Lowy v. PeaceHealth, No. 85697–4.

CourtUnited States State Supreme Court of Washington
Writing for the CourtCHAMBERS
Citation280 P.3d 1078,174 Wash.2d 769
PartiesLeasa LOWY, Respondent, v. PEACEHEALTH, a Washington corporation; St. Joseph Hospital, Petitioners, and Unknown John Does, Defendants.
Decision Date21 June 2012
Docket NumberNo. 85697–4.

174 Wash.2d 769
280 P.3d 1078

Leasa LOWY, Respondent,
v.
PEACEHEALTH, a Washington corporation; St. Joseph Hospital, Petitioners,
and
Unknown John Does, Defendants.

No. 85697–4.

Supreme Court of Washington,
En Banc.

Argued Jan. 10, 2012.
Decided June 21, 2012.


[280 P.3d 1079]


Mary H. Spillane, Daniel W. Ferm, Williams Kastner & Gibbs, PLLC, John Coleman Graffe, Jr., Johnson Graffe Keay Moniz, Seattle, WA, for Petitioners.

Joel Dean Cunningham, J. Andrew Hoyal, II, Luvera Law Firm, Seattle, WA, Michael Jon Myers, Michael J. Myers, PLLC, Spokane, WA, for Respondent.


Michael F. Madden, Bennett Bigelow & Leedom, PS, Seattle, WA, amicus counsel for Group Health Cooperative, Multicare Health System, Providence Health & Services, Seattle Children's Hospital, Swedish Health Services, The Washington State Hospital Association.

[280 P.3d 1080]



Bryan Patrick Harnetiaux, Attorney at Law, Spokane, WA, George M. Ahrend, Ahrend Albrecht, PLLC, Moses Lake, WA, amicus counsel for Washington State Association for Justice Foundation.


CHAMBERS, J.

[174 Wash.2d 771]¶ 1 This case presents the issue of whether, in civil litigation, a party may decline to produce requested discoverable information on the basis that to locate the information would require consulting privileged [174 Wash.2d 772]documents. A hospital seeks a protective order to prevent it from being required to review its quality assurance records to identify discoverable medical records in a medical negligence suit. Our policy favoring open discovery requires that privileges in derogation of the common law must be narrowly construed. We hold that the prohibition of “review” in Washington's quality improvement statute, RCW 70.41.200, refers to external review and not internal review. We hold that the hospital's consultation of its own privileged database to identify relevant, discoverable files that fall outside of the privilege will not violate the hospital's privilege. We affirm the Court of Appeals and reverse the trial court.

FACTS

¶ 2 Dr. Leasa Lowy, MD, a staff physician at St. Joseph's Hospital in Bellingham, Washington (a hospital owned and operated by PeaceHealth), was admitted to the hospital as a patient. While a patient, Lowy sustained ulna nerve damage causing serious permanent impairment to her left arm. She claims that she can no longer practice her specialties of obstetrics, gynecology, and surgery. Lowy contends her injury was the result of an improper intravenous (IV) infusion procedure.

¶ 3 Lowy testified that she became aware of about 170 IV injuries at the hospital when she saw a list on a computer screen giving details of IV injuries with the patient names replaced by identification numbers.1 Contending the hospital has a serious and systemic problem with IV infusion injuries, Lowy brought a medical negligence action alleging, among other things, corporate negligence on the part of the hospital.

[174 Wash.2d 773]¶ 4 In connection with her theory of corporate negligence, Lowy sought to obtain, through a deposition under CR 30(b)(6), information relating to instances of “IV infusion complications and/or injuries at St. Joseph's Hospital for the years 2000–2008.” Clerk's Papers (CP) at 21. It is undisputed that the requested information is within the hospital's records and is relevant and otherwise discoverable. The patient records are maintained by the hospital electronically but the hospital does not have the capability to electronically search the records. The hospital moved for a protective order as to Lowy's request. It argued that the deponent requested by Lowy would have to locate the information by going through thousands of patient files by hand. The hospital contended, and Lowy conceded, that an individual search of all of the hospital records for a nine-year period would be unduly burdensome.

¶ 5 But Lowy pointed out the list she had seen, created for quality assurance purposes, identified instances of IV infusion injuries. Lowy suggested that it would not be unduly burdensome for the hospital to consult that list to locate the relevant patient files and produce only the relevant patient files after redacting sensitive patient information. The hospital acknowledged the existence of the list but argued that the list itself was created for PeaceHealth's “Cubes” database, which contains information derived from incident reports and maintained for the sole purpose of quality review. Because the list itself was prepared for purposes of quality assurance by its quality improvement committee and is thus protected from discovery, the hospital claimed it could not be required to use the list to locate items not protected from discovery. Lowy argued that the statutory protections for quality assurance information do not

[280 P.3d 1081]

prevent the hospital from conducting an internal review of its quality improvement committee information in order to locate unprotected information. Because such a review would allow the hospital to produce relevant discoverable information without undue burden, Lowy argued[174 Wash.2d 774]that the hospital was required to produce the information. The trial court first agreed with Lowy but then granted the protective order on a motion for reconsideration by the hospital. The Court of Appeals reversed the protective order, Lowy v. PeaceHealth, 159 Wash.App. 715, 247 P.3d 7 (2011), and we granted review, Lowy v. PeaceHealth, 171 Wash.2d 1027, 257 P.3d 662 (2011).

ANALYSIS
I. Peer Review and Hospital Quality Assurance

¶ 6 The legislature has established a comprehensive peer review schema to improve health care in Washington State. The general purpose of the peer review statute is to encourage health care providers to candidly review the work and behavior of their colleagues to improve health care. See Coburn v. Seda, 101 Wash.2d 270, 275, 279, 677 P.2d 173 (1984). RCW 4.24.250 was the first of these peer review statutes; it was enacted in 1971 and prohibited discovery of records of internal proceedings where one member of the health care profession presents evidence of negligence or incompetence against another. Laws of 1971, 1st Ex. Sess., ch. 144. Following the passage of the federal Health Care Quality Improvement Act of 1986, 42 U.S.C. §§ 11101–11152, many more states passed peer review statutes in response. See David L. Fine, Note, The Medical Peer Review Privilege in Massachusetts: A Necessary Quality Control Measure or an Ineffective Obstruction of Equitable Redress?, 38 Suffolk U. L. Rev. 811, 821 (2005). One such statute was RCW 70.41.200, enacted by the Washington legislature in 1986.2Laws of 1986, ch. 300, § 4. More complex than the [174 Wash.2d 775]1971 statute, it set forth a quality improvement scheme for hospitals, while at the same time protecting certain quality improvement records from discovery. RCW 70.41.200. Under this scheme, hospitals are required, among other things, to establish a coordinated quality improvement program, a quality improvement committee, and a medical malpractice prevention program; to collect information concerning negative health care outcomes; and to conduct periodic review of the competence in delivering health care services of all persons who are employed or associated with the hospital.3Id.

¶ 7 The legislature was concerned that if the data and other information generated by quality improvement committees could be used against a hospital, it would create a disincentive for hospitals to report effectively and evaluate candidly information concerning the hospital's experience.4See

[280 P.3d 1082]

Anderson v. Breda, 103 Wash.2d 901, 905, 700 P.2d 737 (1985). To ensure a candid discussion about the quality of health care by hospitals, the legislature shielded from discovery a hospital's quality review committee records. Id. We have explained that such protection, “like work product immunity, prevents the opposing party from taking advantage[174 Wash.2d 776]of a hospital's careful self-assessment. The opposing party must utilize his or her own experts to evaluate the facts underlying the incident ... to determine whether the hospital's care comported with proper quality standards.” Coburn, 101 Wash.2d at 274, 677 P.2d 173.

II. Discovery Rights and Peer Review

¶ 8 The right of discovery and the rules of discovery are integral to the civil justice system. See John Doe v. Puget Sound Blood Ctr., 117 Wash.2d 772, 782–83, 819 P.2d 370 (1991). Access to the civil justice system is founded upon our constitution, which mandates that “[j]ustice in all cases shall be administered openly, and without unnecessary delay.” Wash. Const. art. I, § 10. As we explained in Doe:

That justice which is to be administered openly is not an abstract theory of constitutional law, but rather is the bedrock foundation upon which rests all of the people's rights and obligations. In the course of administering justice the courts protect those rights and enforce those obligations. Indeed, the very first enactment of our state constitution is the declaration that governments are established to protect and maintain individual rights.

Doe, 117 Wash.2d at 780–81, 819 P.2d 370 (citing Wash. Const. art. I, § 1).


¶ 9 The right of access to the courts is closely tied to the command in section 10 of our constitution that justice be administered openly. Id. The “right of access includes the right of discovery authorized by the civil rules, subject to the restrictions contained therein.” Id. at 780, 819 P.2d 370. Moreover,

[t]he court rules recognize and implement the right of access. The discovery rules, specifically CR 26 and its companion rules, CR 27–37, grant a broad right of discovery which is subject to the relatively narrow restrictions of CR 26(c). This broad right of discovery is necessary to ensure access to the party seeking the discovery.

Id. at 782, 819 P.2d 370.


[174 Wash.2d 777]¶ 10 Besides its constitutional cornerstone, there are practical reasons for discovery. Earlier experiences with a “blindman's bluff”...

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63 practice notes
  • Cedell v. Farmers Ins. Co. of Wash., 85366–5.
    • United States
    • United States State Supreme Court of Washington
    • February 21, 2013
    ...(1974)). The right to discovery is an integral part of the right to access the courts embedded in our constitution. Lowy v. PeaceHealth, 174 Wash.2d 769, 776–77, 280 P.3d 1078 (2012) (citing Doe, 117 Wash.2d at 780–81, 819 P.2d 370). As we noted recently: Besides its constitutional cornerst......
  • Youngs v. Peacehealth, Corp., 87811–1.
    • United States
    • United States State Supreme Court of Washington
    • January 23, 2014
    ...possible to segregate litigation activity and quality improvement activity. Indeed, our recent decision in Lowy v. PeaceHealth, 174 Wash.2d 769, 778, 280 P.3d 1078 (2012), underscores that the quality improvement statutes are not to be used as a shield to alter the balance of interests of e......
  • Clark Cnty. v. Growth Mgmt. Hearings Bd., 50847-8-II (Consolidated)
    • United States
    • Court of Appeals of Washington
    • August 20, 2019
    ...relevant provision, the context of the entire statute, related provisions, and the statutory scheme as a whole. Lowy v. PeaceHealth , 174 Wash.2d 769, 779, 280 P.3d 1078 (2012). We do not liberally construe the GMA. Woods v. Kittitas County , 162 Wash.2d 597, 614, 174 P.3d 25 (2007).III. MO......
  • In re Marcum, 32118–5–III.
    • United States
    • Court of Appeals of Washington
    • October 13, 2015
    ...P.3d 737 (2006). The court's duty in statutory interpretation is to discern and implement the legislature's intent. Lowy v. PeaceHealth,174 Wash.2d 769, 779, 280 P.3d 1078 (2012). When the plain language of a statute is unambiguous and legislative intent is apparent, we will not construe th......
  • Request a trial to view additional results
62 cases
  • Clark Cnty. v. Growth Mgmt. Hearings Bd., No. 50847-8-II (Consolidated)
    • United States
    • Court of Appeals of Washington
    • August 20, 2019
    ...relevant provision, the context of the entire statute, related provisions, and the statutory scheme as a whole. Lowy v. PeaceHealth , 174 Wash.2d 769, 779, 280 P.3d 1078 (2012). We do not liberally construe the GMA. Woods v. Kittitas County , 162 Wash.2d 597, 614, 174 P.3d 25 (2007).III. MO......
  • In re Marcum, No. 32118–5–III.
    • United States
    • Court of Appeals of Washington
    • October 13, 2015
    ...P.3d 737 (2006). The court's duty in statutory interpretation is to discern and implement the legislature's intent. Lowy v. PeaceHealth,174 Wash.2d 769, 779, 280 P.3d 1078 (2012). When the plain language of a statute is unambiguous and legislative intent is apparent, we will not construe th......
  • Barton v. State, No. 86924–3.
    • United States
    • United States State Supreme Court of Washington
    • August 15, 2013
    ...at issue, and the statutory scheme as a whole. Manary v. Anderson, 176 Wash.2d 342, 352, 292 P.3d 96 (2013); Lowy v. PeaceHealth, 174 Wash.2d 769, 779, 280 P.3d 1078 (2012); Dep't of Ecology v. Campbell & Gwinn, LLC, 146 Wash.2d 1, 11, 43 P.3d 4 (2002). Rather than deliberating ignoring the......
  • In re Marcum, No. 92501-1.
    • United States
    • United States State Supreme Court of Washington
    • August 3, 2017
    ...as opposed to something else—for example, as in Marcum's interpretation, the nature of the disputed issues.5 Lowy v. PeaceHealth, 174 Wash.2d 769, 779, 280 P.3d 1078 (2012) ("Plain meaning may be gleaned ‘from all that the Legislature has said in the statute and related statutes which discl......
  • Request a trial to view additional results

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