Commissioner of Health Services v. Kadish

O’Connell, J.,

dissenting. I disagree with the decision of the majority and would find no error.

Peer review statutes are intended to encourage frank, uninhibited discussion, debate and criticism by the peers of a health care provider with projected goals of, inter alia, continuing professional education, evaluation of the quality of patient care, renewal of privileges, complaint investigation and malpractice review.1 The peer review committee’s proceedings are designed to be free from the chilling concern that they would become public and expose its members to the involvement of civil litigation and the glare of public attention.

“[Although the privilege is not absolute, the legislative history and judicial decisions in other jurisdictions with similar statutes, although sparse, support a liberal interpretation both as a matter of statutory construction and public policy. See, e.g., Scott v. McDonald, 70 F.R.D. 568 (N.D.Ga. 1976); Eubanks v. Ferrier, 245 Ga. 763, 267, S.E.2d 230, 232 (1980); Young v. Gersten, 56 Ohio Misc. 1, 381 N.E.2d 353 (Ohio C.P. Franklin County, 1978). Indeed, if the purpose of the statute is to encourage doctors to evaluate their peers without fear of disclosure, that purpose would be hampered by public release of any proceedings *583.... The danger of inhibiting candid professional peer review exists by the mere potential for disclosure. Any possibility that proceedings might be discoverable at a future date . . . presents a risk that a doctor will be reluctant to provide the meaningful peer review contemplated by the statute. The overriding importance of these review committees to the medical profession and the public requires that doctors have unfettered freedom to evaluate their peers in an atmosphere of complete confidentiality. No chilling effect can be tolerated if the committees are to function effectively.” Morse v. Gerity, 520 F. Sup. 470, 472 (1981).

In enforcing the plaintiffs subpoena, the majority’s reliance on Commissioner v. William W. Backus Hospital, 40 Conn. Sup. 188, 485 A.2d 937 (1984), is misplaced. That case involved an investigation of a physician, whereas, here, we are concerned with the investigation of a dentist. This seemingly unimportant distinction takes on great significance when General Statutes §§ 38-19a (d), 1-19a and 19a-14d2 are con*584sidered in conjunction with each other. Statutes are to be read together to form one consistent body of law. McKinley v. Musshorn, 185 Conn. 616, 623, 441 A.2d 600 (1981); Budkofsky v. Commissioner of Motor Vehicles, 177 Conn. 588, 592, 419 A.2d 333 (1979). The effect of these three statutes when read together is that records of all health department investigations become public one year after their initiation, except those of physicians which appear to remain immune from disclosure in perpetuity. Thus, the members of the Backus medical peer review committee were not confronted with the eventual public disclosure of their deliberations. 3 Lacking the benefit of such a perpetual privacy shield, it is clear that dental peer review proceedings implicate considerations quite distinct from those of their medical review counterpart.

Determination of the issue now before the court on a technical definition of civil action emasculates the peer review statute. When interpreting a statute, the court should look beyond the literal meaning of its words to its history, the circumstances surrounding its enactment, the mischief it was designed to remedy and the policy underlying it. Board of Education v. Board of Labor Relations, 201 Conn. 685, 690, 519 A.2d 41 *585(1986). The majority’s narrow definition of civil action construes it in isolation from the scheme and purpose of the peer review program.

The position of the majority produces an anomalous result. It permits the dental peer review committee’s deliberation and records eventually to become public after subpoena by the health commissioner. At this point, the cat is out of the bag, so to speak. In a later civil action, however, § 38-19a (d) would preclude this information from being introduced into evidence and committee members would be prohibited from testifying as to the content of the committee proceedings. Statutes are not to be interpreted so as to produce a bizarre or unusual result. State v. Scott, 11 Conn. App. 102, 119, 525 A.2d 1364, cert. denied, 204 Conn. 811, 528 A.2d 1157 (1987); Shelby Mutual Ins. Co. v. Della Ghelfa, 3 Conn. App. 432, 438, 489 A.2d 398 (1985), aff’d, 200 Conn. 630, 636, 513 A.2d 52 (1986). Construing the statute to affirm quashing the commissioner’s subpoena avoids this bizarre result of attempting to close the barn door after the horse is stolen and plugs a hole in the confidentiality of the peer review system. Furthermore, affirmance of the trial court’s decision is consistent with the policy of not construing a statute in a manner that will thwart its purpose. Sutton v. Lopes, 201 Conn. 115, 121, 513 A.2d 139, cert. denied sub nom. McCarthy v. Lopes, 479 U.S. 964, 107 S. Ct. 466, 93 L. Ed. 2d 410 (1986); Breen v. Department of Liquor Control, 2 Conn. App. 628, 631, 481 A.2d 755 (1984).

Additionally, the position of the commissioner of health appears to be that the court must enforce his subpoena upon request. I do not agree. The pertinent part of General Statutes § 19a-14 (a) (10) provides: “If a person refuses to . . . produce any book, or record or document ... a judge of the superior court may make such order as may be appropriate to aid in *586enforcement of this section.” (Emphasis added.) It is elementary, with exceptions not applicable here, that the word may connotes discretionary action as contrasted with shall which implies a duty. Farricielli v. Personnel Appeal Board, 186 Conn. 198, 202, 440 A.2d 286 (1982). In considering discretionary actions of the trial court, appellate review is limited to a determination of whether the trial court abused its discretion. Montanaro Bros. Builders, Inc. v. Snow, 4 Conn. App. 46, 54, 492 A.2d 223 (1985).

I recognize that the conflicting interests of the commissioner of health and the dental peer review committee requires a balancing of these interests by the trial court. “When a matter involving a difficult balancing process has been entrusted to the discretion of the trial court, the scope of appellate review is limited. In any such review ‘every reasonable presumption should be given in favor of the trial court’s ruling’; State v. Ryan, 182 Conn. 335, 337, 438 A.2d 107 (1980); and we should reverse the trial court’s decision ‘only where abuse of discretion is manifest or where an injustice appears to have been done.’ State v. Johnson, [190 Conn. 541, 549, 461 A.2d 981 (1983).]” In re Final Grand Jury Report Concerning the Torrington Police Department, 197 Conn. 698, 714, 501 A.2d 377 (1985). In the present case, the trial court carefully weighed these conflicting interests and decided in favor of the peer review committee. I am unable to find manifest abuse of discretion or an injustice, either of which is a predicate to reversal of the trial court’s decision.

In exercising its discretion, the trial court carefully considered the failure of the commissioner to show that the material sought in the subpoena was not available elsewhere. I concur with this reasoning. The commissioner does not claim that the information sought in his subpoena could be obtained only by invasion of the peer review proceedings. Accordingly, the commis*587sioner may subpoena the peer review members to appear and testify directly at the commissioner’s hearing. See Pisel v. Stamford Hospital, 180 Conn. 314, 317, 430 A.2d 1 (1980).

The trial court did not abuse its discretion when it quashed the subpoena and I would affirm its decision.

For the foregoing reasons, I dissent.

R. Brunell, “Connecticut’s Peer Review Immunity Statute: A Legislative History of P.A. 76-413,” Connecticut Medicine (September 1979).

General Statutes § 38-19a (d) provides: “The proceedings of a medical review committee conducting a peer review shall not be subject to discovery or introduction into evidence in any civil action for or against a health care provider arising out of the matters which are subject to evaluation and review by such committee, and no person who was in attendance at a meeting of such committee shall be permitted or required to testify in any such civil action as to the content of such proceedings; provided the provision of this subsection shall not preclude (1) in any civil action, the use of any writing which was recorded independently of such proceedings; (2) in any civil action, the testimony of any person concerning the facts which formed the basis for the institution of such proceedings of which he had personal knowledge acquired independently of such proceedings; (3) in any health care provider proceedings concerning the termination or restriction of staff privileges, other than peer review, the use of data discussed or developed during peer review proceedings; or (4) in any civil action, disclosure of the fact that staff privileges were terminated or restricted, including the specific restrictions imposed, if any.”

The pertinent part of General Statutes § 1-19 (a) provides: “Except as otherwise provided by any federal law or state statute, all records main*584tained are kept on file by any public agency . . . shall be public records and every person shall have the right to inspect such records . . .

The pertinent part of General Statutes § 19a-14d provides: “All records obtained by the department in connection with any investigation of a person or facility over which the department has jurisdiction under this chapter, other than a physician . . . shall not be subject to the provisions of § 1-19 for a period of one year from the date of the petition or the event initiating such investigation or until such time as the investigation is terminated . . . (Emphasis added.)

This may account for the apparent lack of vigorous opposition by the Backus peer review committee. No appearance was filed on behalf of the defendants in that case; Commissioner v. William W. Backus Hospital, 40 Conn. Sup. 188, 485 A.2d 937 (1984); leaving unanswered the question of how the defendants presented their contention and arguments to which the court referred.