Humana Hosp. Desert Valley v. Superior Court of Arizona In and For Maricopa County, s. 1
| Decision Date | 16 July 1987 |
| Docket Number | Nos. 1,CA-SA,s. 1 |
| Citation | 742 P.2d 1382,154 Ariz. 396 |
| Parties | HUMANA HOSPITAL DESERT VALLEY, a business name of Humana of Arizona, Inc., an Arizona corporation; Paul Blumberg, D.O., Petitioners, v. SUPERIOR COURT OF the State of ARIZONA, In and For the COUNTY OF MARICOPA, Honorable Marilyn A. Riddel, a judge thereof, Respondent Judge, Marily Darice EDISON, Real Party in Interest. SAMARITAN HEALTH SERVICE dba Desert Samaritan Medical Center; Phoenix General Hospital; Chandler Community Hospital; John C. Lincoln Hospital; Mesa Lutheran Hospital; Phoenix Community Medical Center, Petitioners, v. SUPERIOR COURT OF the State of ARIZONA, In and For the COUNTY OF MARICOPA, Honorable Marilyn A. Riddel, a judge thereof, Respondent Judge, Marilyn Darice EDISON, Real Party in Interest. 035, 1 034. |
| Court | Arizona Court of Appeals |
These special action petitions request review of the trial court's denial of a motion to quash discovery of hospital peer review documents. The special actions arise from the same medical malpractice case against petitioner Paul Blumberg, D.O. and petitioner Humana Hospital. The other petitioners (collectively referred to as Samaritan) are not parties to the underlying action. These hospitals were served with subpoenas duces tecum by real party in interest, Edison, plaintiff in the trial court. Petitioners allege that the trial court improperly denied their motions to quash the subpoenas duces tecum.
Arizona's Peer Review Act (the Act) governs the discoverability of peer review material. The Act states:
§ 36-445. Review of certain medical practices
The governing body of each licensed hospital ... shall require that physicians admitted to practice in the hospital ... organize into committees or other organizational structures to review the professional practices within the hospital or center for the purposes of reducing morbidity and mortality and for the improvement of the care of patients provided in the institution. Such review shall include the nature, quality and necessity of the care provided and the preventability of complications and deaths occurring in the hospital....
§ 36-445.01. Confidentiality of information; conditions of disclosure
A. All proceedings, records and materials prepared in connection with the reviews provided for in § 36-445, including all peer reviews of individual health care providers practicing in and applying to practice in hospitals or outpatient surgical centers and the records of such reviews, shall be confidential and shall not be subject to discovery except in proceedings before the board of medical examiners, or the board of osteopathic examiners, or in actions by an individual health care provider against a hospital.... No member of a committee established under the provisions of § 36-445 or officer or other member of a hospital's or center's medical, administrative or nursing staff engaged in assisting the hospital or center to carry out functions in accordance with that section or any person furnishing information to a committee performing peer review may be subpoenaed to testify in any judicial or quasi-judicial proceeding if such subpoena is based solely on such activities.
B. This article shall not be construed to affect any patient's claim to privilege or privacy or to prevent the subpoena of a patient's medical records if they are otherwise subject to discovery.... In any legal action brought against a hospital or outpatient surgical center ... claiming negligence for failure to adequately do peer review, representatives of the hospital or center are permitted to testify as to whether there was peer review as to the subject matter being litigated. The contents and records of the peer review proceedings are fully confidential and inadmissible as evidence in any court of law.
(Emphasis added.)
The subpoenas duces tecum requested the following documents from the hospitals' credentials files on Dr. Blumberg:
1. Any and all records in your possession relative to Paul Blumberg, D.O., including, but not limited to:
(a) application for staff privileges;
(b) application for any training program;
(c) any records reflecting hospital investigation into the application for staff privileges, including, although not limited to, the physician's background, experience and work before becoming associated with your organization;
(d) any and all records indicating hospital review or investigation of the work of Dr. Blumberg since he has been on your medical staff to the present time.
The trial court's order compelling production of the documents did not mention documents addressed in part (d) of the subpoenas, and no issue regarding part (d) is presented to us.
Petitioners either objected to the subpoenas pursuant to rule 45(e), Arizona Rules of Civil Procedure, or filed motions for protective orders, claiming that the requested materials were absolutely privileged under the Act.
The trial court held that applications for staff privileges or training program positions, and any investigations made by the reviewing committees into those applications, are not subject to the Act. The hospitals contend that the privilege expressly conferred by the Act applies to the records subpoenaed. We agree; therefore we grant relief and reverse.
At oral argument before this court, counsel for petitioner hospitals offered to provide Edison with information regarding Dr. Blumberg's application for training programs referred to in part (b) of the subpoenas; therefore we do not address that issue. After oral argument, this court ordered the parties to file supplemental memoranda addressing two constitutional issues relating to the peer review privilege. Therefore, the issues are:
1. Whether Arizona's peer review act effectively abrogates a cause of action against a hospital for negligent physician evaluation and supervision, violating Ariz. Const. Art. 18 § 6.
2. Whether Arizona's Act infringes upon the Arizona Supreme Court's rule-making power, violating Ariz. Const. Art. 6 § 5(5).
3. Whether hospital records of physicians' applications for staff privileges, as well as records reflecting hospital investigations into those applications, are absolutely privileged from discovery under the Act.
4. Whether a party-physician and/or a party-hospital has standing under the Act to object to the subpoenaing of the party-physician's credentials files from nonparty hospitals.
Because petitioners have no equally plain, speedy and adequate remedy by appeal, and because the questions presented are of substantial public magnitude, we accept jurisdiction. A.R.S. § 12-120.21; rule 1(a), Rules of Procedure for Special Actions; United States v. Superior Court, 144 Ariz. 265, 697 P.2d 658 (1985).
Edison claims Humana is liable for negligently supervising Dr. Blumberg under Purcell v. Zimbelman, 18 Ariz.App. 75, 500 P.2d 335 (1972). Dr. Blumberg argues that Edison's cause of action is not protected by the anti-abrogation clause because it does not apply to actions which did not exist at common law in 1912, when Arizona's constitution was adopted. Arizona first gave cognizance to a negligent supervision claim in 1972. Purcell.
Ariz. Const. Art. 18 § 6 (the anti-abrogation clause) provides:
[T]he right of action to recover damages for injury shall never be abrogated, and the amount recovered shall not be subject to any statutory limitation.
This clause protects all common law principles and causes of action, not just those existing in 1912. Boswell v. Phoenix Newspapers, Inc., 152 Ariz. 9, 730 P.2d 186 (1986). The Boswell court reasoned:
The constitutional protection extends to wrongs recognized at common law, but it is not limited to those elements and concepts of particular actions which were defined in our pre-statehood case law.... The law must allow for evolution of common-law actions to reflect today's needs and knowledge. Any other rule would allow those "long dead" to dictate solutions to problems of which they could not have been aware.
152 Ariz. at 17-18, 730 P.2d at 194-95. We therefore hold that the anti-abrogation clause applies to negligent supervision actions.
Humana argues that the peer review statute does not violate the anti-abrogation clause because it merely regulates how a negligent supervision action may be maintained instead of impermissibly abrogating such an action. In Barrio v. San Manuel Div. Hosp., 143 Ariz. 101, 692 P.2d 280 (1984), the court discussed the distinction between abrogation and regulation:
The legislature may regulate the cause of action for negligence so long as it leaves a claimant reasonable alternatives or choices which will enable him or her to bring the action. It may not, under the guise of "regulation," so affect the fundamental right to sue for damages as to effectively deprive the claimant of the ability to bring the action.
143 Ariz. at 106, 692 P.2d at 285 (emphasis added).
In the underlying action, Edison is suing Humana for negligently allowing Dr. Blumberg to practice on its staff and for negligently supervising Dr. Blumberg. To prove a negligent supervision theory, a plaintiff must establish that the hospital knew or should have known that a physician was not competent to provide certain care and that the hospital's failure to supervise the physician caused injury to the plaintiff. Tucson Med. Center v. Misevch, 113 Ariz. 34, 36, 545 P.2d 958, 960 (1976).
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