Munson v. Chamberlain, 20060447.

• Decision Date: 09 November 2007
• Docket Number: No. 20060447.,20060447.
• Citation: 2007 UT 91,173 P.3d 848
• Parties: Rebekah MUNSON, Plaintiff and Appellant, v. Bruce H. CHAMBERLAIN, M.D., and Central Utah Medical Clinic, Defendants and Appellees.
• Court: Utah Supreme Court

173 P.3d 848

2007 UT 91

Rebekah MUNSON, Plaintiff and Appellant, v. Bruce H. CHAMBERLAIN, M.D., and Central Utah Medical Clinic, Defendants and Appellees.

No. 20060447.

Supreme Court of Utah.

November 9, 2007.

Kenneth Parkinson, Provo, for plaintiff.

Curtis J. Drake, Troy L. Booher, Salt Lake City, for defendants.

PARRISH, Justice:

INTRODUCTION

¶ 1 Rebekah Munson's counsel provided to an expert witness two documents he had previously submitted to a medical malpractice prelitigation panel. The question presented on appeal is whether this act violated Utah Code section 78-14-12(1)(d) (2002), which imposes confidentiality requirements on proceedings before such panels. We hold that it did not. Because Munson's counsel had independent access to the documents, he was free to provide them to the expert witness without violating the statute.

BACKGROUND

¶ 2 Munson claims that Dr. Bruce Chamberlain misdiagnosed her condition and unnecessarily prescribed medication that caused her harm. Before Munson could initiate a medical malpractice lawsuit against Central Utah Medical Clinic and Dr. Chamberlain (collectively, "defendants"), the Utah Health Care Malpractice Act, Utah Code Ann. §§ 78-14-1 to -18 (2002 & Supp.2007), required her to take two preliminary steps. In compliance with these statutory requirements, Munson first served on defendants a notice of her intent to commence an action as mandated by Utah Code section 78-14-8. She then submitted her claim to review by a prelitigation panel as required by Utah Code section 78-14-12(1)(c). As part of the prelitigation review, Munson submitted various documents to the panel, including her medical records; the notice of intent; and an opinion letter prepared by Dr. Greg Kane, a medical expert Munson had retained to evaluate her case. Following completion of the prelitigation review process, Munson initiated a lawsuit against defendants.

¶ 3 After filing suit, Munson hired a second medical expert, Dr. Alexander Jacobs, for the purpose of testifying at trial. Munson's counsel provided Dr. Jacobs with a comprehensive set of documents, including Munson's medical records, a copy of the notice of intent, and a copy of Dr. Kane's opinion letter. On the morning of trial, defendants moved to disqualify Dr. Jacobs from testifying because he had viewed the notice of intent and the opinion letter. Defendants asserted that Munson's counsel had violated the confidentiality requirements of Utah Code section 78-14-12(1)(d) by showing the documents to Dr. Jacobs. They further asserted that they had been prejudiced by this act because they could not cross-examine Dr. Jacobs about his reliance on the documents without violating the confidentiality requirements themselves.

¶ 4 Relying on our decision in Doe v. Maret, 1999 UT 74, ¶ 21, 984 P.2d 980, the district court held that the confidentiality requirements had been violated and that sanctions were appropriate. The district court thereafter barred Dr. Jacobs from testifying, declared a mistrial, and ordered Munson to pay defendants' costs incurred in connection with Dr. Jacobs' testimony.

¶ 5 Over a year and a half later, defendants moved for summary judgment because Munson had yet to designate an expert witness to replace Dr. Jacobs. In response, Munson filed a motion to reconsider the order of mistrial and the disqualification of Dr. Jacobs. The district court denied Munson's motion to reconsider and granted summary judgment to defendants.

¶ 6 Munson appealed, arguing that the district court erred in ruling that the notice of intent and the opinion letter were protected by the confidentiality provisions of Utah Code section 78-14-12(1)(d). Because the interpretation of section 78-14-12(1)(d) is an issue of law, we review the decision below for correctness. See State v. Burns, 2000 UT 56, ¶ 15, 4 P.3d 795.

ANALYSIS

¶ 7 The Utah Health Care Malpractice Act, Utah Code Ann. §§ 78-14-1 to -18 (2002 & Supp.2007), mandates that a plaintiff satisfy two preliminary requirements before initiating a malpractice lawsuit against a health care provider. First, the potential plaintiff must serve the health care provider with a notice of intent to commence an action at least ninety days prior to initiating suit. Id. § 78-14-8 (2002). The notice of intent must include "a general statement of the nature of the claim, the persons involved, the date, time and place of the occurrence, the circumstances thereof, specific allegations of misconduct on the part of the prospective defendant, the nature of the alleged injuries and other damages sustained." Id.

¶ 8 Second, the potential plaintiff must file a request for review before a prelitigation panel. Id. § 78-14-12(2)(a). A copy of the notice of intent must be included with the request for prelitigation review. Id. § 78-14-12(2)(b). Upon completion of the prelitigation review by the panel,¹ and after the ninety-day compulsory waiting period from the service of the notice of intent has run, the plaintiff may commence formal litigation. Id. §§ 78-14-8, -12(1)(c).

¶ 9 Under the statute, the proceedings of prelitigation panels are "confidential, privileged, and immune from civil process." Id. § 78-14-12(1)(d). In a previous case, Doe v. Maret, we summarily held that the notice of intent was protected under the statute as part of the "proceedings" before the prelitigation panel. 1999 UT 74, ¶ 21, 984 P.2d 980. This case presents us with a similar claim, requiring us to address whether documents presented to a prelitigation panel are transfigured into confidential documents by virtue of being presented to the panel.

¶ 10 We hold that neither the plain language of the statute nor the statutory purpose supports the broad interpretation of the confidentiality requirement we recognized in Doe v. Maret. This opinion clarifies the scope of the confidentiality requirement imposed by section 78-14-12(1)(d), overruling any contradictory precedent in Doe v. Maret.

I. THE SCOPE OF THE PROTECTION AFFORDED BY UTAH CODE SECTION 78-14-12(1)(d)

¶ 11 Defendants argue that Utah Code section 78-14-12 protects the documents and evidence submitted to prelitigation panels, permanently rendering them confidential and privileged for all purposes thereafter. We disagree. The plain language of the statute, common law notions of confidential and privileged communications, and policy considerations all dictate that the protections afforded by the statute apply only to the actual proceedings before such panels.

¶ 12 First, the plain language of the statute does not extend to material submitted to the panel. When interpreting a statute, we look first to its plain language. See Bilanzich v. Lonetti, 2007 UT 26, ¶ 13, 160 P.3d 1041. The plain language of section 78-14-12(1)(d) extends only to the "proceedings" conducted by prelitigation panels; it does not protect documents or other evidence submitted to such panels. While both the notice of intent and opinion letter were submitted to the prelitigation panel, they were actually created by Munson's counsel and her expert consultant outside of the actual proceedings before the panel.

¶ 13 Because Munson had previously authored and served the notice of intent according to Utah Code section 78-14-8, she had access to that document independent of the proceedings described in Utah Code section 78-14-12. Munson also had independent access to the opinion letter because she acquired it directly from Dr. Kane. In short, while both the notice of intent and the opinion letter were submitted to the panel, Munson had access to them independent of her participation in the proceedings.² Because she had independent access to the materials, their use in the pretrial proceedings did not render them confidential.

¶ 14 Second, the common law traditionally interprets privileges narrowly. We previously have concluded that because a privilege has the undesirable effect of excluding relevant evidence, the term "privileged" should be "`strictly construed in accordance with its object.'" Gold Standard, Inc. v. Am. Barrick Res. Corp., 801 P.2d 909, 911 (Utah 1990) (quoting Jackson v. Kennecott Copper Corp., 27 Utah 2d 310, 495 P.2d 1254, 1257 (1972)). We have accordingly construed the scope of privileged communications narrowly to protect only the communications themselves rather than their contents.

¶ 15 This approach is consistent with the one taken by the United States Supreme Court in addressing the scope of the attorney-client privilege, where it stated:

The protection of the privilege extends only to communications and not to facts. A fact is one thing and a communication concerning that fact is an entirely different thing. The client cannot be compelled to answer the question, "What did you say or write to the attorney?" but may not refuse to disclose any relevant fact within his knowledge merely because he incorporated a statement of such fact into his communication to his attorney.

Upjohn Co. v. United States, 449 U.S. 383, 395-96, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981) (internal quotation marks and brackets omitted); see also Jackson, 495 P.2d at 1255, 1257 (holding that a smelting facility that regularly forwarded emissions data to its legal counsel "cannot foreclose the discovery process by the simple expedient of funneling the matter into its counsel's custody"); cf. Utah R. Evid. 408 (noting that even though evidence of settlement negotiations is inadmissible in Utah courts, "[t]his rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations").

¶ 16 This same analysis supports our conclusion that the privilege should extend only to the proceedings themselves, not to the facts, documents, and other evidence submitted to prelitigation panels. An overly broad application of the confidentiality requirement — extending it to documents and evidence that would otherwise be available through independent...