional's request for a protective order.

On October 22, 1998, Vaughan Regional petitioned for the writ of mandamus, asking this Court to hold the documents sought by Request 3(i)-(k) privileged under § 22-21-8, Ala.Code 1975. On October 23, 1998, Dr. Qureshi and Central Alabama Orthopedic filed their own petition for the writ of mandamus, seeking similar relief. On December 7, 1998, Stacy Larrimore filed a response in opposition to these two petitions. Additionally, Larrimore filed what has been docketed as a cross-petition for the writ of mandamus, asking this Court to hold that Request 3(h) was not overly broad and to order the trial court to direct Vaughan Regional to produce all documents responsive to that request.

At issue in the instant cases is the meaning of § 22-21-8, Ala.Code 1975. This section, entitled "Confidentiality of accreditation, quality assurance credentialing materials, etc.," states:

"(a) Accreditation, quality assurance and similar materials as used in this section shall include written reports, records, correspondence, and materials concerning the accreditation or quality assurance or similar function of any hospital, clinic, or medical staff. The confidentiality established by this section shall apply to materials prepared by an employee, advisor, or consultant of a hospital, clinic, or medical staff and to materials prepared by an employee, advisor or consultant of an accrediting, quality assurance or similar agency or similar body and to any individual who is an employee, advisor or consultant of a hospital, clinic, medical staff or accrediting, quality assurance or similar agency or body.

"(b) All accreditation, quality assurance credentialing and similar materials shall be held in confidence and shall not be subject to discovery or introduction in evidence in any civil action against a health care professional or institution arising out of matters which are the subject of evaluation and review for accreditation, quality assurance and similar functions, purposes, or activities. No person involved in preparation, evaluation or review of accreditation, quality assurance or similar materials shall be permitted or required to testify in any civil action as to any evidence or other matters produced or presented during the course of preparation, evaluation, or review of such materials or as to any finding, recommendation, evaluation, opinion, or other action of such accreditation, quality assurance or similar function or other person involved therein. Information, documents, or records otherwise available from original sources are not to be construed as being unavailable for discovery or for use in any civil action merely because they were presented or used in preparation of accreditation, quality assurance or similar materials nor should any person involved in preparation, evaluation, or review of such materials be prevented from testifying as to matters within his knowledge, but the witness testifying should not be asked about any opinions or data given by him in preparation, evaluation, or review of accreditation, quality assurance or similar materials."

This Court recently addressed this same issue in Ex parte Krothapalli, 762 So.2d 836 (Ala.2000). We wrote:

"In construing a statute, we must ascertain and give effect to the intent of the Legislature as that intent is expressed through the language of the statute. See BP Exploration

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