State ex rel. AMISUB, Inc. v. Buckley

• Decision Date: 27 October 2000
• Docket Number: No. S-99-1058.,S-99-1058.
• Citation: 260 Neb. 596,618 N.W.2d 684
• Parties: STATE of Nebraska ex rel. AMISUB, INC. (Saint Joseph Hospital), relator, v. Honorable James A. BUCKLEY, Judge, Retired, District Court for Douglas County, Nebraska, respondent.
• Court: Nebraska Supreme Court

618 N.W.2d 684

260 Neb. 596

STATE of Nebraska ex rel. AMISUB, INC. (Saint Joseph Hospital), relator, v. Honorable James A. BUCKLEY, Judge, Retired, District Court for Douglas County, Nebraska, respondent.

No. S-99-1058.

Supreme Court of Nebraska.

October 27, 2000.

Patrick G. Vipond, Raymond E. Walden, and Kyle Wallor, of Lamson, Dugan & Murray, Omaha, for relator.

William J. Brennan, of Fitzgerald, Schorr, Barmettler & Brennan, P.C., Omaha, for amicus curiae George R. Collins.

HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

MILLER-LERMAN, J.

I. NATURE OF CASE

AMISUB, Inc., relator, also known as St. Joseph Hospital (AMISUB or the hospital) sought leave to file this original action seeking a writ of mandamus compelling the district court judge for Douglas County, the Honorable Lawrence J. Corrigan, respondent, since retired, to set aside certain orders compelling discovery, to quash certain discovery requests, and to enter a protective order prohibiting the discovery of certain documents in an action brought against AMISUB by George R. Collins, conservator of Elizabeth Collins (Elizabeth), a minor. During the course of these proceedings, Judge Corrigan retired and the Honorable James A. Buckley appeared and was substituted as respondent. The respondent is referred to as the "district court" in this opinion. We granted leave to file this original action.

Primarily at issue in this action is whether the documents in question are protected from discovery under the peer review privilege embodied in Neb.Rev. Stat. § 71-2048 (Reissue 1996). Related Neb.Rev.Stat. §§ 71-2046 and 71-2047 (Reissue 1996) are also involved in this action. Because we conclude that the documents at issue in the action are not privileged under § 71-2046 et seq., we now deny a peremptory writ of mandamus.

II. STATEMENT OF FACTS

Following the grant of leave to file this original action, this court appointed, on October 14, 1999, the Honorable William D. Blue, a retired district court judge, as special master for the purpose of taking evidence and for making findings of fact. The factual statement of this case is taken largely from the findings of fact made by Judge Blue. Additional facts are taken from the pleadings and various exhibits.

AMISUB is the defendant in the case Collins v. AMISUB (Saint Joseph Hospital), Inc., docket 963, page 355, currently pending in Douglas County District Court (the underlying case). The underlying case was initiated by Collins as the conservator of Elizabeth to recover for injuries Elizabeth allegedly sustained when she fell as she was exiting her bed while a patient in the hospital's pediatric unit. Elizabeth's date of birth is April 3, 1978.

Elizabeth was involved in an automobile accident on July 24, 1995, and was brought to the hospital on that same date to receive treatment for injuries she sustained in the accident. She was initially treated in the hospital's intensive care unit (ICU), but on August 4, she was transferred from ICU to the hospital's pediatric ward. At the time she was transferred, Elizabeth's neurosurgeon, Dr. Charles Taylon, found Elizabeth to be alert and oriented. Dr. Raymond Heller, a medical resident who transferred Elizabeth from ICU to the pediatric ward, directed that Elizabeth could get out of bed and perform activities with "one assistant with her." He gave the order for assistance in order to "minimize the possibility of an accident happening."

On August 4, 1995, at 6 p.m., Elizabeth was taken by Susan Beaton, a registered nurse, to the restroom and then returned to her bed. The side rails on Elizabeth's bed were placed in the "up" position, and Elizabeth was given the nurse call light. Beaton testified that she informed Elizabeth she should not get out of bed without assistance.

Shortly after being returned to her bed, and while unattended, Elizabeth fell while exiting her bed. Beaton recorded the fall in Elizabeth's medical records as follows: "Afebrile. Unsteady on feet. [Patient fell] at 1800, climbed [out of bed] even [with] 4 siderails [up]. Report made. Dr. Heller called CT done, PT taken to surgery." The CT scan taken after she fell showed Elizabeth had a significant large right hemispheric subdural hematoma which was not present on a CT scan taken the day prior to her fall. The "report" to which reference is made by Beaton in Elizabeth's medical records quoted above is an incident or occurrence report prepared by Beaton on August 4, 1995 (incident report). This incident report is one of the documents for which AMISUB seeks a protective order.

At the time of her fall, Elizabeth was a minor. Collins filed the underlying case against AMISUB in his capacity as Elizabeth's conservator. In the second amended petition filed in the underlying case, Collins alleged that AMISUB's negligence was the proximate cause of Elizabeth's fall and subsequent injuries. In support of this allegation, Collins alleged that AMISUB was negligent as follows:

a. In failing to use the T.V. monitoring system when no one was in [Elizabeth's] hospital room.

b. In failing to provide adequate staffing to cover [Elizabeth's] needs.

c. In allowing [Elizabeth] to leave her bed without "one assist" in violation of the doctor's orders.

d. In leaving [Elizabeth] unattended both before and after the fall.

e. In failing to use appropriate equipment and/or alarm systems to warn [AMISUB] and its employees [that Elizabeth] was leaving her bed or prevent [Elizabeth] from leaving her bed.

f. In failing to monitor [Elizabeth's] medical chart on the day in question to determine that [Elizabeth] had a problem with memory.

Collins alleges in the second amended petition that as a result of Elizabeth's fall and the injuries she sustained from the fall, Elizabeth was forced to undergo the placement of a tracheostomy tube and laparoscopic gastrostomy tube, and suffered from elevated temperatures, swollen joints, and pneumonia. Collins further claims that at the time of Elizabeth's discharge from the hospital on August 31, 1995, she was in a semiconscious condition, unable to respond to verbal commands and unable to move her limbs. Collins alleges that Elizabeth required extensive rehabilitation as a result of the fall, is permanently disabled and unable to work, and has little or no future earning capacity. In the underlying case, Collins seeks from AMISUB, on behalf of Elizabeth, special damages in the amount of $85,000, together with general damages to compensate Elizabeth for her pain and suffering, loss of life's cares and joys, and lost income.

1. INCIDENT REPORT

On December 23, 1997, as part of the underlying case, Collins served AMISUB with certain requests for production of documents. Request No. 2 sought copies of all incident reports that had been referred to by Beaton in Elizabeth's August 4, 1995, medical records. AMISUB responded to Collins' discovery request by objecting to request No. 2, asserting that "any incident reports or investigation made as part of any hospital utilization review or quality assurance assessment is privileged under Nebraska law." Thereafter, on April 9, 1998, and again on June 2, Collins filed a motion to compel production of the requested incident report. On June 8, AMISUB filed a motion for a protective order, requesting that the district court issue a protective order stating that this requested discovery would not be permitted.

AMISUB based its motion upon a claim of privilege pursuant to § 71-2046 et seq. These statutes were part of 1971 Neb. Laws, L.B. 148. The statutory provisions relate to the hospital-wide medical staff committee and hospital-wide utilization review committee and require all hospitals to establish such committees. See Oviatt v. Archbishop Bergan Mercy Hospital, 191 Neb. 224, 214 N.W.2d 490 (1974). Specifically, § 71-2046 provides as follows:

Each hospital licensed in the State of Nebraska shall cause a medical staff committee and a utilization review committee to be formed and operated for the purpose of reviewing, from time to time, the medical and hospital care provided in such hospital and the use of such hospital facilities and for assisting individual physicians and surgeons practicing in such hospital and the administrators and nurses employed in the operation of such hospital in maintaining and providing a high standard of medical and hospital care and promoting the most efficient use of such hospital facilities.

Section 71-2047, part of L.B. 148, provides as follows:

Any physician, surgeon, hospital administrator, nurse, technologist, and any other person engaged in work in or about a licensed hospital and having any information or knowledge relating to the medical and hospital care provided in such hospital or the efficient use of such hospital facilities shall be obligated, when requested by a hospital medical staff committee or a utilization review committee, to provide such committee with all of the facts or information possessed by such individual with reference to such care or use. Any person making a report or providing information to a hospital medical staff committee or a utilization review committee of a hospital upon request of such committee has a privilege to refuse to disclose and to prevent any other person from disclosing the report or information so provided, except as provided in section 71-2048.

Section 71-2048, also part of L.B. 148, provides for a peer review privilege as follows:

The proceedings, minutes, records, and reports of any medical staff committee or utilization review committee as defined in section 71-2046, together with all communications originating in such committees are privileged communications which may not be disclosed or obtained by legal discovery proceedings unless (1) the privilege is waived by the patient and (2) a court of record, after a hearing and for good cause arising from extraordinary circumstances being shown, orders the disclosure of...