St. Joseph's v. Cardiac Surgery

• Decision Date: 12 April 2006
• Docket Number: No. 64, September Term, 2003.,64, September Term, 2003.
• Citation: 896 A.2d 304,392 Md. 75
• Parties: ST. JOSEPH MEDICAL CENTER, INC. v. CARDIAC SURGERY ASSOCIATES, P.A., et al.
• Court: Court of Special Appeals of Maryland

896 A.2d 304

392 Md. 75

ST. JOSEPH MEDICAL CENTER, INC. v. CARDIAC SURGERY ASSOCIATES, P.A., et al.

No. 64, September Term, 2003.

Court of Appeals of Maryland.

April 12, 2006.

COPYRIGHT MATERIAL OMITTED

James P. Gillece (Patrick Sheridan of McGuire Woods, on brief), Baltimore, for appellant.

Jerome G. Geraghty, Arnon E. Wiener, Baltimore, brief of Amicus Curiae in support of the Maryland Hospital Ass'n, Inc., for St. Joseph Medical Center, Inc., appellant.

William F. Gately (Howell & Gately), Baltimore; Kathleen McDermott of Blank Rome, LLP, Washington, DC; H. Russell Smouse of Law Offices of Peter G. Angelos, P.C., Baltimore, for appellee.

Kevin F. Arthur (Aron U. Raskas, Jean E. Lewis of Kramon & Graham, P.A., Baltimore), on brief, for appellees.

Argued before BELL, C.J., RAKER, WILNER, CATHELL, HARRELL, BATTAGLIA and JOHN C. ELDRIDGE (Retired, Specially Assigned), JJ.

JOHN C. ELDRIDGE, J., Retired, Specially Assigned.

This case involves a challenge to a trial court's discovery order requiring the production of several internal hospital documents. The documents consist of e-mails, correspondence, letters, and testimony by hospital staff, regarding incidents which staff members believed should be investigated by a medical review committee, i.e., a peer review group which monitors the quality of health services at the hospital. At issue is whether the documents are protected by the medical review committee privilege, which shields records, proceedings and files of such committees from discovery and admissibility in civil actions. We are also presented with the threshold question of whether the trial court's discovery order is appealable by the hospital, known as St. Joseph Medical Center, Inc. We shall hold that the order is appealable by St. Joseph, and we shall, on the merits, reverse the trial court's order.

I.

On October 17, 2001, Cardiac Surgery Associates, P.A., filed an action in the Circuit Court for Baltimore County against MidAtlantic Cardiovascular Associates, P.A., alleging unfair competition and tortious interference with economic relations in connection with the parties' cardiac surgery practices. Cardiac Surgery and MidAtlantic both employ cardiac surgeons who practice extensively at St. Joseph Medical Center, Inc. St. Joseph, however, is not a party to the unfair competition lawsuit.

Both sides in the unfair competition action sought discovery from St. Joseph by serving upon the hospital notices of deposition and subpoenas duces tecum. In response, St. Joseph produced over 29,000 pages of documents. Additionally, St. Joseph produced a privilege log, identifying those documents which it would not produce because, according to St. Joseph, they were covered by certain privileges, including the medical review committee privilege set forth in Maryland Code (1981, 2005 Repl.Vol.), § 1-401(d)(1) of the Health Occupations Article. St. Joseph's assertion of privilege was not challenged by either party during the discovery process.

St. Joseph later learned that 118 documents, which were listed in its privilege log, had been exchanged by the parties during discovery.¹ St. Joseph wrote to each of the parties and advised them that the 118 documents in their possession were privileged, that the documents had improperly come into the custody of the parties, and St. Joseph demanded the immediate return of the documents to the hospital.²

When the documents were not returned, St. Joseph commenced the present action by filing in the Circuit Court for Baltimore County a motion for a protective order, asserting that the medical review committee privilege protected the 118 documents. St. Joseph requested the court to disallow the use of those documents at the trial of the unfair competition case and order the parties in that case to return them to the hospital. MidAtlantic filed a response, consenting to the relief sought by St. Joseph, as it had already returned the one document in its possession.

Cardiac Surgery responded to St. Joseph's motion by arguing that the medical review committee privilege did not apply to any of the documents listed in St. Joseph's privilege log, including the 118 documents which had been produced by the parties in the underlying suit. Cardiac Surgery further argued that, even if the privilege applied, the allegations of unfair competition in the underlying litigation outweighed any interest St. Joseph had in protecting the documents. In making this argument, Cardiac Surgery chiefly relied on Price v. Howard County General Hospital, 950 F.Supp. 141 (D.Md.1996).

The Circuit Court granted St. Joseph's motion for a protective order in part and denied it in part. Initially, the court held that 19 of the 117 documents in Cardiac Surgery's possession were not protected by the medical review committee privilege under § 1-401(d) of the Health Occupations Article. St. Joseph then withdrew its claim of privilege as to 5 of the disputed documents, in which the names of its patients had been redacted. Therefore, there are 14 of the documents in Cardiac Surgery's possession which have remained at issue. In addition to these 14 documents, the Circuit Court ordered that St. Joseph produce other documents, namely

"all of the documents contained in [St. Joseph's] `privilege log,' . . . which are labeled `peer review,' or `utilization' are discoverable as they do not come within the meaning of medical review committee materials as meant by the Maryland legislature for reasons discussed below."

The Circuit Court, in an accompanying opinion, explained its order as follows (emphasis in original):

"In its ruling this Court is fully cognizant and respectful of the need and purpose underlying the medical review committee privilege as codified in Maryland Health Occupations Article, § 1-401 (2002). That purpose is to `ensure a high quality of peer review activity leading to the primary goal ... to provide better health care.' Unnamed Physician v. Committee [Commission] on Medical Discipline, 285 Md. 1 (1979). * * * Nevertheless, the Court finds that the materials that [St. Joseph] seeks to protect are not materials instituted by an act of a committee for the purpose intended by the statute. These materials are emails, letters, correspondences, and testimony of certain hospital staff, mostly nurses, regarding incidents they had personally witnessed and issues they feel should be addressed or investigated. There has been no indication that these materials are the result of or involved in such an investigation by a peer review or medical review committee, which would certainly be privileged. These materials are not documented disciplinary records or proceedings or files or notes or minutes of the medical review committee under § 1-401(d) of the statute. Rather, they are themselves observations and concerns, as yet not proven to be true, that tend to show that certain conduct of Defendant [in the unfair competition litigation], namely patient diversion and self-referral, might not be in a patient's best interest, and more important, that may be unlawful. Additionally, the material is directly relevant to the allegations made by Plaintiff [Cardiac Surgery], namely that Defendant [is] intentionally engaging in unfair competition, and are not materials intended to publicly disparage, or call into question, a doctor's medical ability. Therefore, their discoverability will have no chilling effect on the purpose of the privilege.

"This Court agrees with the reasoning of the United States District Court for the District of Maryland, which found that Maryland's medical review committee privilege did not apply to a federal antitrust claim because `the driving force behind the federal antitrust laws — free competition, outweigh the policies underlying the privilege.' Price v. Howard County General Hospital, 950 F.Supp. 141 (1996). Maryland's unfair competition laws are akin to the federal laws and attempt to enforce the same policy, preserving free competition. In this case, the Court finds that the policy of lawful competition outweighs the policy of the privilege."

St. Joseph noted an appeal to the Court of Special Appeals, challenging the Circuit Court's order with regard to the 14 documents in Cardiac Surgery's possession and with regard to the other documents listed in the privilege log which the Circuit Court held were discoverable. The Court of Special Appeals initially ordered that St. Joseph produce for the appellate court the documents at issue, but the appellate court later rescinded this order. Cardiac Surgery filed a motion to dismiss the appeal, arguing that the trial court's order was not appealable as a final judgment and that it did not fall within the collateral order doctrine. In its motion, Cardiac Surgery asserted that the only way for St. Joseph to appeal such an order would be to refuse to comply with the order and then be adjudicated in contempt of court. In its response, St. Joseph argued that a finding of contempt was not necessary to trigger its right to appeal the Circuit Court's order and that the order was appealable as a final judgment under this Court's decision in Department of Social Services v. Stein, 328 Md. 1, 612 A.2d 880 (1992). The Court of Special Appeals denied the motion to dismiss, without prejudice to the parties' right to reassert the appealability arguments in their briefs.

Before any further proceedings in the Court of Special Appeals, this Court issued a writ of certiorari. St. Joseph Medical v. Cardiac, 377 Md. 275, 833 A.2d 31 (2003). The parties in briefs and oral argument, in addition to addressing the merits of the Circuit Court's order, reiterate their contentions with respect to appealability.

II.

We shall first address Cardiac Surgery's motion to dismiss St. Joseph's appeal.

A.

As this Court has emphasized on numerous occasions, very recently by Judge Raker for the Court in Nnoli v. Nnoli, 389 Md. 315, 323, 884 A.2d 1215, 1219 (2005), "[t]...