Hassan v. Mercy American River Hospital

• Decision Date: 18 August 2003
• Docket Number: No. S106256.,S106256.
• Court: California Supreme Court
• Parties: Allen HASSAN, Plaintiff and Appellant, v. MERCY AMERICAN RIVER HOSPITAL, Defendant and Respondent.

3 Cal.Rptr.3d 623

31 Cal.4th 709

74 P.3d 726

Allen HASSAN, Plaintiff and Appellant, v. MERCY AMERICAN RIVER HOSPITAL, Defendant and Respondent.

No. S106256.

Supreme Court of California.

August 18, 2003.

The Advani Law Firm, Kelly, Herlihy, Advani & Klein, The Schinner Law Group, Law Offices of Mukesh Advani, Mukesh Advani, Jerry Schreibstein and R. David Bolls III for Plaintiff and Appellant.

Diepenbrock, Wulff, Plant & Hannegan, Sean O. Sheridan, John A. Bachman; Riegels, Campos & Kenyon and Charity Kenyon, Sacramento, for Defendant and Respondent.

Catherine I. Hansen and Gregory M. Abrams for California Medical Association, California Dental Association and California Healthcare Association as Amici Curie on behalf of Defendant and Respondent.

KENNARD, J.

Civil Code section 43.8¹ confers a privilege on "any person" who makes a communication "to any hospital [or] hospital medical staff ... when the communication is intended to aid in the evaluation of the qualifications, fitness, character, or insurability of a practitioner of the healing or veterinary arts."

We must answer two related questions. First, is the statutory term "person" limited to humans, or does it also include entities? Second, is the privilege absolute or only qualified? We conclude that the privilege applies to entities, and that the privilege is qualified. Because this is consistent with the Court of Appeal's decision, we affirm that court's judgment.

I.

We recite the facts as set out in the record before the trial court when it granted defendant's motion for summary judgment. (Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 65-66, 99 Cal.Rptr.2d 316, 5 P.3d 874.)

From 1970 to 1986, plaintiff Allen Hassan was a member of the medical staff of defendant Mercy American River Hospital (Mercy). In September 1993, he applied for medical staff privileges at Roseville Community Hospital (Roseville). Roseville then sent Mercy a letter asking for information about plaintiff, including Mercy's "Knowledge of past clinical performance noting anything that warrants exercising caution in granting clinical privileges," and "verification ... of [plaintiffs] residency in psychiatry/neurology at Mendocino State Hospital."

Mercy's written response to Roseville, in December 1993, included "copies of letters received concerning [plaintiffs] residency" and a copy of a memorandum summarizing a telephone conversation on January 14, 1970, during which the then associate medical director of Mendocino State Hospital (Mendocino), in a conversation with Mercy's then medical director, had reportedly described plaintiff as "`MILITANT' v. authority," tending "to identify with the underdog," "too personally involved with problems of the misfortunate or oppressed (Arabs esp.)," and a "`MANIPULATOR' of coworkers and supervisors."

In May 1994, Roseville rejected plaintiffs application for staff privileges in part because of "[n]egative recommendations from other hospitals," including his "resignation from [the] psychiatry program at Mendocino." Plaintiff sought reconsideration of Roseville's decision, and eventually he entered into a settlement agreement under which he withdrew his application for active staff membership and Roseville admitted him under the category of "Active Physicians with Limited Hospital Privileges."

In June 1995, plaintiff sued Mercy, asserting causes of action for defamation, intentional interference with prospective business advantage, and negligent interference with an economic relationship, all based on the January 1970 telephone conversation memorandum that Mercy forwarded to Roseville.

In November 1996, Mercy moved for summary judgment, asserting that its communication to Roseville was privileged under section 43.8, which confers immunity on communications to a hospital that is evaluating a medical practitioner. Plaintiff opposed the motion, alleging that the staff member who forwarded the memorandum to Roseville did so out of ill will because he had not gotten along with plaintiff. Plaintiff described the memorandum as "devoid of any significance `to aid the evaluation of [his] qualifications, fitness, character, or insurability,'" because it was based on personal observations made some 26 years earlier, was "rife with speculation," and reflected "racism and inherent bias."

The trial court granted Mercy's motion for summary judgment. Relying on Johnson v. Superior Court (1994) 25 Cal. App.4th 1564, 31 Cal.Rptr.2d 199 (Johnson), the trial court found that Mercy's correspondence to Roseville was absolutely privileged under section 43.8. Plaintiff appealed.

The Court of Appeal affirmed the judgment. It agreed with the trial court that entities like Mercy could invoke the section 43.8 privilege, but it concluded that the privilege was qualified, not absolute. Nonetheless, it determined that the trial court properly granted summary judgment because Mercy's moving papers in support of summary judgment had established the conditions necessary for Mercy to claim the privilege and plaintiffs opposition papers had failed to raise a triable issue of fact on the issue of malice.

We granted plaintiffs petition for review to resolve conflicts among the Courts of Appeal over whether the term "person," as used in section 43.8, includes entities, and whether the Legislature intended that section to provide an absolute or a qualified privilege.

II

As noted at the outset, section 43.8 confers a privilege on "any person" who makes a communication to "any hospital" if the communication was "intended to aid" in evaluating a medical practitioner's "qualifications, fitness, character, or insurability." We consider first whether "any person" in this provision includes entities like defendant Mercy.

Well-established rules of statutory construction require us to ascertain the intent of the enacting legislative body so that we may adopt the construction that best effectuates the purpose of the law. (Esberg v. Union Oil Co. (2002) 28 Cal.4th 262, 268, 121 Cal.Rptr.2d 203, 47 P.3d 1069.) We first examine the words themselves because the statutory language is generally the most reliable indicator of legislative intent. (People v. Trevino (2001) 26 Cal.4th 237, 241, 109 Cal.Rptr.2d 567, 27 P.3d 283.) The words of the statute should be given their ordinary and usual meaning and should be construed in their statutory context. (Ibid.; see also Trope v. Katz (1995) 11 Cal.4th 274, 282, 45 Cal.Rptr.2d 241, 902 P.2d 259; Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 570-571, 38 Cal. Rptr.2d 139, 888 P.2d 1268.) These canons generally preclude judicial construction that renders part of the statute "meaningless or inoperative." (Manufacturers Life Ins. Co. v. Superior Court (1995) 10 Cal.4th 257, 274, 41 Cal.Rptr.2d 220, 895 P.2d 56.) In addition, words should be given the same meaning throughout a code unless the Legislature has indicated otherwise. (People v. Roberge (2003) 29 Cal.4th 979, 987, 129 Cal.Rptr.2d 861, 62 P.3d 97; see also Department of Revenue of Ore. v. ACF Industries, Inc. (1994) 510 U.S. 332, 342, 114 S.Ct. 843, 127 L.Ed.2d 165; People v. Nguyen (1999) 21 Cal.4th 197, 205, 87 Cal.Rptr.2d 198, 980 P.2d 905; State of California v. Texaco (1988) 46 Cal.3d 1147, 1162, 252 Cal.Rptr. 221, 762 P.2d 385.)

Section 43.8 states, in pertinent part, that "no cause of action for damages shall arise against, any person ...." (Italics added.) Section 43.8 does not define the word "person," but section 14, which defines certain words used in the Civil Code, states that "the word person includes a corporation as well as a natural person." And this court long ago recognized that "person" in the Civil Code may include "public or private corporations, or natural person[s]." (City of Pasadena v. Stimson (1891) 91 Cal. 238, 248, 27 P. 604.)

Plaintiff urges us to limit "person" in section 43.8 to humans. In support, he cites Axline v. Saint John's Hospital and Health Center (1998) 63 Cal.App.4th 907, 74 Cal.Rptr .2d 385 (Axline),

in which a doctor sued a hospital after it had denied his application to join its medical staff. In rejecting the hospital's claim of privilege under section 43.8, the Court of Appeal said that, "[g]iven the express language [of section 43.8], the Hospital does not explain how it can fall within the definition of 'any person.'" (Axline, supra, at p. 913, 74 Cal.Rptr.2d 385, italics added.)

The Court of Appeal here characterized that statement as "offhand speculation," apparently because the Axline court did not undertake an analysis of section 43.8's text or legislative history to determine whether entities could claim the privilege. Moreover, it viewed the statement as mere dictum because it was not necessary for the resolution of the case. In Axline, the doctor had challenged the procedures the hospital had used in processing his application rather than, as here, a communication between two hospitals about a doctor's competence and character. Consequently, the Axline court concluded that section 43.8's privilege was "not triggered" because "the alleged misconduct does not relate to the communication of information to a hospital." (Axline, supra, 63 Cal.App.4th at p. 913, 74 Cal. Rptr.2d 385.) Because the Axline court's suggestion that a hospital was not a person within the meaning of the term used in section 43.8 was a "comment ... made in passing, ... unnecessary to resolve the issue in that case" (Colmenares v. Braemar Country Club, Inc. (2003) 29 Cal.4th 1019, 1028, 130 Cal.Rptr.2d 662, 63 P.3d 220), we agree with the Court of Appeal here that it was "mere dictum, thus lacking in precedential force" (ibid).

It is not disputed that defendant Mercy is a corporation and thus falls within section 14's definition of a person. Nonetheless, plaintiff insists that we must consider whether the term "person" includes noncorporate entities because, he asserts, some health care providers, such as nursing homes,...