State ex rel. St. John's Regional v. Dally

• Court: Missouri Court of Appeals
• Writing for the Court: Per Curiam
• Citation: State ex rel. St. John's Regional v. Dally, 90 S.W.3d 209 (Mo. App. 2002)
• Decision Date: 31 October 2002
• Docket Number: No. 24771.,24771.
• Parties: In the Matter of STATE of Missouri ex rel. ST. JOHN'S REGIONAL MEDICAL CENTER, Relator, v. The Honorable David C. DALLY, Respondent.

90 S.W.3d 209

In the Matter of STATE of Missouri ex rel. ST. JOHN'S REGIONAL MEDICAL CENTER, Relator, v. The Honorable David C. DALLY, Respondent.

No. 24771.

Missouri Court of Appeals, Southern District, Division Two.

October 31, 2002.

Motion for Rehearing and Transfer Denied November 22, 2002.

Application for Transfer Denied December 24, 2002.

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Norman M. Krivosha, Robert M. Slovek, Kutak Rock LLP, Omaha, NE, Gretchen A. Long, Joplin, for relator.

Bruce A. Copeland, Copeland & Scott, Joplin, Mathew W. Placzek, Placzek & Francis, Springfield, for respondent.

Joanne E. Joiner, Gerald M. Sill, Jefferson City, amicus curiae in Support of Relator.

Before PREWITT, P.J., RAHMEYER, C.J., and MAUS, S.J.

PER CURIAM.

In an underlying breach of contract suit between St. John's Regional Medical Center ("St. John's") and Missouri Joplin Radiology, Inc. ("MJR"), the Honorable David C. Dally ("Respondent") ordered St. John's to "turn over" to MJR certain "peer review materials." Thereon, St. John's filed an original petition for prohibition in this court seeking to restrain Respondent from enforcing his order. St. John's contends that the requested materials are privileged and not discoverable per § 537.035.¹ We issued our preliminary writ which we now quash.

On July 1, 1990, MJR and St. John's entered into a written contract pursuant to which MJR agreed to provide radiology services in St. John's Hospital. Disputes about each party's performance under this contract first arose in 1997. Finally, on April 11, 2000, MJR filed a breach of contract suit against St. John's. On May 10, 2000, St. John's filed an answer and a counterclaim. In both of its pleadings, St. John's alleged MJR materially breached the contract by, among other things, "failing to participate in ongoing quality assurance program studies involving standards of care rendered in the radiology department in cooperation with the quality assurance department of St. John's, and by failing to prepare and present quality assurance reports at monthly radiology department meetings."

The discovery efforts by MJR included a first and a sixth request for production of documents directed to St. John's. For various reasons, including its claim that the materials sought were privileged per the peer review statute, St. John's objected to thirteen of MJR's requests in its first motion and thirty-two requests in MJR's sixth motion. The following are illustrative (but not all-inclusive) of the types of documents sought by MJR and which St. John's claimed were privileged as peer review materials:

Minutes and reports of all meetings of hospital's quality assurance department/committee between July 1, 1990, and June 30, 2000;

All correspondence, memorandums, or other documents from the Hospital's quality assurance department/committee to the Radiology Department between January 1, 1998, and June 30, 2000;

All quality assurance studies involving standards of care for every department in the Hospital from July 1, 1990, through June 30, 2000;

Any personnel files kept or maintained by or on behalf of St. John's for any physician employed by MJR between July 1, 1990, and June 30, 2000;

Any credentials files kept or maintained by or on behalf of Hospital for any physician employed by MJR between July 1, 1990, and June 30, 2000;

All documents wherein any person or committee at St. John's leveled a quality concern about or against any physician employed by MJR between July 1, 1990, and December 28, 1997;

The parties, being unable to resolve their disputes over discovery, ultimately submitted the matter to Respondent. On January 17, 2002, Respondent found that the § 537.035 peer review privilege applied "only to ... `any judicial or administrative action for failure to provide appropriate care.'" After noting that "[t]his is not such an action[,]" Respondent concluded that the requested peer review material was discoverable and ordered St. John's "to turn over the requested documents to [MJR] with only the names of patients redacted."

Thereon, St. John's petitioned here to prohibit Respondent from enforcing his order directing production of documents. St. John's alleges that Missouri's Peer Review statute, § 537.035, makes the peer review and credentialing documents privileged and non-discoverable even though the underlying suit was for breach of contract; that there is no exception to this statutory privilege; and that in any event, the documents requested are not relevant or reasonably calculated to lead to the discovery of admissible information.

Contrarily, MJR maintains that we should interpret § 537.035 as not shielding the requested documents from discovery because this is a contract action. Additionally, MJR alleges in its answer and then argues in its brief that St. John's waived the privilege otherwise afforded it by § 537.035 because (a) St. John's "injected the issues of quality, quality assurance, quality assurance studies, standards of care, cooperation with St. John's quality assurance department, quality assurance reports and radiology department meetings into this lawsuit by the allegations of its affirmative defenses and counterclaims[,]" and (b) St. John's "used documents which it claims [are] privileged under [§ 537.035] in preparing, educating and examining a non-party deposition witness[.]"

In its reply brief, St. John's points out that "Respondent did not determine [St. John's] waived its right to assert the peer review privilege[ ]" and "[t]he sole basis for ordering production was that the peer review privilege did not apply to an action of this nature." Accordingly, St. John's insists that "the issue of waiver is not relevant to this Prohibition Proceeding." St. John's is simply wrong in this assertion. The petition in prohibition, the answer "directed to the petition," and any motions accompanying the answer form the pleadings in a prohibition proceeding. Rules 97.03 and 97.07, Supreme Court Rules (2002). See State ex rel. Filkey v. Scott, 407 S.W.2d 79, 80[1] (Mo.App.1966). MJR's answer to St. John's petition in prohibition raised the waiver issue and its brief contains a waiver argument. More than that, "[g]iven the discretionary nature of the prohibition remedy, [an appellate court] may accept limitations on the issues or examine new points not offered ab initio." State ex rel. Carver v. Whipple, 608 S.W.2d 410, 412[1] (Mo.banc 1980); State ex rel. O'Brien v. Ely, 718 S.W.2d 177, 180 (Mo.App.1986). When considering prohibition, an appellate court is "not completely circumscribed by the prayer in relator's petition." Whipple, 608 S.W.2d at 412[1].

Here, we need not reach the statutory interpretation question presented by Respondent's ruling, i.e., whether § 537.035 has no application in a contract case, as deciding that issue is not essential to our resolution of the case. We quash our preliminary writ because even if § 537.035 would otherwise have shielded the requested documents from disclosure, St. John's by its conduct has waived such privilege. Moreover, we cannot discern from the record before us the validity, if any, of St. John's claim that the requested documents are not relevant or reasonably calculated to lead to the discovery of admissible evidence.

"Peer review, the process by which physicians and hospitals evaluate and discipline staff doctors, has become an integral component of the health care system in the United States." Bryan v. James E. Holmes Regional Medical Center, 33 F.3d 1318, 1321 (11th Cir.1994). In 1973, the Missouri legislature sought to promote peer review by creating a peer review committee privilege.² Specifically, it enacted § 537.035.4 which provides: "Except as otherwise provided in this section, the proceedings, findings, deliberations, reports, and minutes of peer review committees concerning the health care provided any patient are privileged and shall not be subject to discovery...." The public policy underlying this statutory privilege is to encourage candid and critical analyses of peers' performance by shielding the communications made during the peer review process from disclosure or compulsion. Lester E. Cox Medical Centers v. Darnold, 944 S.W.2d 213, 215 (Mo.banc 1997).

In Health Midwest Development v. Daugherty, 965 S.W.2d 841 (Mo.banc 1998), the Supreme Court of Missouri equated the statutory peer review privilege to other privileges when, in analyzing § 537.035, it characterized all privileges as impediments to the truth and declared that, as such, they are to be strictly construed. Id. at 843[3] In a similar vein, the Daugherty court held that "the general principles that govern [other] privileges[]" are to be used in interpreting § 537.035. Id. at 843. See also Dixon v. Darnold, 939 S.W.2d 66, 70-71 (Mo.App.1997) (holding rule against blanket assertion of work product privilege sufficiently analogous to be applied when hospital attempts to make blanket assertion of peer review privilege).

With the foregoing principles as our guide, we begin our analysis of § 537.035 by considering in whose favor the peer review privilege exists. This we do because it is generally accepted that the privilege of nondisclosure of confidential communications can only be waived by the person or entity in whose favor it exists. In re Marriage of Daneshfar, 953 S.W.2d 95, 102 (Mo.App.1997); Ex parte McClelland, 521 S.W.2d 481, 484-85 (Mo.App. 1975); 81 AM.JUR. Witnesses § 294 (1992). Because § 537.035 is silent about who can assert the privilege and because no Missouri appellate court has addressed this issue, we draw, in part, from cases in other jurisdictions.

It is reasonable to conclude that "[t]he peer review privilege exists to protect the interests of not just one person but rather the entire peer review process (which exists not just for physicians but rather to improve the quality of medical care for all) and all those involved, including peer...