Yuma Regional Medical Center v. Superior Court In and For County of Yuma

• Decision Date: 22 April 1993
• Docket Number: CA-SA,No. 1,1
• Citation: 852 P.2d 1256,175 Ariz. 72
• Parties: YUMA REGIONAL MEDICAL CENTER, a corporation, Petitioner, v. SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF YUMA, the Honorable Tom C. Cole, a judge thereof, Respondent Judge, Olga Isabelle PINZON, a minor, Soraya Pinzon and Jorge Pinzon, individually and as natural parents of Olga Isabelle Pinzon, Real Parties in Interest. 92-0298.
• Court: Arizona Court of Appeals

Page 1256

852 P.2d 1256

175 Ariz. 72

YUMA REGIONAL MEDICAL CENTER, a corporation, Petitioner, v. SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF YUMA, the Honorable Tom C. Cole, a judge thereof, Respondent Judge, Olga Isabelle PINZON, a minor, Soraya Pinzon and Jorge Pinzon, individually and as natural parents of Olga Isabelle Pinzon, Real Parties in Interest.

No. 1 CA-SA 92-0298.

Court of Appeals of Arizona,

Division 1, Department B.

April 22, 1993.

Reconsideration Denied May 28, 1993.

Review Denied June 15, 1993.

[175 Ariz. 73] Slutes, Sakrison, Even, Grant & Pelander, P.C. by Tom Slutes, Tucson, for petitioner.

Leonard & Clancy, P.C. by James J. Leonard, Jr. and Kenneth P. Clancy, and J. Richard Gama, P.C. by J. Richard Gama, Phoenix, for real parties in interest.

Snell & Wilmer by Thea Foglietta Silverstein, Phoenix, for amicus curiae Yuma Regional Medical Center Medical Staff.

OPINION

JACOBSON, Presiding Judge.

The sole issue raised by this petition for special action is whether the trial court's order requiring petitioner to furnish certain information, in accordance with uniform medical malpractice interrogatory # 17, violates the peer review privilege, A.R.S. §§ 36-445 et seq.

FACTS AND PROCEDURAL BACKGROUND

Petitioner Yuma Regional Medical Center (Yuma Regional) is one of several defendants in a medical malpractice action brought by real parties in interest Pinzon (plaintiffs) in Yuma County Superior Court. During the course of discovery, plaintiffs propounded recently adopted uniform medical malpractice interrogatory # 17 on Yuma Regional, basically asking whether any peer review meetings had been held in relation to plaintiff, and, if so, asking Yuma Regional to provide the following:

A. The date and place where it was held.

B. The name of each person present.

C. Whether any written memoranda or minutes were made of the meeting.

D. Please list each written or documentary item submitted to the committee or organization.

E. As to each item set forth in subsection (d) above, please state whether you contend the item is privileged (i.e., not subject to discovery.)

Yuma Regional initially answered interrogatory # 17 in the negative, but later acknowledged that a peer review meeting had been conducted regarding plaintiff.

In October 1992, the trial court, with some alterations, essentially ordered Yuma Regional to answer interrogatory # 17. Yuma Regional objected on the basis that the peer review privilege, A.R.S. §§ 36-445 et seq., prohibited the inquiries requested. The defendant doctors and the Yuma Regional Medical Center medical staff joined in the objection. Subsequently, on December 15, 1992, the trial court entered the order at issue here, requiring Yuma Regional to furnish the following:

1. The date and place where any peer review proceedings were held and at which proceedings the occurrences complained of in this case were discussed;

2. The name of each person present at such proceedings;

3. Whether any written memoranda or minutes were made of such meeting;

4. A list of each written or documentary item submitted to the peer review committee;

5. As to each name and item set forth in numbers 2 and 4 above, please state whether you contend the name or item is privileged (i.e. not subject to discovery). As to any such name or item which you contend is privileged, please promptly furnish the plaintiff with a response with the information which you deemed privileged redacted therefrom and provide the Court with the original of the same in a sealed envelope marked "confidential" and a redacted copy of the same so that the Court may review in camera the claimed privileged material;

6. Whether a physician's privileges were changed or disciplinary action taken against a physician whose conduct or actions was a subject matter of the peer review proceedings.

Yuma Regional then petitioned this court for special action relief, contending that the trial court abused its discretion because its December 15th order violated §§ 36-445 et seq. See generally Rule 3, Arizona Rules of Procedure for Special Actions. On January 11, 1993, we accepted jurisdiction of this special action and in part granted the relief requested, stating that this opinion would follow.

SPECIAL ACTION JURISDICTION

Generally, special action relief is inappropriate for resolving discovery disputes. Lang v. Superior Court, 170 Ariz. 602, 604, 826 P.2d 1228, 1230 (App.1992). In such cases, a direct appeal is considered an adequate post-trial remedy. Id. In this case, however, an appeal cannot remedy the damage that will have been done if Yuma Regional is compelled to disclose otherwise privileged information. Cf. Avila v. Superior Court, 169 Ariz. 49, 50, 816 P.2d 946, 947 (App.1991). Moreover, this is a purely legal question that has statewide importance because of its genesis in uniform interrogatory # 17. See State ex rel. McDougall v. Superior Court, 173 Ariz. 385, 843 P.2d 1277 (App.1992). Consequently special action relief is appropriate in this case.

DISCUSSION

As noted, we granted Yuma Regional part of the relief it requested. Specifically, we found the information requested in items 2, 4, and 5 of the trial court's December 15, 1992 order to be protected by the peer review privilege, but directed Yuma Regional to comply with the remainder of the order. We address each item in turn.

Item 2: Names of Persons Present

Item 2 of the trial court's order requests disclosure of the names of each person present at the peer review proceeding. Yuma Regional and its medical staff object to this request on the basis that such disclosure will lead to a marked disinclination on the part of physicians to appear at peer review proceedings.

A.R.S. § 36-445.01(A) provides, in pertinent part:

All proceedings, records and materials prepared in connection with the reviews provided for in § 36-445, including all peer reviews of individual health care providers ... and the records of such reviews, shall be confidential and shall not be subject to discovery....

Although interpreting the scope of the peer review privilege is not unlike trying to draw a bright line in shifting sand, this court has previously held that this privilege "protects the peer review process itself--the discussions, exchanges and opinions found in the committee minutes." Humana Hosp. Desert Valley v. Superior Court, 154 Ariz. 396, 401, 742 P.2d 1382, 1387 (App.1987). Put another way, it protects "the internal workings and deliberative processes of regularly constituted committees...." Id. at 403, 742 P.2d at 1389.

Important policy considerations underlie the protection afforded by the peer review privilege. The legislature has mandated that peer reviews be conducted "for the purposes of reducing morbidity and mortality and for the improvement of the care of patients...." A.R.S. § 36-445. However, doctors are somewhat reluctant to engage in peer review.

Review by one's peers within a hospital is not only time consuming, unpaid work, it is also likely to generate bad feelings and result in unpopularity.

Humana Hospital, 154 Ariz. at 400, 742 P.2d at 1386, citing Scappatura v. Baptist Hosp., 120 Ariz. 204, 210, 584 P.2d 1195, 1201 (App.1978). Consequently, these reviews will effectively terminate if they are subject to unlimited discovery processes. Humana Hospital, 154 Ariz. at 400, 742 P.2d at 1386.

Plaintiffs acknowledge the scope of the peer review privilege and the policy behind it, but contend that neither are violated by disclosure of the names of the persons present at the peer review proceeding. This brings us then to a threshold question: why do plaintiffs want the names of the persons present at this proceeding? We believe the answer is two-fold.

First, it is entirely conceivable that revelation of a particular participant at the proceeding will ipso facto reveal what was discussed--specifically in the case of specialists--thereby allowing plaintiffs to indirectly discover the nature of the testimony, although they cannot discover this directly. See generally Humana Hospital, supra.

Second, § 36-445.01(A) prohibits the subpoenaing of a participant in a peer review proceeding if the subpoena is based solely on peer review activities. If plaintiffs have a basis outside the peer review process to subpoena a person who participated in the proceeding, plaintiffs can a fortiori discover that basis outside the peer review process. Again, we see no benefit to disclosure of the participants in the proceeding to plaintiffs except as an attempt to ascertain what occurred in the peer review process and thus thwart the privilege.

Plaintiffs are free to depose any of the defendants in this matter and to retain experts to give opinions regarding any issue raised. We simply see no reason to disclose the names of the participants in a peer review proceeding other than to somehow discover information relevant to that proceeding. We hold that the trial court's order that Yuma Regional disclose the names of the persons present at the peer review proceeding at issue in this case violates the peer review privilege.

Item 4: List of Written or Documentary Items Submitted

Item 4 of the court's order requests Yuma Regional to furnish a list of each written or documentary item submitted to the peer review committee. Again, Yuma Regional and its medical staff argue that compliance with this order will severely inhibit the peer review process.

As plaintiffs note, the peer review privilege does not protect information that originated outside the peer review process and that is discoverable from alternative sources. Humana Hospital, 154 Ariz. at 400-01, 742 P.2d at 1386-87; see also John C. Lincoln Hosp. v. Superior Court, 159 Ariz. 456, 459, 768 P.2d 188, 191 (App.1989). The fact that a peer review committee has obtained information does not render that information privileged if it was not previously privileged. Humana Hospital, 154 Ariz. at...