State ex rel. Chandra v. Sprinkle, 65400

Citation678 S.W.2d 804
Decision Date11 September 1984
Docket NumberNo. 65400,65400
PartiesSTATE ex rel. Ingrid CHANDRA, next friend of Anjali Kathryn Chandra, Relator, v. Hon. Richard P. SPRINKLE, Judge Circuit Court of Jackson County, Respondent.
CourtUnited States State Supreme Court of Missouri

Harvey L. Kaplan, Andrew See, Kansas City, for relator Chandra.

Jennifer A. Gille, Thomas A. Kokoruda, Suzanne Shank, Thomas N. Sterchi, Sherry L. Buchli, Robert M. Kroenert, Mark E Johnson, Kansas City, for respondent Sprinkle.

RENDLEN, Chief Justice.

Original proceeding in mandamus by which relator Ingrid Chandra, next friend of Anjali Kathryn Chandra, seeks to require the respondent trial judge, in an underlying medical malpractice action, to compel discovery of records of peer review and other committees in the possession of defendant Independence Sanitarium and Hospital. Relator argues the records are relevant to the treatment provided her infant daughter and to evaluation of the facilities and staff of the Hospital's emergency room and, therefore, are subject to discovery under Rule 56. 1 The Hospital's position is that the requested documents and information come under a "self-evaluative peer review privilege" and, therefore, are not discoverable.

Relator filed suit alleging medical malpractice arising from medical treatment provided her daughter, then a one month old infant, in the emergency room of the Hospital. The allegations presented are as follows: The infant had exhibited worsening symptoms of a cold, respiratory congestion and cough and was taken by her parents to the Hospital's emergency room. The family's pediatrician "on call," defendant Dr. Thomas Hansen, was contacted by telephone at another hospital, told of her condition and he ordered a chest x-ray immediately for the infant. While in the Hospital's X-Ray Department, the child suffered respiratory arrest. Her father, an internist who has staff privileges at the Hospital, administered cardiopulmonary resuscitation, rushed the child back to the emergency room and requested emergency medical treatment.

It is alleged the physician on duty in the Hospital's emergency room, Dr. Mark Ludwig, failed to respond and provide such emergency treatment. Emergency medical equipment used in resuscitation of infants was either unavailable or could not be located by personnel on duty in the emergency room. Dr. Hansen was contacted again by telephone but took no action to insure the child was being provided emergency treatment. Concerned that no physician had responded to the emergency, the infant's father telephoned defendant Dr. Robert Clothier, another of the child's regular pediatricians. Dr. Clothier did not respond personally or take action to insure that the child was being provided emergency medical treatment.

Dr. Hansen arrived at the Hospital's emergency room approximately one hour after the child's respiratory arrest. Upon his arrival, Dr. Hansen neither ordered nor performed emergency medical treatment. An ambulance and attending physician from another facility were called to provide treatment. Relator alleges that as a result of the negligence of the defendant physicians, professional corporations and the Hospital, the infant suffered prolonged and severe cerebral hypoxia (lack of oxygen to the brain) resulting in permanent brain damage, cerebral palsy with seizure disorders, functional blindness and permanently retarded physical and mental development.

Approximately one month following these events, the Hospital appointed an "Ad Hoc Committee," at the request of the infant's father, to investigate and report on the medical treatment provided to the child in the emergency room. Relator has propounded discovery requests to the Hospital seeking information and documents concerning the "Ad Hoc Committee," the factual information it gathered and its conclusions as to the child's treatment. Relator has also requested discovery of records of other Hospital "peer review" and standing committees relevant to the treatment provided the infant and concerning the facilities and staff of the Hospital's emergency room. The Hospital has refused to comply with these requests claiming a "peer review privilege." Respondent, Hon. Richard P. Sprinkle, then Judge of the Circuit Court of Jackson County, denied Relator's motion to compel discovery from defendant Hospital. This proceeding in mandamus followed. The preliminary order in mandamus entered November 22, 1983, is now made permanent.

In the absence of a statute establishing a peer review privilege, the critical self-evaluation privilege here asserted by the Hospital "at the most remains largely undefined and has not generally been recognized." Bergman v. Kemp, 97 F.R.D. 413, 416 (W.D.Mich.1983) quoting Lloyd v. Cessna Aircraft Company, 74 F.R.D. 518, 522 (E.D.Tenn.1977). 2 Nonetheless, the Hospital argues on behalf of respondent for recognition of such privilege, be it absolute or qualified. The Hospital urges that § 537.035, RSMo 1978, 3 which provides qualified immunity from action for damages for medical personnel participating in peer review, must be "extended" to protect peer review documents and materials from discovery if the peer review system is to be productive. The Hospital also asserts that this Court is faced with compelling public policy considerations requiring recognition of a peer review privilege. According to the advocates of this privilege, unless the evaluative proceedings are afforded confidentiality, the peer review system will not be effective in maintaining and improving quality health care.

Section 537.035 provides no basis for recognition of a peer review "privilege." The legislature has chosen to foster honest peer review by protecting the participants from liability rather than by declaring peer review documents to be privileged from discovery. 4 We are not unmindful of the policy underlying § 537.035. Clothing peer review participants with immunity from liability eliminates their apprehensions of recrimination for good faith appraisal of colleagues' performance and thus removes the major obstacle to beneficial honest peer review. See "Medical Peer Review Protection In The Health Care Industry," 52 Temp.L.Q. 552, 571-75 (1979) and Hall, "Hospital Committee Proceedings and Reports: Their Legal Status," 1 Am.J.L. & Med. 245, 254-64 (1975). The Hospital maintains that the statutory protection providing qualified immunity for committee participants is not enough, and requests this Court to add an additional feature to clothe the records with privilege from discovery not provided by the legislature. It argues the statute must be "extended" beyond its terms to shield all peer review materials from discovery or, at least, to protect the independent opinions of peer review committees; otherwise, it is argued, the peer review system will not be effective in improving the quality of health care. We are not persuaded that the clear language of the statute can be extended to establish the "privilege" requested here, and believe, when the Hospital's public policy argument for confidentiality is measured against relator's right to discovery under Rule 56, the Hospital's public policy argument must fail.

In Klinge v. Lutheran Medical Center of St. Louis, 518 S.W.2d 157, 167 (Mo.App.1975), 5 the peer review process was recognized as an analysis system designed to evaluate the quality of medical care. The court expressed the belief the system exists for the benefit of the public and those committed to the care of a hospital. "We believe that an internal staff examination ... assures to the individual patient that degree of professional treatment to which he is entitled and is to the benefit and welfare of the public that the hospital is conducted at a highly professional level." Id. It follows from this expression of the public policy underlying the system that it is intended to provide benefit for those presently receiving health care whose care may thereafter be scrutinized by peer review as well as those patients who thereafter come for treatment and whose care may be enhanced by the earlier peer review activity. Can it be said that the knowledge of periodic peer review which may follow the doctors' or Hospital's activities will not encourage improvement of professional conduct? We think not for the system is designed for evaluation and improvement of the health care program for those patients now under care as well as patients in the future. See "Medical Peer Review Protection In The Health Care Industry," supra. It would appear that the public interest lies with discoverability and not with confidentiality of these records. Claims of privilege present an exception to the usual rules of evidence and are carefully scrutinized. Ex Parte McClelland, 521 S.W.2d 481 (Mo.App.1975). Impediments to the discovery of truth are afforded validity in relatively few instances in the common law. See Nazareth Literary & Benevolent Inst. v. Stephenson, 503 S.W.2d 177, 179 (Ky.1973). We find no expression of policy in either the general law of evidence or in the statutes according any protection of confidentiality in the situation presented here on public policy grounds.

Rule 56.01(b) provides that parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, unless the court otherwise limits discovery in accordance with the rules. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. It should be noted that the hospital has not sought a protective order of the sort that may be available under Rule 56.01(c), but chose instead to assert the "privilege" and our holding here does not reach nor affect the rights of the parties in the discovery process except as to the question of this alleged "privilege." 6 We need not address...

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