State ex rel. Shroades v. Henry

Citation421 S.E.2d 264,187 W.Va. 723
Decision Date22 July 1992
Docket NumberNo. 21167,21167
CourtSupreme Court of West Virginia
PartiesSTATE ex rel. Teresa Fearnow SHROADES, Petitioner, v. Honorable Patrick G. HENRY, Judge of the Circuit Court of Berkeley County.

Syllabus by the Court

1. "Issuance of a broad protective order, based upon the assertion of a blanket privilege against discovery, without scrutiny of each proposed area of inquiry and without giving full consideration to a more narrowly drawn order constitutes abuse of discretion under West Virginia Rule of Civil Procedure 26(c)." Syllabus Point 7, Bennett v. Warner, 179 W.Va. 742, 372 S.E.2d 920 (1988).

2. The determination of which materials are privileged under W.Va.Code, 30-3C-1 [1975] et seq. is essentially a factual question and the party asserting the privilege has the burden of demonstrating that the privilege applies.

3. W.Va.Code, 30-3C-3 [1980] provides that "[t]he proceedings and records of a review organization shall be confidential ... Provided, That information, documents or records otherwise available from original sources are not to be construed as immune from discovery or use in any civil action merely because they were presented during proceedings of such [a review] organization...." The language of the statute grants a privilege to all the records and proceedings of a review organization, but no privilege attaches to information, documents or records considered by a review organization if the material is "otherwise available from original sources."

Laura R. Coltelli, Preiser, Tabor, Lindsay & Coltelli, Martinsburg, for petitioner.

Herbert G. Underwood, Irene M. Keeley, Gordon H. Copland, Steptoe & Johnson, Clarksburg, for City Hosp., Inc., defendant below.

NEELY, Justice:

Teresa Fearnow Shroades petitions this Court to prohibit the Honorable Patrick G. Henry, Judge of the Circuit Court of Berkeley County from enforcing an order refusing Ms. Shroades access to certain materials held by City Hospital, Inc., one of the defendants in a medical malpractice case arising from the death of Anal Russell Fearnow. The circuit court upheld City Hospital's claim that the requested materials are privileged as a medical review organization's records under W.Va.Code, 30-3C-1 [1975] et seq. On appeal, Ms. Shroades contends that the circuit court should not have upheld City Hospital's broad privilege claim, but should have examined the requested documents in camera to determine whether each document was, in fact, privileged. Based on the information provided, we find that the circuit court should have held an in camera examination to determine if the requested documents are privileged under W.Va.Code, 30-3C-1 et seq. [1980].

I.

On 14 June 1988, Ms. Shroades filed a wrongful death action against City Hospital, Harry Scott, M.D., Cara May, R.N., Tammy Jurek, R.N. and Todd Way claiming that their negligence caused the death of Anal Russell Fearnow. During discovery, Ms. Shroades requested City Hospital to produce the following documents: (1) all service records, including the personnel files of the individual defendants, and (2) all evaluation reports for the individual defendants, (3) all documents concerning an alleged failure to complete timely the deceased's medical reports, (4) all documents concerning the pharmacy and therapeutics committee, (5) data concerning adverse drug reactions, (6) results of in-house investigations concerning drug administration, (7) recommendations of the quality assurance committee concerning drug administration, (8) reports of the quality assurance committee, (9) minutes of any special meeting investigating the incident, (10) agendas for medical staff meetings, and (11) reports of professional review action by the West Virginia Board of Examiners. 1

Asserting that the requested materials listed above in (1) through (11) are part of peer review and, therefore, privileged under W.Va.Code, 30-3C-1 [1975] et seq., City Hospital objected. 2 After the circuit court declined to hold an in camera examination of the requested material 3 and refused to grant Ms. Shroades' motion to compel, Ms. Shroades petitioned this Court for a writ of prohibition seeking to stop the circuit court from enforcing its order. We conclude that the protective order as drawn was unnecessarily broad; consequently, the writ of prohibition prayed for is granted.

II.

The scope of discovery in civil cases is broad; however, privileged material is not subject to discovery. Rule 26(b)(1) of the West Virginia Rules of Civil Procedure [1988] provides, in pertinent part, that the "[p]arties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action...."

In 1980, the legislature created a privilege for the records of peer review organizations in the medical profession by enacting W.Va.Code, 30-3C-3 [1980], which provides:

The proceedings and records of a review organization shall be confidential and privileged and shall not be subject to subpoena or discovery proceedings or be admitted as evidence in any civil action arising out of the matters which are subject to evaluation and review by such organization and no person who was in attendance at a meeting of such organization shall be permitted or required to testify in any such civil action as to any evidence or other matters produced or presented during the proceedings of such organization or as to any findings, recommendation, evaluations, opinions or other actions of such organization or any members thereof: Provided, That information, documents or records otherwise available from original sources are not to be construed as immune from discovery or use in any civil action merely because they were presented during proceedings of such organization, nor should any person who testifies before such organization or who is a member of such organization be prevented from testifying as to matters within his knowledge, but the witness shall not be asked about his testimony before such an organization or opinions formed by him as a result of said organization hearings: Provided, however, That an individual may execute a valid waiver authorizing the release of the contents of his file pertaining to his own acts or omissions, and such waiver shall remove the confidentiality and privilege of said contents otherwise provided by this section: Provided, further, That upon further review by any other review organization, upon judicial review of any finding or determination of a review organization or in any civil action filed by an individual whose activities have been reviewed, any testimony, documents, proceedings, records and other evidence adduced before any such review organization shall be available to such further review organization, the court and the individual whose activities have been reviewed. The court shall enter such protective orders as may be appropriate to provide for the confidentiality of the records provided the court by a review organization and all papers and records relating to the proceedings had before the reviewing court.

A review organization is defined by W.Va.Code, 30-3C-1 [1975] as: " any committee or organization engaging in peer review, ... any committee or organization established pursuant to a medical assistance program ... any committee established by one or more state or local professional societies or institutes, to gather and review information relating to the care and treatment of patients for the purposes of (i) evaluating and improving the quality of health care rendered; (ii) reducing morbidity or mortality; or (iii) establishing and enforcing guidelines designed to keep within reasonable bounds the cost of health care ... [, 4] any hospital board committee, or organization reviewing the professional qualifications or activities of its medical staff or applicants for admission thereto, and any professional standards review organizations established or required under state or federal statutes or regulations." 4

In Daily Gazette Co., Inc. v. W.Va. Bd. of Medicine, 177 W.Va. 316, 352 S.E.2d 66 (1986) (holding that public disclosure is permitted when the records of a peer review committee are utilized by the West Virginia Board of Medicine), we accorded "confidentiality to the peer review procedure." Id., 177 W.Va. at 322, 352 S.E.2d at 72. In Daily Gazette, we noted that "it seems evident that the legislature enacted these provisions with the ultimate purpose of improving the quality of medical care provided in the hospitals of this State." Id., 177 W.Va. at 322, 352 S.E.2d at 71. See Mahmoodian v. United Hospital Center, Inc., 185 W.Va. 59, 65, 404 S.E.2d 750, 756 (1991), cert. denied 502 U.S. 863, 112 S.Ct. 185, 116 L.Ed.2d 146 (1991), (noting that this Code section "evinces a public policy encouraging health care professionals to monitor the competency and professional conduct of their peers in order to safeguard and improve the quality of patient care"). In Daily Gazette, we also quoted from Jenkins v. Wu, 102 Ill.2d 468, 82 Ill.Dec. 382, 388, 468 N.E.2d 1162, 1168 (1984) (holding a similar peer review confidentiality statute did not deny the plaintiffs equal protection) that "[T]he purpose of this legislation is not to facilitate the prosecution of malpractice cases." Id., 177 W.Va. at 322, 352 S.E.2d at 72. The peer review privilege represents a legislative choice between medical staff candor and the plaintiff's access to evidence. 5

Although we recognize that W.Va.Code, 30-3C-1 [1975] et seq. creates a privilege for peer review organizations, we reject City Hospital's argument that the statute is so broad that it prohibits an in camera inspection of the requested material. In Syllabus Point 7, Bennett v. Warner, 179 W.Va. 742, 372 S.E.2d 920 (1988) (reversing a protective order prohibiting the deposing of the appellee's counsel) we said:

Issuance of a broad protective...

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