Samaritan Foundation v. Superior Court In and For County of Maricopa
| Decision Date | 02 June 1992 |
| Docket Number | Nos. 1,CA-SA,s. 1 |
| Citation | 173 Ariz. 426,844 P.2d 593 |
| Parties | The SAMARITAN FOUNDATION, an Arizona corporation; Samaritan Health Services, dba Good Samaritan Regional Medical Center, an Arizona corporation; Cathey Milam Chester and Elaine Fraiz, Petitioners, Lawrence J. Koep, M.D., P.C., an Arizona corporation and Lawrence J. Koep, M.D., Defendants-Petitioners, v. SUPERIOR COURT of the State of Arizona, IN AND FOR THE COUNTY OF MARICOPA, the Honorable Stanley Z. Goodfarb, a judge thereof, Respondent Judge, Arista Mia DAWSON, a minor, by and through her next friend and natural father, Robert E. Dawson; Robert E. Dawson, and Dale M. Dawson, husband and wife, Real Parties in Interest. PHOENIX CHILDREN'S HOSPITAL, INC., an Arizona corporation, Petitioner, v. SUPERIOR COURT of the State of Arizona, IN AND FOR THE COUNTY OF MARICOPA, the Honorable Stanley Z. Goodfarb, a judge thereof, Respondent Judge, Arista Mia DAWSON, a minor, by and through her next friend and natural father, Robert E. Dawson; Robert E. Dawson, and Dale M. Dawson, husband and wife, Real Parties in Interest. 90-220, 1 90-232. |
| Court | Arizona Court of Appeals |
In February of 1988, a child suffered a cardiac arrest in surgery and emerged revived but neurologically impaired. This special action arises from discovery disputes in the medical malpractice suit brought by the child and her parents against the hospital and two physicians.
Shortly after surgery, at the direction of the hospital's legal department, a nurse paralegal interviewed four operating room witnesses. The witnesses now claim at depositions to recall little or nothing of the event. Though the paralegal's summaries might refresh the witnesses' recollection, the hospital declines to provide these summaries to the witnesses or release them to plaintiffs' counsel.
Plaintiffs (real parties in interest) moved to compel disclosure. The hospital and its fellow petitioners responded that the summaries are absolutely protected by the attorney-client privilege and immune from discovery under the work product doctrine. The trial court ordered the summaries to be produced for inspection in camera, found only portions to be privileged, and ordered the remainder--"the functional equivalent of a witness statement"--disclosed.
In these consolidated special actions, the petitioners allege that the trial court abused its discretion. We take jurisdiction because issues of statewide importance are presented and because there is no adequate remedy by appeal. Church of Jesus Christ of Latter-Day Saints v. Superior Court, 159 Ariz. 24, 25-26, 764 P.2d 759, 760-61 (App.1988) ( ).
Phoenix Children's Hospital ("PCH") is housed within Good Samaritan Regional Medical Center, which is owned and operated by Samaritan Health Services ("Samaritan"). PCH and Samaritan share some facilities and personnel, and, according to the affidavit of Samaritan's general counsel, the Samaritan Legal Department advises PCH and its employees "with regard to professional liability incidents and adverse patient occurrences."
In March 1988, anticipating litigation, petitioner Cathey Milam Chester, an attorney employed by Samaritan's Legal Department, directed an investigation of the incident that underlies this case. At Chester's direction, petitioner Elaine Fraiz, a Samaritan nurse paralegal, interviewed various witnesses to surgical and post-surgical events in the operating room and intensive care unit. This special action concerns Fraiz's interviews with four of those witnesses--three nurses and a scrub technician who were present in the operating room during surgery. 1 Each witness signed a form consenting to representation by Samaritan if a claim were filed against her. The form directed the witness not to discuss the event without legal department approval except "1) with health care providers involved with continuing patient care; 2) with Peer Review Committees upon request; 2 and 3) [if required by the employee's participation as] a student ... in a formal SHS teaching program."
Fraiz summarized her interviews of the four witnesses in written memoranda, which were maintained by the legal department. When plaintiffs ultimately deposed the four witnesses, the witnesses claimed to recall little of the surgery and surrounding events. Yet petitioners declined to show them the interview summaries to refresh their recollection, as to do so would have waived whatever privilege might otherwise attach. See Samaritan Health Servs., Inc. v. Superior Court, 142 Ariz. 435, 438, 690 P.2d 154, 157 (App.1984). 3
Plaintiffs' counsel, who had learned of the interview summaries through interrogatories and depositions, sought to depose Chester and Fraiz and subpoenaed documents relating to their investigation. Samaritan moved for a protective order, arguing that Chester and Fraiz knew only what they had learned through investigation and that the attorney-client privilege and work product rule shielded their investigative product from disclosure. As Samaritan was not a party, plaintiffs also moved that defendant PCH be compelled to produce the interview summaries, and PCH likewise asserted the attorney-client privilege and work product immunity in response. 4
The trial court directed Samaritan and PCH to provide copies of the summaries for in camera review, but to
line through on the summaries any and all material which constitutes matters of attorney opinion, attorney theory, attorney interpretation or attorney surmise. Those portions of the summaries which indicate the witnesses statements of what occurred during the operation ... shall be left without lines being drawn through.
The court indicated that it would extract from each summary and provide plaintiffs "the functional equivalent of a witness statement."
Upon receipt of the trial court's order, petitioners brought this consolidated special action and sought a stay, which this Court granted only in part. We directed the trial court to proceed with in camera inspection and designate what, if any, summary portions it intended to release. Petitioners' counsel were ordered to file under seal a copy of the summaries with this Court. Release of the designated portions to plaintiffs' counsel was stayed.
The trial court followed our directive, enabling us to review the proposed deletions by the trial court, and the trial court's finding that, without access to its designated portions, plaintiffs would be precluded from proving significant elements of their case. The trial court commented that Samaritan, as soon as an incident is reported, signs up its "employees as 'clients' of the legal department of the hospital, does extensive interviews and summaries and thereby wraps this material in a mantle of peer review, attorney/client privilege and attorney work product." The court concluded that
a reasonable reading of Humana Hospital v. Superior Court, 154 Ariz. 396, 742 P.2d 1382 ( [App.] 1987) and John C. Lincoln Hospital v. Superior Court, 159 Ariz. 456, 768 P.2d 188 (App.1989) indicates the Court must provide reasonable alternatives.... Where plaintiffs' opportunity to prove [their] case is as effectively blocked as defendants' theories would claim in the fourteen motions before this Court, due process would seem to call for some form of remedy.
Petitioners argue that the trial court abused its discretion because the work product rule immunizes the interview summaries from discovery. 5
Arizona's work product rule is embodied in Arizona Rule of Civil Procedure 26(b)(3), which provides qualified discovery immunity for material prepared in anticipation of litigation:
[A] party may obtain discovery of documents ... otherwise discoverable 6 ... and prepared in anticipation of litigation or for trial by or for another party ... or for that other party's representative ... only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party's case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.
The witness interview summaries that Elaine Fraiz prepared for Samaritan and PCH fall within the general ambit of Rule 26(b)(3). See Longs Drug Stores v. Howe, 134 Ariz. 424, 429, 657 P.2d 412, 417 (1983) ().
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