State ex rel. Wheeling Hosp., Inc. v. Wilson

• Decision Date: 09 February 2016
• Docket Number: No. 15–0558.,15–0558.
• Citation: 782 S.E.2d 622
• Parties: STATE of West Virginia ex rel. WHEELING HOSPITAL, INC.; David A. Ghaphery, M.D.; and A.D. Ghaphery Professional Association, Petitioners v. Honorable Ronald E. WILSON, Judge of the Circuit Court of Ohio County, and Stephanie Mills, Respondents.
• Court: West Virginia Supreme Court

782 S.E.2d 622

STATE of West Virginia ex rel. WHEELING HOSPITAL, INC.; David A. Ghaphery, M.D.; and A.D. Ghaphery Professional Association, Petitioners

v.Honorable Ronald E. WILSON, Judge of the Circuit Court of Ohio County, and Stephanie Mills, Respondents.

No. 15–0558.

Supreme Court of Appeals of West Virginia.

Submitted Oct. 7, 2015.

Decided Feb. 9, 2016.

Edmund L. Olszewski, Jr., Dickie, McCamey & Chilcote, P.C., Pittsburgh, PA, Attorney for the Petitioner, Wheeling Hospital, Inc.

Patrick S. Casey, D. Kevin Coleman, Casey & Chapman, PLLC, Wheeling, WV, Attorneys for the Petitioners, David A. Ghaphery, M.D., and A.D. Ghaphery Professional Association.

Christopher J. Regan, J. Zachary Zatezalo, Meaghan L. Tague, Bordas & Bordas, PLLC, Wheeling, WV, Attorneys for the Respondent, Stephanie Mills.

DAVIS

, Justice:

The petitioners herein, Wheeling Hospital, Inc.; David A. Ghaphery, M.D.; and A.D. Ghaphery Professional Association (collectively, "Wheeling Hospital"), seek a writ of prohibition to preclude the enforcement of an order entered February 26, 2015, by the Circuit Court of Ohio County. By that order, the circuit court directed Wheeling Hospital to disclose to the respondent herein, Stephanie Mills ("Ms. Mills"), various documents it claimed to be subject to the peer review privilege. Before this Court, Wheeling Hospital asserts that the documents ordered to be disclosed are protected by the peer review privilege set forth in W. Va.Code § 30–3C–3 (1980)

(Repl. Vol. 2015).¹ Ms. Mills rejects such arguments and contends that the circuit court properly ordered the subject documents be disclosed. Upon our review of the parties' arguments, the appendix record presented for our consideration, and the pertinent authorities, we grant as moulded the requested writ of prohibition.

Specifically, we find that certain of the challenged documents, including those comprising Dr. Ghaphery's request to renew his staff privileges, as well as other documents, are specifically protected by the peer review privilege. With respect to the remaining challenged documents, we conclude that the circuit court did not conduct a thorough in camera review of such documents and that Wheeling Hospital did not provide a privilege log with sufficient detail to permit the circuit court to determine whether such documents are protected by the peer review privilege. Therefore, we prohibit the enforcement of the circuit court's February 26, 2015, order, and further direct Wheeling Hospital to submit a revised privilege log addressing the remaining documents and the circuit court to conduct further in camera proceedings in accordance with this opinion.

I.FACTUAL AND PROCEDURAL HISTORY

This case originated in 2011 when Ms. Mills consulted with Dr. Ghaphery for treatment of a medical condition. On October 13, 2011, Ms. Mills had a thyroidectomy

,² performed by Dr. Ghaphery at Wheeling Hospital. Following the surgery, Ms. Mills had difficulty breathing and swallowing, and was unable to talk. Ms. Mills then consulted with a specialist who informed her that the nerves surrounding her thyroid gland had been severed during her thyroidectomy thus resulting in bilateral vocal cord paralysis.

Ms. Mills thereafter filed suit in the Circuit Court of Ohio County against the petitioners herein, Dr. Ghaphery; A.D. Ghaphery Professional Association; and Wheeling Hospital, Inc., asserting claims for medical negligence; lack of informed consent; and negligent credentialing. Ms. Mills also sought discovery from the named defendants, including documents regarding Dr. Ghaphery's surgeries that he had performed at Wheeling Hospital, and whether such procedures had been accompanied by complications or infections or whether those patients subsequently required readmission to the hospital. Wheeling Hospital failed to respond to Ms. Mills' discovery requests. Ultimately, Ms. Mills filed a motion to compel, which the circuit court granted, ordering Wheeling Hospital to produce a privilege log of the documents it claimed to be exempt from disclosure. The parties reached agreement regarding disclosure of certain of the documents, but approximately 350 documents remained in dispute.

The circuit court then conducted an in camera review of the remaining disputed documents, which Wheeling Hospital claimed were protected by the peer review privilege,³ HIPAA,⁴ and/or evidentiary and discovery rules regarding relevancy.⁵ By order entered February 26, 2015, the circuit court ordered the majority of the disputed documents to be disclosed. In so ruling, the circuit court observed that, while the documents ordered to be disclosed may not be relevant in a typical medical malpractice action, Ms. Mills' addition of a negligent credentialing claim either made such documents relevant or, in view of the liberal discovery rule, such evidence "is ‘reasonably calculated to lead to the discovery of admissible evidence,’ " and, thus, "it is difficult for a judge to draw the line between what may lead to the discovery and what is clearly relevant. State ex rel. Erie Ins. Prop. & Cas. Co. v. Mazzone, 218 W.Va. 593, 597, 625 S.E.2d 355, 359 (2005)

." Accordingly, the circuit court determined that the subject documents should be disclosed because they would either be relevant to Ms. Mills' claims or to Wheeling Hospital's and Dr. Ghaphery's defense thereof.

The court additionally relied upon Ms. Mills' representations that the subject documents satisfied the "original source" exception to the peer review privilege because they "were not created solely for Wheeling Hospital[']s crediting committee but are otherwise available from original sources extraneous to that committee." The court explained further that "these documents contain information that the hospital gathers in the ordinary course of its business, or pursuant to regulations, that the crediting committee then uses in its work." Finally, to address the HIPAA and chilling effect of disclosure concerns raised by Wheeling Hospital, the circuit court limited the discoverable documents to those documents pertaining to Dr. Ghaphery, his surgeries, and their outcomes and which were generated prior to and on October 13, 2011, i.e., the date of Ms. Mills' surgery; required that identifying information for Dr. Ghaphery's other patients be redacted from the disclosed documents; and refused to authorize the disclosure of documents relating to medical procedures performed by other physicians in the hospital. Applying these criteria, the circuit court ordered that the majority of the contested documents be disclosed, while finding that a few such documents were not relevant and thus were not subject to disclosure.

Following this adverse ruling, Wheeling Hospital requests this Court to issue a writ of prohibition to prevent the circuit court from enforcing its February 26, 2015, disclosure order.

II.STANDARD FOR ISSUANCE OF WRIT

In the instant proceeding, Wheeling Hospital requests this Court to issue a writ of prohibition. As an extraordinary remedy, we have cautioned that we reserve such relief for exceptional cases. See State ex rel. Suriano v. Gaughan, 198 W.Va. 339, 345, 480 S.E.2d 548, 554 (1996)

("Mandamus, prohibition and injunction against judges are drastic and extraordinary remedies.... As extraordinary remedies, they are reserved for really extraordinary causes." (internal quotations and citations omitted)). Therefore, "[a] writ of prohibition will not issue to prevent a simple abuse of discretion by a trial court. It will only issue where the trial court has no jurisdiction or having such jurisdiction exceeds its legitimate powers." Syl. pt. 2, State ex rel. Peacher v. Sencindiver, 160 W.Va. 314, 233 S.E.2d 425 (1977). Accord Syl. pt. 1, in part, Hinkle v. Black, 164 W.Va. 112, 262 S.E.2d 744 (1979) ("[T]his Court will use prohibition ... to correct only substantial, clear-cut, legal errors plainly in contravention of a clear statutory, constitutional, or common law mandate which may be resolved independently of any disputed facts and only in cases where there is a high probability that the trial will be completely reversed if the error is not corrected in advance."), superseded by statute on other grounds as stated in State ex rel. Thornhill Grp., Inc. v. King, 233 W.Va. 564, 759 S.E.2d 795 (2014). In this vein, we typically have found challenges to discovery orders involving potentially privileged material to constitute such an exceptional case. See, e.g., Syl. pt. 3, State ex rel. United Stated Fid. & Guar. Co. v. Canady, 194 W.Va. 431, 460 S.E.2d 677 (1995) ("When a discovery order involves the probable invasion of confidential materials that are exempted from discovery under Rule[s] 26(b)(1) and (3) of the West Virginia Rules of Civil Procedure, the exercise of this Court's original jurisdiction is appropriate.").

When ruling on a petition for a writ of prohibition, our determination of the merits of the petition is guided by the multi-faceted analysis adopted by our prior holding in Syllabus point 4 of State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996)

:

In determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the lower tribunal's order is clearly erroneous as a matter of law; (4) whether the lower tribunal's order is an oft repeated error or manifests persistent disregard for either procedural or substantive law; and (5) whether the lower tribunal's order raises new and important problems or issues of law of first impression. These factors are general guidelines that serve as a useful starting point for determining

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