Sherman v. District Court In and For City and County of Denver, 81SA406

• Decision Date: 30 November 1981
• Docket Number: No. 81SA406,81SA406
• Citation: 637 P.2d 378
• Parties: Janice C. SHERMAN, Petitioner, v. The DISTRICT COURT In and For the CITY AND COUNTY OF DENVER, Colorado, and James C. Flanigan, one of the Judges thereof, Respondents.
• Court: Colorado Supreme Court

Page 378

637 P.2d 378

Janice C. SHERMAN, Petitioner, v. The DISTRICT COURT In and For the CITY AND COUNTY OF DENVER Colorado, and James C. Flanigan, one of the Judges thereof, Respondents.

No. 81SA406.

Supreme Court of Colorado, En Banc.

Nov. 30, 1981.

Kenneth R. Fish, Denver, for petitioner.

Stuart L. Boulter, P. C., Stuart L. Boulter, Denver, for respondents.

LOHR, Justice.

In this original proceeding under C.A.R. 21, we directed the respondent Denver District Court to show cause why the petitioner's motion to compel discovery of certain hospital records for use in her personal injury action against that hospital should not be granted. We conclude that denial of the motion constituted an abuse of discretion which cannot be adequately remedied on appeal; therefore, we now make the rule absolute.

Janice R. Sherman (petitioner) brought an action in Denver District Court against St. Anthony Hospital Systems (St. Anthony) and two doctors who practice at a hospital owned and operated by St. Anthony. In that action the petitioner sought damages for injuries sustained as the result of a spinal operation performed on her on January 9, 1979, by the defendant doctors at St. Anthony's hospital. The operation included a bone graft. Severe infection developed at the graft site, and the petitioner alleged that it resulted from bacterial contamination caused by the defendants' negligence.

The petitioner served written interrogatories and a request for production of documents on St. Anthony. One of the interrogatories requested information as follows:

Identify any document received from or prepared by JCAH (Joint Commission on Accreditation of Hospitals) and related to each and every JCAH on-site survey conducted at the hospital during the period of time from January 1, 1977 to the date of your responses to these Interrogatories; ...

The request for production of documents asked for any documents identified in response to the above-quoted interrogatory, as well as the following additional documents:

The agenda, minutes, notes, reports, findings, summaries, recommendations, directives, or studies prepared by or for, submitted to or received from the hospital infection control committee during the period of time from September 1, 1978 through April 30, 1979.

St. Anthony objected to the quoted interrogatory and to the request for production of documents to be identified in response to that interrogatory on the basis that "such information is confidential and promulgated for remedial purposes only. See also C.R.S.1973, as amended, 31-21-110 and 13-90-107." It also objected to producing the hospital infection control committee documents "on the grounds that the requested information is confidential. See C.R.S.1973, as amended, 13-21-110."

The petitioner then moved to compel discovery of the information and documents which St. Anthony had declined to furnish. After a hearing, the trial court by written order denied that motion insofar as it relates to the information and documents here in dispute. The order does not reflect the reasons for the court's ruling. The petitioner then brought this original proceeding, contending that the trial court's ruling constituted a gross abuse of discretion and significantly disadvantages the petitioner in her preparation for trial. She alleges that appellate review would not provide an adequate remedy.

Preliminarily, we note that our consideration of the issues is hampered by the absence of a record. Neither the materials sought to be discovered nor a transcript of the proceedings in the trial court is before us. Under these circumstances we cannot determine definitively whether the requested material is subject to discovery in whole or in part. We elect to review the objections generally, set forth the applicable standards, and remand the matter to the trial court for further proceedings. See generally, City and County of Denver v. District Court, Colo., 607 P.2d 984 (1980).

I.

We start with the familiar rule that, unless otherwise limited by an order of court, "(p)arties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action ..." (Emphasis added). C.R.C.P. 26(b)(1). No claim is made that the materials sought are not relevant; rather, St. Anthony resists discovery solely on the basis that the information is privileged. ¹

CRE 501 identifies the sources of applicable privileges as follows:

Except as otherwise required by the Constitution of the United States, the Constitution of the State of Colorado, statutes of the State of Colorado, rules prescribed by the Supreme Court of the State of Colorado pursuant to constitutional authority, or by the principles of the common law as they may be interpreted by the courts of the State of Colorado in light of reason and experience, no person has a privilege to:

(2) Refuse to disclose any matter; or

(3) Refuse to produce any object or writing; or

This rule applies to all stages of this action, CRE 1101(c), and so is applicable to pre-trial discovery.

As sources of its claimed privilege, St. Anthony relies on three statutes, section 13-21-110, C.R.S.1973 (1980 Supp.); section 13-90-107(2), C.R.S.1973 (1980 Supp.); and section 12-43.5-101 et seq., C.R.S.1973 (1978 Repl. Vol. 5). ² It also founds its claim of privilege on considerations of public policy independent of a specific statutory basis. We shall address each asserted source of privilege in turn.

II.

We first consider whether documents related to the JCAH on-site surveys or to the activities of St. Anthony's hospital infection control committee are confidential and not subject to discovery by reason of section 13-21-110, C.R.S.1973 (1980 Supp.). That statute provides in pertinent part:

(1) Any information, data, reports, or records made available to a utilization review committee of a hospital or other health care facility, as required by state or federal law, is confidential and shall be used by such committee and the members thereof only in the exercise of the proper functions of the committee ...

(2) As used in this section, 'utilization review committee' means a committee established for the purpose of evaluating the quantity, quality, and the timeliness of health care services rendered under the 'Colorado Medical Assistance Act' and in compliance with Titles XVIII and XIX of the federal 'Social Security Act.'

Thus, to be privileged, the information sought must meet two requirements: (1) it must be furnished to a utilization review committee, defined as a committee formed for the purpose of evaluating the quantity, quality and timeliness of services rendered under the Colorado Medical Assistance Act and Titles XVIII and XIX of the federal Social Security Act; and (2) it must be information provided to that utilization review committee in order to satisfy requirements of state or federal law.

We first note that there has been no finding as to the purposes of the JCAH on-site surveys or the infection control committee. Only if these bodies have been established or employed for the purposes prescribed by section 13-21-110(2), C.R.S.1973, is the privilege provided by that section potentially applicable.

Additionally, it is necessary to determine whether any or all of the requested documents consist of information provided to those bodies in order to satisfy requirements of state or federal law. Our review of the Colorado Medical Assistance Act, section 26-4-101 et seq., C.R.S.1973 (1980 Supp.) and the regulations promulgated under it, see 10 CCR 2505-3, discloses no statutes or rules indicating that any of the information sought by the petitioner falls within the confidentiality protection of section 13-21-110, C.R.S.1973 (1980 Supp.), and St. Anthony has directed us to none. The utilization review committee function with respect to requirements of federal law is explained in 42 U.S.C.A. 1395x(k) (West 1974). Subsection (1) thereof establishes the variables to be monitored and the purpose of that review. Subsection (2) prescribes the composition of the utilization review committee. Subsection (3) requires particularized review in case of in-patient hospital services or extended care services furnished to an individual during a continuous period of extended duration. Subsection (4) concerns the required notifications in case the utilization review committee determines that a patient's further stay in the institution is not medically necessary. See also 42 U.S.C.A. § 1396b(i)(4) (West 1974) (incorporating the utilization review plan requirements of 42 U.S.C.A. 1395x(k), supra, unless an alternate review procedure of greater efficacy has received administrative approval).

Therefore, the trial court's task upon remand is to determine whether JCAH or the hospital infection control committee performs a "utilization review committee" function. Even if they do, the court must determine whether any part of the JCAH and hospital infection control committee documents consist of "(I)nformation, data, reports, or records made available to a utilization review committee of a hospital ... as required by state or federal law...." Section 13-21-110(1), C.R.S.1973. Only those portions, if any, of the information sought which have been supplied to the utilization review committee for purposes of compliance with applicable federal or state law are confidential and protected from discovery. An inspection of the documents in question, and perhaps additional testimony, will be required to resolve the merits of this claim of privilege.

III.

St. Anthony also asserts that the JCAH and infection control committee materials are privileged by reason of section 13-90-107(2), C.R.S.1973 (1980 Supp.). ³ That statute provides:

The medical records produced for use in the review provided for in subparagraphs (III) and (IV) of paragraph (d) of subsection (I) of this section shall not become public records by virtue of such use. The...