Franco v. District Court In and For City and County of Denver, 81SA97

• Decision Date: 25 January 1982
• Docket Number: No. 81SA97,81SA97
• Citation: 641 P.2d 922
• Parties: Frank O. FRANCO, M.D., Petitioner, v. The DISTRICT COURT In and For the CITY AND COUNTY OF DENVER, and The HonorableJohn Brooks, Jr., one of the Judges thereof, Respondents.
• Court: Colorado Supreme Court

Page 922

641 P.2d 922

Frank O. FRANCO, M.D., Petitioner, v. The DISTRICT COURT In and For the CITY AND COUNTY OF DENVER and The HonorableJohn Brooks, Jr., one of the Judges thereof, Respondents.

No. 81SA97.

Supreme Court of Colorado, En Banc.

Jan. 25, 1982.

Roath & Brega, P. C., Robert E. Kendig, Denver, for petitioner.

Pryor, Carney & Johnson, Thomas L. Roberts, Englewood, Hansen & Breit, P.C., William H. ReMine III, Quiat, Dice & Associates, Andrew L. Quiat, Denver, for respondents.

Lawrence M. Wood, Denver, for amicus curiae Colorado Medical Society.

QUINN, Justice.

Pursuant to C.A.R. 21 petitioner Frank O. Franco, M.D. invokes our original jurisdiction to compel the respondent court to order the production of certain documents in connection with a civil action filed by the petitioner against Beth Israel Hospital (Beth Israel), its Surgical and Medical Executive Committees, and the individual members of the committees. The pending civil action arises out of the suspension of the petitioner's surgical privileges at the hospital upon the recommendation of both committees which, pursuant to the statutory scheme of section 12-43.5-101 et seq., C.R.S.1973 (1978 Repl.Vol. 5), function as professional peer review committees to evaluate the quality of health care rendered by physicians practicing at Beth Israel. The respondent court denied the petitioner's motion to compel discovery and we issued a rule to show cause. We now discharge the rule.

I.

The petitioner has held hospital staff privileges at Beth Israel since 1969. In October 1979 problems relating to the petitioner's performance of colon surgery on a patient at the hospital came to the attention of Beth Israel's Surgical Committee. As a result of a committee meeting on October 16, 1979, Dr. Polevoy, the chairman of the Surgical Committee, wrote to the petitioner asking him to explain his management of the particular case. The petitioner responded to the committee by letter. The committee met on November 20, discussed the petitioner's response to its inquiry, decided to recommend the suspension of his privilege to perform colon surgery, and appointed an ad hoc committee consisting of four physicians to conduct an audit of hospital charts of his surgery on patients during the previous two years. Dr. Polevoy notified the petitioner of the Surgical Committee's actions and his procedural rights under Beth Israel's bylaws. Pursuant to Beth Israel's bylaws, the Surgical Committee's recommendation of suspension was referred to the Medical Executive Committee for review. On December 20, 1979, the petitioner was invited to attend the meeting of the Medical Executive Committee. He presented his reasons for performing the surgery at issue and submitted letters from independent surgeons regarding the surgery. The Medical Executive Committee concurred in the Surgical Committee's recommendation of suspension and the petitioner was so advised.

On January 15, 1980, the Surgical Committee again met after the hospital chart audit was completed. The petitioner met with the ad hoc committee and the committee reported its findings to the Surgical Committee. The Surgical Committee recommended that, in addition to suspending the petitioner's privilege to perform colon surgery, his privileges for vascular and thoracic surgery be suspended. The petitioner was notified of the committee's recommendation which also was referred to the Medical Executive Committee.

A meeting of the Medical Executive Committee was scheduled for February 25, 1980. Prior to the meeting the petitioner had obtained a copy of the minutes of the earlier meetings of the Surgical and Medical Executive Committees ¹ and, in the course of talking to some committee members, had been informed of reports submitted by other doctors to the committee during the investigation into the petitioner's surgical practices. All of the petitioner's discussions with committee members took place on an informal and personal basis and, as the petitioner conceded, the committee members did not represent themselves as acting in an official capacity for their respective committees, nor did they purport to waive any privilege on behalf of their respective committees.

The petitioner attended the meeting of the Medical Executive Committee on February 25, 1980, and presented his version of the matter at issue. The committee voted to suspend the petitioner's surgical privileges in accordance with the recommendation of the Surgical Committee. Although the bylaws of Beth Israel granted the petitioner the right to request a formal hearing before the Medical Executive Committee after it voted to suspend his privileges, By-Laws of the Medical Staff of the Beth Israel Hospital and Geriatric Center (By-Laws), Art. VIII, sec. 8.2(b), the petitioner chose not to avail himself of this right and his suspension became final. ²

The petitioner then filed a civil suit against Beth Israel, the Surgical and Medical Executive Committees, and the committee members for intentional infliction of emotional distress, outrageous misconduct, and conspiracy to injure his personal and professional reputation. He sought an injunction prohibiting the suspension of his surgical privileges, an order expunging the suspension from his record and reinstating his privileges, and compensatory and punitive damages. To establish his claims, the petitioner requested all notes, reports, memoranda, audits, and written recommendations of the review committees, as well as all documents from within and without the hospital relating to the review committee recommendations. Beth Israel objected to the requested discovery on the ground that the documents sought were privileged under sections 12-43.5-102(3)(e), C.R.S.1973 (1978 Repl.Vol. 5), which generally exempts from subpoena the records of professional review committees. The petitioner filed a motion to compel discovery and the respondent court conducted a hearing to determine whether the statutory privilege was applicable to a physician's lawsuit for damages and injunctive relief arising from a review committee's recommendation to suspend his hospital privileges and whether Beth Israel or committee members had waived the privilege. The court ruled that the statutory privilege barred discovery of the requested information and that the privilege had not been waived.

The petitioner concedes that section 12-43.5-102(3)(e) of the statutory scheme establishing peer review committees indeed does create a privilege. The dispute here centers on the scope of the privilege. ³ Before addressing this question we first must determine whether the review committees of Beth Israel qualify for the statutory privilege. Then we will address the principal issue, namely whether the privilege protects the records of the review committees from pretrial discovery in connection with the petitioner's pending lawsuit. Lastly, we consider whether Beth Israel and committee members waived the privilege by tendering to petitioner some committee records and by informally discussing committee proceedings with him.

II.

Peer review statutes, which state legislatures have enacted with increasing frequency in recent years, are directed towards the attainment of an elevated quality of health care at a reasonably low cost to the patient. Such legislation is based on the premise that the evaluation of the professional competency of doctors is best left to the specialized expertise of their peers, subject only to limited judicial surveillance. Peer review legislation promotes self-regulatory competence usually by protecting committee members with a qualified immunity and committee proceedings with some degree of confidentiality. See, e.g., Note, The Legal Liability of Medical Peer Review Participants For Revocation of Hospital Staff Privileges, 28 Drake L.Rev. 692 (1978-79); Note, Medical Peer Review Protection In the Health Care Industry, 52 Temple L.Q. 552 (1979).

Colorado enacted peer review legislation in 1975. 1975 Colo.Sess.Laws, ch. 126, 12-43.5-101 et seq. at 465-67. Section 12-43.5-102 sets forth the qualifying criteria for a review committee in terms of its source of authority, function and composition. Subsection 2(a) provides that the review committee may be authorized to act only by the medical staff of a licensed hospital and only "if the medical staff operates pursuant to written bylaws approved by the governing board of the hospital." The committee's function, as outlined in subsection (1), is "to review and evaluate the quality of care being given patients by any physician licensed under (the Colorado Medical Practice Act), in order to protect patients against the unauthorized, unqualified, and improper practice of such physician." ⁴ The composition of the review committee must include at least three licensed physicians. Section 12-43.5-102(2), C.R.S.1973 (1978 Repl.Vol. 5).

The record in this proceeding discloses that the medical staff of Beth Israel does operate pursuant to written and approved bylaws. These bylaws organize the medical staff into four clinical departments-medical, surgical, family practice and anesthesia. By-Laws, supra, Art. XI, sec. 11.2. Each department is required to appoint a committee and evaluate the professional performance of practitioners holding clinical privileges in the department. Id. at Art. XI, sec. 11.7. The recommendations of the clinical committees are forwarded to the Medical Executive Committee which primarily functions as a liaison between the medical staff and the Governing Body of the hospital. ⁵ Id. at Art. XII, sec. 12.1(f). In its liaison capacity the Medical Executive Committee reports and recommends corrective action against a practitioner, including a suspension of privileges. Id. Upon request, committee action is subject to formal hearing procedures and to an appellate review by the Governing Body. Id. at Art. IX, sec. 9.6.

The bylaws require each clinical department to meet at...