Klarfeld v. Salsbury, No. 840342

Docket NºNo. 840342
Citation233 Va. 277, 355 S.E.2d 319
Case DateApril 24, 1987
CourtSupreme Court of Virginia

Page 319

355 S.E.2d 319
233 Va. 277, 55 USLW 2690
Peter M. KLARFELD, et al.
v.
Carl SALSBURY, et al.
Record No. 840342.
Supreme Court of Virginia.
April 24, 1987.

[233 Va. 278] David C. Kohler (Michael W. Smith; Christian, Barton, Epps, Brent & Chappell, Richmond, on briefs), for appellants.

Norman F. Slenker, Fairfax, Brian C. Shevlin; R. Harrison Pledger, Jr. (Benjamin W. Glass, III, Arlington, Cynthia L. Vancil, Falls Church, Slenker, Brandt, Jennings & Johnston, Fairfax, Shevlin, Artz & Curtis, Arlington, on briefs), for appellees.

[233 Va. 277] Present: CARRICO, C.J., COCHRAN, * POFF, COMPTON, STEPHENSON and THOMAS, JJ., and HARRISON, Retired Justice.

[233 Va. 278] COMPTON, Justice.

In this medical malpractice case, we limited the issues on appeal, adducing two questions for decision. The dispositive issue is whether the trial court erred in restricting the scope of the discovery deposition of a member of a medical malpractice review panel. The other issue is whether the trial court erred, when confronted with an objection on constitutional grounds, in admitting the panel's opinion into evidence at trial.

Page 320

In December 1978, appellant Peter M. Klarfeld, 11 years of age, was treated for diabetes. Subsequently, the minor and his father, appellant Peter J. Klarfeld, claimed that appellees Carl Salsbury,[233 Va. 279] a pediatrician; John Sabol, an endocrinologist; Judith Brown, a pediatric resident; and Arlington Hospital Association, operator of Arlington County Hospital, were negligent in their treatment of the child for the condition and that such negligence caused severe brain damage.

A medical malpractice review panel was convened at the request of the appellees pursuant to Code § 8.01-581.3. The panel was composed of two physicians, a hospital administrator, three attorneys, and a circuit judge who presided. Dr. James H. Stallings, Jr., was one of the physician members. After a hearing, the members of the panel signed a unanimous written opinion stating that the evidence did not "support a conclusion that Dr. Salsbury or Dr. Sabol or Dr. Brown or Arlington County Hospital failed to comply with the appropriate standard of care." In October 1981, the Klarfelds filed the present damage suit alleging medical malpractice, naming appellees as defendants.

Subsequently, counsel for plaintiffs sought to take the discovery deposition of Dr. Stallings for the stated purpose of asking about the deliberations of the malpractice review panel and not for the purpose of using Stallings as an expert witness in the trial. When the deposition commenced in August 1983, counsel for defendants objected, taking the position that a panel member could not be required to testify during discovery about panel deliberations. The deposition was suspended and plaintiffs sought a ruling from the trial court upon "the extent to which counsel for plaintiff can question Dr. Stallings concerning the basis of the panel's decision and the deliberative process of the panel."

After considering argument of counsel, the trial court sustained defendants' position and entered the following pretrial order, which generates the central issue on appeal:

"UPON CONSIDERATION of the motion of plaintiffs, to establish boundaries for the deposition of Dr. Stallings and a hearing thereon, and it being the opinion of the court that the deliberative process of the Medical Malpractice Review Panel being a matter in Executive session, it is hereby

ORDERED, that plaintiffs may not depose Dr. Stallings concerning any aspect of the deliberative process of the panel and may limit their questioning of the witness solely as to whether or not the decision reflects Dr. Stallings' vote."

[233 Va. 280] During the course of the trial in September 1983, the panel's opinion was offered by a defendant and received in evidence, as provided by Code § 8.01-581.8, over plaintiffs' objection. This spawned the second issue on appeal. A jury found in favor of the defendants and we awarded the plaintiffs this appeal from the judgment order entered on the verdict in December 1983.

At the threshold, the parties disagree over the breadth of the pretrial order. The plaintiffs interpret the order broadly, saying it blocked "all pertinent avenues of questioning" and prevented them from "conducting any meaningful examination of Dr. Stallings, or any other panel member." The defendants construe the order narrowly, asserting it spoke only to the "deliberative process" and went no further.

None of the parties has attempted to define the phrase "deliberative process." As used in the order and in argument of counsel, we define "deliberative process" to mean that stage of the panel procedure when the members consider in private, and not in an open hearing, if any, the merits of the claim. The "deliberative process" includes, but is not limited to, statements of any kind made by any panel member during the private, "executive session" required by Rule Six (j)(13), Medical Malpractice Rules of Practice, Va.Code 1986 Replacement Volume 11, at 378 (Malpractice Rules).

We agree with the defendants that the pretrial order prohibited only interrogation about the deliberative process, given the context in which the issue was presented to

Page 321

the trial court. The avowed purpose of the deposition, as stated by plaintiffs' counsel, was to interrogate Stallings about the panel's deliberations. The trial court had only that narrow issue to decide. The court was not asked to decide if, for example, the plaintiffs properly could question Stallings about his individual, professional opinion, and the bases for such opinion, concerning whether defendants complied with the applicable standard of care. Therefore, we conclude that the order merely prohibited interrogation of Stallings "concerning any aspect of the deliberative process," in the language of the order. Further, in the last clause, the order permitted one question to be asked relative to the deliberative process, viz., whether the panel's recorded decision accurately reflected Stallings' vote cast during the executive session.

Consequently, the scope of our inquiry on the main issue on appeal is limited. We must decide whether the trial court erred in [233 Va. 281] restricting the plaintiffs' right to depose Stallings pretrial about the deliberative process to the one question, or, stated differently, whether the plaintiffs should have been permitted to depose Stallings about other aspects of such process.

The plaintiffs contend that the trial court's limitation on the pretrial examination of panel members was contrary to law. Plaintiffs point to Code § 8.01-581.8, which provides,

"An opinion of the medical review panel shall be admissible as evidence in any action subsequently brought by the claimant in a court of law, but such opinion shall not be conclusive and either party shall have the right to call, at his cost, any member of the panel, except the chairman, as a witness. If called, each witness shall be required to appear and testify. The panelist shall have absolute immunity from civil liability for all communications, findings, opinions and conclusions made in the course and scope of duties prescribed by this chapter."

That statute was among the laws enacted by the General Assembly in 1976 which established the medical malpractice review system and which addressed, in the language of the enactment, "a significant problem adversely affecting the public health, safety and welfare" arising from "tort actions commonly referred to as medical malpractice cases." Acts 1976, ch. 611 at p. 784. Those statutes presently are codified in Title 8.01, Chapter 21.1, §§ 8.01-581.1 to -581.20.

The plaintiffs note that, under the foregoing statute, panel members, except the chairman, are required to appear and testify at trial if called by a party. They argue that the panel's opinion in this case bore on the ultimate issue at trial and, therefore, the "integrity" of that opinion was well within the scope of discovery permitted by the discovery rules of this Court. Rule 4:1(b)(1) provides for the examination of witnesses on matters "relevant to the subject matter involved in the pending action" which are "not privileged."

Additionally, plaintiffs argue, the last sentence of § 8.01-581.8 makes clear "that the trial court's severe restrictions on the scope of examination were improper." Plaintiffs contend that testimony by a panel member during discovery is "entirely insulated from attack" because the statute provides a panelist with absolute immunity[233 Va. 282] from civil liability for any "communications, findings, opinions and conclusions" made in the course and scope of duties as a panel member. Thus, plaintiffs urge, a panelist should be required to give a discovery deposition about panel discussions.

The respective defendants take slightly different positions among themselves on this issue. Sobel, apparently assuming the General Assembly and not the Chief Justice promulgated the Malpractice Rules, see Code § 8.01-581.11, points out that such Rules require deliberations to be in "executive session." This provision, Sobel argues, makes it "clear ... the legislature never intended that the deliberative process of a medical malpractice review committee [sic] would be the proper subject of discovery." If such an intention had existed, the argument goes, the most effective...

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17 practice notes
  • Hodges v. COM., DEPT. OF SOCIAL SERVICES, Record No. 2182-03-3.
    • United States
    • Virginia Court of Appeals of Virginia
    • February 15, 2005
    ..."`When the General Assembly uses two different terms in the same act, it is presumed to mean two different things.'" Klarfeld v. Salsbury, 233 Va. 277, 284-85, 355 S.E.2d 319, 323 (1987) (quoting Forst v. Rockingham Poultry Marketing Coop., Inc., 222 Va. 270, 278, 279 S.E.2d 400, 404 (1981)......
  • Volkswagen of America, Inc. v. Smit, Record No. 082305.
    • United States
    • Virginia Supreme Court of Virginia
    • February 25, 2010
    ...of a statute unless such a determination is absolutely necessary to decide the merits of the case); see Klarfeld v. Salsbury, 233 Va. 277, 286, 355 S.E.2d 319, 324 Following the remand to the DMV and further proceedings before the Commissioner, Volkswagen was again found to have violated Co......
  • Volkswagen of America, Inc. v. Smit, Record No. 082305
    • United States
    • Virginia Supreme Court of Virginia
    • February 25, 2010
    ...of a statute unless such a determination is absolutely necessary to decide the merits of the case); see Klarfeld v. Salsbury, 233 Va. 277, 286, 355 S.E.2d 319, 324 (1987). Following the remand to the DMV and further proceedings before the Commissioner, Volkswagen was again found to have vio......
  • Campbell v. Com., No. 1048-90-1
    • United States
    • Virginia Court of Appeals of Virginia
    • September 10, 1991
    ...760 (1987). When the General Assembly uses different terms in the same act, it is presumed to mean different things. Klarfeld v. Salsbury, 233 Va. 277, 284-85, 355 S.E.2d 319, 323 (1987). Thus, the intention may primarily be discerned from the language of the statute. "In construing a statu......
  • Request a trial to view additional results
17 cases
  • Hodges v. COM., DEPT. OF SOCIAL SERVICES, Record No. 2182-03-3.
    • United States
    • Virginia Court of Appeals of Virginia
    • February 15, 2005
    ..."`When the General Assembly uses two different terms in the same act, it is presumed to mean two different things.'" Klarfeld v. Salsbury, 233 Va. 277, 284-85, 355 S.E.2d 319, 323 (1987) (quoting Forst v. Rockingham Poultry Marketing Coop., Inc., 222 Va. 270, 278, 279 S.E.2d 400, 404 (1981)......
  • Volkswagen of America, Inc. v. Smit, Record No. 082305.
    • United States
    • Virginia Supreme Court of Virginia
    • February 25, 2010
    ...of a statute unless such a determination is absolutely necessary to decide the merits of the case); see Klarfeld v. Salsbury, 233 Va. 277, 286, 355 S.E.2d 319, 324 Following the remand to the DMV and further proceedings before the Commissioner, Volkswagen was again found to have violated Co......
  • Volkswagen of America, Inc. v. Smit, Record No. 082305
    • United States
    • Virginia Supreme Court of Virginia
    • February 25, 2010
    ...of a statute unless such a determination is absolutely necessary to decide the merits of the case); see Klarfeld v. Salsbury, 233 Va. 277, 286, 355 S.E.2d 319, 324 (1987). Following the remand to the DMV and further proceedings before the Commissioner, Volkswagen was again found to have vio......
  • Campbell v. Com., No. 1048-90-1
    • United States
    • Virginia Court of Appeals of Virginia
    • September 10, 1991
    ...760 (1987). When the General Assembly uses different terms in the same act, it is presumed to mean different things. Klarfeld v. Salsbury, 233 Va. 277, 284-85, 355 S.E.2d 319, 323 (1987). Thus, the intention may primarily be discerned from the language of the statute. "In construing a statu......
  • Request a trial to view additional results

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