Terre Haute Regional Hosp., Inc. v. Basden

• Decision Date: 28 June 1988
• Docket Number: No. 61A01-8802-CV-43,61A01-8802-CV-43
• Citation: 524 N.E.2d 1306
• Court: Indiana Appellate Court
• Parties: TERRE HAUTE REGIONAL HOSPITAL, INC., Defendant-Appellant, v. Loretta I. BASDEN, Plaintiff-Appellee.

Page 1306

524 N.E.2d 1306

TERRE HAUTE REGIONAL HOSPITAL, INC., Defendant-Appellant, v. Loretta I. BASDEN, Plaintiff-Appellee.

No. 61A01-8802-CV-43.

Court of Appeals of Indiana,

First District.

June 28, 1988.

John D. Nell, Julie L. Michaelis, Wooden, McLaughlin & Sterner, Indianapolis, for defendant-appellant.

Henry J. Price, Mary A. Findling, Price & DeLaney, Indianapolis, Eric A. Frey, Frey, Hunt, Hassler & Lorenz, Terre Haute, for plaintiff-appellee.

RATLIFF, Chief Judge.

STATEMENT OF THE CASE

Terre Haute Regional Hospital, Inc. (hereinafter THRH) appeals from the Parke Circuit Court's order compelling THRH to respond to Loretta I. Basden's discovery requests. We reverse in part, and affirm in part.

FACTS

In May of 1979, Dr. Manuel A. Cacdac performed extensive lumbar surgery on Loretta I. Basden at THRH. In August of 1981, Dr. Cacdac again operated on Basden. Basden sued Dr. Cacdac and that suit is pending in the Clay Circuit Court. On November 11, 1982, Basden filed the present action against the Hospital Corporation of America, and THRH. On October 12, 1987, Basden filed a Motion to Compel. Basden requested that the trial court order THRH to answer interrogatories and to produce requested documents. Basden requested also that William Giermak, Hospital Administrator for THRH, be directed to answer oral deposition questions he refused to answer. THRH and Giermak had objected previously to the specific discovery requests and challenged the Motion to Compel. THRH and Giermak argued that Basden's requested discovery sought information: (a) that involved communications and materials prepared by and for THRH's peer review committees, and accordingly was confidential and privileged material under Indiana's Peer Review Statute, Indiana Code section 34-4-12.6-1 et seq.; or (b) that involved events that occurred after Basden's 1981 surgery and that concerned medical procedures that were not similar to Basden's surgeries, and accordingly, was irrelevant and not reasonably calculated to lead to the discovery of admissible evidence in violation of Indiana Rules of Procedure, Trial Rule 26(B). Both parties submitted briefs and the trial court held a hearing on Basden's Motion to Compel. The trial court granted Basden's motion and, after rephrasing the original order, directed THRH and Giermak to provide answers to the interrogatories and deposition questions, and to produce the requested documents. THRH obtained a certification from the trial court, and brought this interlocutory appeal challenging the grant of Basden's Motion to Compel.

ISSUES

THRH raised three (3) issues which this court has combined and rephrased into the following two (2) issues:

1. Whether the trial court erred by ordering THRH and Giermak to comply with Basden's discovery requests which sought 2. Whether the trial court erred by ordering THRH to provide information (a) regarding events which occurred after Basden's surgery, and (b) regarding procedures which were not substantially similar to the procedures performed on Basden?

information that involved communications and materials compiled for and by THRH's peer review committees during investigations of the practices of health care providers?

DISCUSSION AND DECISION

Issue One

THRH argues first that the trial court's order improperly directs THRH and Giermak to provide Basden with information that is confidential and privileged under Indiana's Peer Review Statute, Indiana Code section 34-4-12.6-1 et seq. Indiana Code section 34-4-12.6-2 provides in part, as follows:

"Confidentiality and privilege.--(a) All proceedings of a peer review committee shall be confidential, and all communications to a peer review committee shall be privileged communications to the peer review committee. Neither the personnel of a peer review committee nor any participant in a proceeding therein shall reveal any content of communications to, or the records or determination of, a peer review committee outside the peer committee. However, the governing board of a hospital or professional health care organization may disclose the final action taken with regard to a professional health care provider without violating the provisions of this section. Except as otherwise provided in this chapter, no person who was in attendance at any such peer review committee proceeding shall be permitted or required to disclose any information acquired in connection with or in the course of such proceeding, or to disclose any opinion, recommendation, or evaluation of the committee or of any member thereof. Information otherwise discoverable or admissible from original sources is not to be construed as immune from discovery or use in any proceeding merely because it was presented during proceedings before such peer review committee, nor is a member, employee, or agent of such committee or other person appearing before it to be prevented from testifying as to matters within his knowledge and in accordance with the other provisions of this chapter, but the witness cannot be questioned about this testimony or other proceedings before such committee or about opinions formed by him as a result of committee hearings....

"(c) Except in cases of required disclosure to the professional health care provider under investigation, no records or determinations of, or communications to, a peer review committee shall be:

(1) Subject to subpoena or discovery; or

(2) Admissible in evidence;

in any judicial or administrative proceeding, including a proceeding under IC 16-9.5-10, without a prior waiver executed by the committee. Except in cases as authorized in this chapter, the evidentiary privileges created by this section shall be invoked by all witnesses and organizations in all judicial and administrative proceedings unless the witness or organization first has a waiver of the privilege executed in writing, on behalf of the peer review committee holding the privilege, by its chairman, vice chairman, or secretary."

This section clearly and unambiguously prohibits the disclosure of the determinations of, and communications to a peer review committee, subject to specified exceptions. In the present case, THRH objected to several of Basden's interrogatories and requests for production on the ground that the information was confidential and privileged under the Peer Review Statute. Record at 20-64; Interrogatory Nos. 55-58, 63(d), 68-72, 79; Request for Production Nos. 9-11, 15, 20, 25. Giermak objected to several deposition questions on the same basis. Record at 160. These objections were proper because the discovery requests sought disclosure of information involving the proceedings and determinations of a peer review committee and information involving communications to a peer review committee. Therefore, the trial court abused its discretion by ordering THRH and Giermak to respond to those interrogatories, requests for production, and deposition questions which were objected to on the basis that they sought confidential and privileged materials in violation of Indiana's Peer Review Statute.

Basden advances five (5) arguments that suggest that the confidentiality and privilege section is inapplicable to the present case. ¹ First, Basden argues that the confidentiality and privilege provided to peer review proceedings determinations and communications is limited by a "good faith" requirement, and relies upon the wording found in Ind.Code Sec. 34-4-12.6-3, which provides in part as follows:

"Immunity.--(a) There shall be no liability on the part of, and no action of any nature shall arise against, the personnel of a peer review committee for any act, statement made in the confines of the committee, or proceeding thereof made in good faith in regard to evaluation of patient care as that term is defined and limited in section 1(b) [34-4-12.6-1(b) ] of this chapter.

"(b) Notwithstanding any other law, a peer review committee, an organization, or any other person who, in good faith and as a witness or in some other capacity, furnishes records, information, or assistance to a peer review committee that is engaged in:

(1) The evaluation of the qualifications, competence, or professional conduct of a professional health care provider; or

(2) The evaluation of patient care; is immune from any civil action arising from the furnishing of the records, information, or assistance, unless the person knowingly furnishes false records or information.

"(c) The personnel of a peer review committee shall be immune from any civil action arising from any determination made in good faith in regard to evaluation of patient care as that term is defined and limited in section (b) of this chapter.

"(d) No restraining order or injunction shall be issued against a peer review committee or any of the personnel thereof to interfere with the proper functions of the committee acting in good faith in regard to evaluation of patient care as that term is defined and limited in section 1(b) of this chapter."

Basden concludes that since this section limits the immunity afforded under the Act, the legislature also intended to limit and create an exception to the confidentiality and privilege protection provided in I.C. Sec. 34-4-12.6-2. Basden's conclusion is mistaken. A similar conclusion was rejected by the Colorado Supreme Court in Franco v. District Court (1982), Colo., 641 P.2d 922. In Franco, the Colorado Supreme Court, in interpreting a peer review statute that contains similar privilege and immunity sections, opined as follows:

"The petitioner alternatively argues that the peer review privilege, to the extent applicable to his pending suit, should be limited to good faith actions by committee members. We find this argument unpersuasive.

"A statute must be construed 'in order that the true intent and meaning of the general assembly may be fully carried out.' Section 2-4-212, C.R.S.1973. Although section 12-43.5-103(2) restricts the immunity granted to...