Rush v. Rush Health Sys.

• Decision Date: 20 April 2023
• Docket Number: 2020-IA-01116-SCT
• Parties: DR. BENJAMIN RUSH v. RUSH HEALTH SYSTEMS, INC., PHYSICIAN SERVICES, LLC, MEDICAL FOUNDATION, INC. AND RUSH MEDICAL FOUNDATION d/b/a RUSH FOUNDATION HOSPITAL
• Court: Mississippi Supreme Court

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DR. BENJAMIN RUSH
v.
RUSH HEALTH SYSTEMS, INC., PHYSICIAN SERVICES, LLC, MEDICAL FOUNDATION, INC. AND RUSH MEDICAL FOUNDATION d/b/a RUSH FOUNDATION HOSPITAL

No. 2020-IA-01116-SCT

Supreme Court of Mississippi

April 20, 2023

DATE OF JUDGMENT: 07/08/2021

LAUDERDALE COUNTY CIRCUIT COURT HON. RICHARD W. McKENZIE JUDGE

TRIAL COURT ATTORNEYS: J. TUCKER MITCHELL JULIE BOWMAN MITCHELL PHILIP JOSEPH CHAPMAN WILLIAM E. WHITFIELD, III KAREN KORFF SAWYER KACEY GUY BAILEY JACOB O. MALATESTA WILLIAM T. MAY LEE THAGGARD MILDRED M. MORRIS THOMAS L. KIRKLAND, JR. TIMOTHY LEE SENSING

ATTORNEYS FOR APPELLANT: JACOB O. MALATESTA JULIE BOWMAN MITCHELL ELLEN PATTON ROBB PHILIP JOSEPH CHAPMAN

ATTORNEYS FOR APPELLEES: WILLIAM T. MAY LEE THAGGARD NATURE OF THE CASE: CIVIL - CONTRACT DISPOSITION: DISMISSED WITHOUT PREJUDICE AND

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BEFORE RANDOLPH, C.J., MAXWELL AND BEAM, JJ.

BEAM, JUSTICE

¶1. The matter before us follows this Court's January 2021 order granting Dr. Benjamin Rush's interlocutory appeal from the Lauderdale County Circuit Court's discovery order in Dr. Rush's wrongful termination suit against Rush Hospital and other defendants.^[1] This Court remanded the matter to the trial court for an in camera review of the discovery documents sought by Dr. Rush that the trial court had summarily ruled were statutorily protected under Mississippi Code Sections 41-63-9 (peer review) and -23 (quality assurance) as confidential and privileged. En Banc Order, Rush v. Rush Health, No. 2020-M-01116-SCT (Miss. Jan. 20, 2021).

¶2. On remand, the trial court conducted an in camera review of approximately 3,033 document pages. On July 8, 2021, the trial court entered a detailed discovery order ordering that certain documents be produced, while denying the production of other documents. The trial court subsequently filed its discovery order with this Court on July 13, 2021. To our knowledge, no proceedings have taken place in the trial court with regard to the discovery order since it issued and was filed with this Court.

¶3. Dr. Rush claims the trial court erred in its discovery order as follows:

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I. The Circuit Court erred in determining that the Peer Review and Quality Assurance Privileges applied in this case when Dr. Rush makes specific factual allegations alleging malicious conduct

II. Three of the four hospital defendants are holding documents and information which cannot possibly be protected by the Peer Review or Quality Assurance Privilege.

III. Rush Foundation Hospital's withheld documents cannot possibly be privileged because they were created outside of a peer review or compliance committee.

IV. The Circuit Court's ruling is now being used by other defendants to prevent legitimate discovery.

¶4. Because all that we have before us is the trial court's discovery order, we address only the first issue concerning the malicious conduct exception to the peer review and quality assurance privileges. The documents reviewed in camera by the trial court are not included in the record. In addition to finding certain documents protected by either peer review and/or quality assurance privileges, the discovery order also finds that certain documents are protected by the attorney-client privilege, the attorney-work product doctrine, and/or work product prepared in anticipation of litigation. These privileges have not yet been challenged in the trial court. Therefore, we will speak only to the malice exception pertaining to Sections 41-63-9 and -23 purely as a question of law.

DISCUSSION

¶5. As this Court explained in Claypool v. Mladineo, 724 So.2d 373, 377 (Miss. 1998) (quoting Miss. Code Ann. § 41-63-29) (Supp. 1997)), "[t]he Legislature enacted [Sections] 41-63-9 and 41-63-23 as part of the substantive law of this state for the 'express purpose of

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promoting quality patient care through accreditation and quality assurance functions.'"

¶6. Section 41-63-9 reads:

Discoverability and admissibility into evidence of proceedings and records of review committees.

(1) Notwithstanding any conflicting statute, court rule or other law, in order to encourage medical and dental review activity, the proceedings and records of any medical or dental review committee shall be confidential and shall not be subject to discovery or introduction into evidence in any civil action arising out of the matters which are the subject of evaluation and review by such committee. No person who was in attendance at a meeting of such committee shall be permitted or required to testify in any civil action regarding any evidence or other matters produced or presented during the proceedings of the committee or as to any findings, recommendations, evaluations, opinions or other actions of the committee or its members. However, information, documents or records otherwise discoverable or admissible from original sources are not to be construed as immune from discovery or use in any civil action merely because they were presented during the proceedings of such committee, nor should any person who testifies before such committee or who is a member of such committee be prevented from testifying as to other matters within his knowledge. Provided, however, a witness shall not be questioned concerning his participation on or testimony before such committee or opinions formed by him as a result of such committee hearings or proceedings.

(2) The provisions of subsection (1) of this section which limit the discovery of medical or dental review committee records and proceedings shall not apply in any legal action brought by a medical or dental review committee to restrict or revoke a physician's license to practice medicine or hospital staff privileges, or in any legal action brought by an aggrieved physician against any member of the committee or the legal entity which formed such committee for actions alleged to have been malicious.

(3) The provisions of this statute, including the confidentiality provided in this subsection, shall be deemed part of the substantive law of this state enacted for the expressed legislative purpose of promoting quality patient care through medical and dental peer review activities.

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Miss. Code Ann. § 41-63-9 (Rev. 2018) (emphasis added).

¶7. Section 41-63-23 reads:

Accreditation and quality assurance materials of health-care organizations; discovery or introduction into evidence in civil actions; admissibility of testimony relating to preparation, evaluation or review of materials; admissibility of documents from original sources.

Accreditation and quality assurance materials, as defined in Sections 41-63-21 through 41-63-29, shall be held in confidence and shall not be subject to discovery or introduction into evidence in any civil action against the health care professional or institution. No person involved in preparation, evaluation or review of accreditation or quality assurance materials shall be permitted or required to testify in any civil action as to any evidence or other matters produced or presented during the course of preparation, evaluation or review of such materials or as to any finding, recommendation, evaluation, opinion, or other action of such accreditation or quality assurance or other person involved therein. Information, documents or records otherwise available from original sources are not to be construed as being unavailable for discovery or for use in any civil action merely because they were presented or used in preparation of accreditation or quality assurance materials, nor should any person involved in preparation, evaluation or review of such materials be prohibited from testifying as to matters within his knowledge, but the witness testifying should not be asked about any opinions or data given by him in preparation, evaluation or review of accreditation or quality assurance materials.

Miss. Code Ann. § 41-63-23 (Rev. 2018). While this Section does not mention malice, the next Section provides as follows:

Accreditation and quality assurance materials of health-care organizations; use of materials in proceedings relating to restriction or revocation of physician's license.

The provisions of Section 41-63-23 shall not apply in any legal action brought by a hospital or other health care entity to restrict or revoke a physician's license to practice medicine or hospital staff privileges, or in any legal action brought by an aggrieved physician against any hospital, health care

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entity, or person acting on behalf of any such entity for actions alleged to have been malicious.

Miss. Code Ann. § 41-63-25 (Rev. 2018) (emphasis added).

¶8. The Claypool Court was tasked with construing Sections 41-63-9 and -23 for the first time in a medical malpractice suit brought by a patient against the treating physician. Claypool, 724 So.2d at 381. The malice exceptions were not at issue and were not addressed in Claypool.

¶9. In speaking to the purpose behind these sections, Claypool said they were intended "to foster an environment where the health care providers could and would self-police themselves and promote quality patient care through accreditation and quality assurance functions by implementing committees that would review medical staff members' activities." Id. at 381. Those who participate on medical review committees, and those who provide information to such committees, do so with the expectation that such information will remain confidential. Id. at 377. The members must be allowed to discuss "matters freely," and the committees must be allowed "to take action without outside influence." Id. at 380. Without some privilege of confidentiality, many physicians would be unwilling to serve on peer review or quality assurance committees "and would not feel free to openly discuss the performance of other doctors practicing in...