IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 37574-2010
JOSEPH M. VERSKA, M.D., and THE )
SPINE INSTITUTE OF IDAHO, ) Boise, September 2011 Term
)
Plaintiffs-Appellants, ) 2011 Opinion No. 115
)
v. ) Filed: November 9, 2011
)
SAINT ALPHONSUS REGIONAL ) Stephen W. Kenyon, Clerk
MEDICAL CENTER; CHRISTIAN G. )
ZIMMERMAN, M.D.; and DONALD FOX, )
M.D., )
)
Defendants-Respondents. )
)
Appeal from the District Court of the Fourth Judicial District of the State of
Idaho, in and for Ada County. The Hon. Deborah A. Bail, District Judge.
The order of the district court is affirmed.
Raymond D. Powers; Powers Tolman, PLLC; Boise; argued for appellants.
Brad Fisher; Davis Wright Tremaine, LLP; Seattle, Washington; argued for
respondents.
EISMANN, Justice.
This is a permissive appeal from an order of the district court holding that the statute
making peer review records privileged applies, by its terms, to a lawsuit brought against a
hospital claiming that the hospital acted in bad faith in refusing to renew a physician’s privileges.
We affirm the order of the district court.
I.
Factual Background
Joseph Verska, M.D., (Physician) is an orthopedic spine surgeon licensed in the State of
Idaho. On January 22, 1996, he was appointed to the medical staff of Saint Alphonsus Regional
Medical Center (Hospital) located in Boise. Thereafter, he was continually reappointed through
June 30, 2008.
As required by Idaho law, Hospital caused its medical staff to organize in-hospital
medical staff committees to review the professional practices of members of the Hospital’s
medical staff for the purpose of reducing morbidity and mortality and for the improvement of the
care of patients in the hospital. After a series of reviews of Physician’s practice initiated in 2004
by Hospital and in 2006 and 2007 by its Medical Executive Committee, on July 9, 2008,
Physician requested a hearing before a Fair Hearing Panel. After an evidentiary hearing in late
October 2008, the panel made recommendations, which were rejected by Hospital. Since July 1,
2008, Physician has not had privileges at Hospital.
On July 23, 2009, Physician and The Spine Institute of Idaho, a professional corporation
created by Physician, (Plaintiffs) filed this action against Hospital and physicians Christian G.
Zimmerman and Donald Fox (herein collectively called “Defendants”). Plaintiffs alleged that
Defendants conspired to wrongfully harm them, intentionally and/or negligently interfered with
their economic advantage, interfered with Physician’s prospective contractual relations and
business expectations, defamed them, and intentionally and/or negligently inflicted emotional
distress upon Physician. Plaintiffs also alleged that Hospital and Dr. Fox breached the implied
covenant of good faith and fair dealing and that Hospital denied Physician fair procedure rights,
breached its fiduciary duties, and violated his due process rights. In addition to damages,
Plaintiffs sought an injunction requiring Hospital to restore Physician’s privileges.
During this litigation, Plaintiffs initiated discovery related to the process, activities, and
decisions that led to Hospital’s decision to deny Physician’s application to be reappointed to the
medical staff and to have his privileges renewed. Hospital objected on the ground that such
information was protected by the peer review privilege. Plaintiffs filed a motion seeking to
compel discovery, and Defendants sought a motion for a protective order. On February 5, 2010,
the district court entered an order denying the motion to compel and granting the protective
order. The court determined, “I.C. § 39-1392b unambiguously protects all peer review records
from discovery of any type and bars any testimony about those peer review records.” This Court
granted Plaintiffs’ request for a permissive appeal of that order pursuant to Idaho Appellate Rule
12.
2
We grant such appeals only in the most exceptional cases. Aardema v. U.S. Dairy
Systems, Inc., 147 Idaho 785, 789, 215 P.3d 505, 509 (2009). The factors we consider are as
follows:
In accepting or rejecting an appeal by certification under I.A.R. 12, this Court
considers a number of factors in addition to the threshold questions of whether
there is a controlling question of law and whether an immediate appeal would
advance the orderly resolution of the litigation. It was the intent of I.A.R. 12 to
provide an immediate appeal from an interlocutory order if substantial legal issues
of great public interest or legal questions of first impression are involved. The
Court also considers such factors as the impact of an immediate appeal upon the
parties, the effect of the delay of the proceedings in the district court pending the
appeal, the likelihood or possibility of a second appeal after judgment is finally
entered by the district court, and the case workload of the appellate courts. No
single factor is controlling in the Court’s decision of acceptance or rejection of an
appeal by certification, but the Court intends by Rule 12 to create an appeal in the
exceptional case and does not intend by the rule to broaden the appeals which
may be taken as a matter of right under I.A.R. 11.
Budell v. Todd, 105 Idaho 2, 4, 655 P.2d 701, 703 (1983). In this case, the order of the district
court involved a matter of first impression, the issues raised were controlling questions of law, an
immediate appeal would advance the orderly resolution of the litigation, and it would decrease
the likelihood of a second appeal. Because of the nature of an interlocutory appeal, we address
only the precise question that was presented to and decided by the trial court. Winn v. Frasher,
116 Idaho 500, 501, 777 P.2d 722, 723 (1989).
II.
Does Idaho Code Section 39-1392b Apply to This Case?
A peer review privilege is created by Idaho Code section 39-1392b, which provides:
Except as provided in section 39-1392e, Idaho Code, all peer review
records shall be confidential and privileged, and shall not be directly or indirectly
subject to subpoena or discovery proceedings or be admitted as evidence, nor
shall testimony relating thereto be admitted in evidence, or in any action of any
kind in any court or before any administrative body, agency or person for any
purpose whatsoever. . . .
It is undisputed that the records sought by Plaintiffs are peer review records. The statute
states that “all peer review records shall be confidential and privileged.” It further provides that
such records “shall not be directly or indirectly subject to subpoena or discovery proceedings or
3
be admitted as evidence, nor shall testimony relating thereto be admitted in evidence.” The
privilege applies “in any action of any kind in any court.” Thus, by its terms, the statute applies
to this litigation.
Plaintiffs contend that Hospital is a business; that it developed an in-house entity named
the “Spine Medicine Institute of Idaho,” which competes with Plaintiffs; that Hospital’s actions
in denying Physician privileges were motivated by the desire to remove him as a competitor; and
that for public policy reasons the statute therefore should not apply. The statute does not create
an exception for this type of litigation, and we cannot create such an exception under the rubric
of public policy. The creation of such an exception is an issue within the province of the
legislature.
The act creating the peer review privilege, I.C. §§ 39-1392 through 39-1392e, was
enacted in 1973. Plaintiffs contend that the statement of purpose accompanying that legislation
indicates that it was intended to apply only to medical malpractice actions. The statement of
purpose was not enacted into law. The statutes were. There is no wording in section 39-1392b
that limits its scope to peer review records sought in a medical malpractice action. In that
respect, the legislation is unambiguous.
“The asserted purpose for enacting the legislation cannot modify its plain meaning. The
scope of the legislation can be broader than the primary purpose for enacting it.” Viking Constr.,
Inc. v. Hayden Lake Irr. Dist., 149 Idaho 187, 191-92, 233 P.3d 118, 122-23 (2010). “If the
statute as written is socially or otherwise unsound, the power to correct it is legislative, not
judicial.” In re Estate of Miller, 143 Idaho 565, 567, 149 P.3d 840, 842 (2006). The
interpretation of a statute “must begin with the literal words of the statute; those words must be
given their plain, usual, and ordinary meaning; and the statute must be construed as a whole. If
the statute is not ambiguous, this Court does not construe it, but simply follows the law as
written.” State v. Schwartz, 139 Idaho 360, 362, 79 P.3d 719, 721 (2003) (citations omitted).
“We have consistently held that where statutory language is unambiguous, legislative history and
other extrinsic evidence should not be consulted for the purpose of altering the clearly expressed
intent of the legislature.” City of Sun Valley v. Sun Valley Co., 123 Idaho 665, 667, 851 P.2d
961, 963 (1993).
Plaintiffs also contend that wording in subsections (a) through (e) of Idaho Code section
39-1392e indicate that the peer review statutes were intended only to apply to medical
4
malpractice actions. Those subsections specifically apply in medical malpractice actions. 1
Subsection (f) clearly is not limited to medical malpractice actions. For example, it applies to
“any physician . . . whose conduct . . . is the subject of investigation . . . in the course of . . .
1
Idaho Code sections 39-1392e(a)-(e), with the provisions upon which Plaintiffs rely highlighted, provide as
follows:
(a) In the event of a claim or civil action against a physician, emergency medical
services personnel, a hospital or a skilled nursing facility arising out of a particular physician-
patient, emergency medical services personnel-patient, hospital-patient relationship, or skilled
nursing facility-patient, or which concerns the sufficiency of the delivery of particular health care
to a specific patient, any health care organization having information of the kind covered by
section 39-1392b, Idaho Code, shall, when interrogated as hereinafter provided, advise any such
claimant who is or was such a patient or who, in a representative capacity, acts on behalf of such
patient or his heirs, as follows :
(1) Whether it has conducted or has in progress an inquiry, proceeding or disciplinary matter
regarding the quality or propriety of the health care involved, which concerns the subject patient
while he was under the care or responsibility of a member of such health care organization or
while he was a patient in such hospital or facility; and, if so,
(2) Whether disposition of any kind resulted or will result therefrom; and, if so,
(3) What the disposition was, or, if not yet determined, approximately when it will be determined.
Such disclosure of information shall be limited to the health care organization's actions in
connection with the physician, emergency medical services personnel, hospital or skilled nursing
facility against whom such claim is asserted.
(b) Such a claimant shall likewise be entitled to inquire of such health care organization
respecting the names and addresses of persons who such health care organization knows to have
direct knowledge of the provision of the health care in question, such inquiry to be limited,
however, to the particular patient and the particular times and occasions germane to the specific
occurrences on which the claim is based; provided, names shall not be disclosed respecting
persons who have gained secondary knowledge or formed opinions respecting the matter solely by
participating as witnesses, officials, investigators or otherwise on, for, or in connection with such a
health care organization committee, staff, governing board or the state board of medicine.
(c) Such limited, conditional discovery and disclosure of information as provided above
shall be allowed only in response to inquiries directed to such a health care organization, and then
only if initially propounded by a claimant of the type above described. If the matter is in
litigation, inquiry may be by customary means of discovery under the Idaho rules of civil
procedure, or, if pending in a United States court, then under discovery as allowed by its
applicable rules; provided, pendency of the claim in the United States court or before any other
tribunal shall not operate to broaden the exception to the rules of privilege, confidentiality and
immunity set down in this act.
(d) Such disclosures may be voluntarily made without judicial order or formal discovery
if all disciplined, accused or investigated physicians or emergency medical services personnel
consent thereto, and if privileged or confidential information regarding any other patient,
physician, emergency medical services personnel, or person will not be disclosed thereby. When
the terms of this paragraph are complied with, such voluntary disclosures may be made without
civil liability therefor as if in due response to valid judicial process or order.
(e) If any claimant makes such inquiry of any such health care organization, he shall be
deemed to have consented to like inquiry and disclosure rights for the benefit of all parties
against whom he asserts such claim or brings such suit or action, and all other persons who are
parties to such action, and thereafter all such persons and parties may invoke the provisions of this
section, seeking and securing specific information as herein provided for the benefit of such
claimant, to the same extent as the same is allowed to such claimant.
5
disciplinary proceeding or investigation of the sort contemplated by this act, [who] makes claim
or brings suit on account of such health care organization activity.” I.C. § 39-1392e(f).
Likewise, section 39-1392b, which creates the peer review privilege, is not, by its terms, limited
to medical malpractice actions. The fact that a portion of a statute has a restricted application
does not similarly restrict the entire act of which that portion was a part.
III.
Does This Court Have the Authority To Modify an Unambiguous Statute
If the Result of Applying It As Written is Palpably Absurd?
Plaintiffs quote from Federated Publications, Inc. v. Idaho Business Review, Inc., 146
Idaho 207, 210, 192 P.3d 1031, 1034 (2008), wherein we stated, “Unless the result is palpably
absurd, this Court must assume that the legislature meant what it wrote in the statute.” Relying
upon that quote, they contend, “The literal wording of a statute cannot be honored if it creates
unreasonable, absurd results . . . .” They then argue that applying Idaho Code section 39-1392b
to bar their access to the peer review records would be an absurd result.
The language upon which Plaintiffs rely had its genesis in State, Department of Law
Enforcement v. One 1955 Willys Jeep, 100 Idaho 150, 595 P.2d 299 (1979). That case involved
the timing of a hearing in contested asset forfeiture proceedings under the Uniform Controlled
Substances Act. A party contesting the asset forfeiture was required to file a verified answer.
The statute in question stated, “If a verified answer is filed, the forfeiture proceeding shall be set
for hearing before the court without a jury on a day not less than thirty (30) days therefrom; and
the proceeding shall have priority over other civil cases.” I.C. § 37-2744(d)(3)(D). In Willys
Jeep, the party contesting the forfeiture filed a motion to dismiss the proceedings, contending
that the hearing had not been held within thirty days of the filing of the verified answer as
required by the statute. The magistrate court denied the motion to dismiss because the clear
wording of the statute required the hearing to be at least thirty days after the verified answer was
filed, not within ninety days of filing the verified answer. The district court reversed, holding
that the hearing must be held within thirty days of the filing of the verified answer in spite of the
statute’s literal language, stating that once the verified answer was filed, the hearing was to be
“not less than thirty (30) days therefrom.” Willys Jeep, 100 Idaho at 151, 595 P.2d at 300. In
reversing the district court on appeal, this Court stated:
6
The most fundamental premise underlying judicial review of the
legislature’s enactments is that, unless the result is palpably absurd, the courts
must assume that the legislature meant what it said. Where a statute is clear and
unambiguous the expressed intent of the legislature must be given effect. Worley
Highway Dist. v. Kootenai County, 98 Idaho 925, 576 P.2d 206 (1978); Moon v.
Investment Board, 97 Idaho 595, 548 P.2d 861 (1976); Herndon v. West, 87 Idaho
335, 393 P.2d 35 (1964). Referring to a virtually identical Arizona statute, the
Arizona court stated that the purpose of the statute was to provide “the law
enforcement agencies with 30 days in which to prepare prosecution of their case.”
State ex rel. Berger v. McCarthy, 113 Ariz. 161, 164, 548 P.2d 1158, 1161
(1976). Likewise, the Idaho legislature may have intended to provide the state
with a thirty day period in which to prepare its case. A literal reading of the
statute is not necessarily irrational or absurd. Therefore, the statute must be
interpreted as written.
Id. (footnote omitted).
The Willys Jeep Court began its analysis by stating, “The most fundamental premise
underlying judicial review of the legislature’s enactments is that, unless the result is palpably
absurd, the courts must assume that the legislature meant what it said.” Id. at 153, 595 P.2d at
302. It concluded its analysis by stating: “A literal reading of the statute is not necessarily
irrational or absurd. Therefore, the statute must be interpreted as written.” Id. at 154, 595 P.2d
at 303. Because there was no contention that the statute was ambiguous, the Court was stating
that it must interpret an unambiguous statute as written, unless the result of doing so is palpably
absurd. The Court did not cite any authority for that statement.
None of the three cases cited—Worley Highway District, Moon, and Herndon—support
that statement. In Worley Highway District, we said, “ ‘This Court has consistently adhered to
the primary canon of statutory construction that where the language of the statute is
unambiguous, the clear expressed intent of the legislature must be given effect and there is no
occasion for construction.’ ” 98 Idaho at 928, 576 P.2d at 209 (quoting State v. Riley, 83 Idaho
346, 349, 362 P.2d 1075, 1076-77 (1961)). In Moon, we said, “where a statute or constitutional
provision is plain, clear, and unambiguous, it ‘speaks for itself and must be given the
interpretation the language clearly implies.’ ” 97 Idaho at 596, 548 P.2d at 862 (quoting State v.
Jonasson, 78 Idaho 205, 210, 299 P.2d 755, 757 (1956)). In Herndon, we said: “We must
follow the law as written. If it is socially or economically unsound, the power to correct it is
legislative, not judicial.” 87 Idaho at 339, 393 P.2d at 37.
7
In the Willys Jeep case, the Court simply made a misstatement. If this Court were to
conclude that an unambiguous statute was palpably absurd, how could we construe it to mean
something that it did not say? Doing so would simply constitute revising the statute, but we do
not have the authority to do that. The legislative power is vested in the senate and house of
representatives, Idaho Const. art. III, § 1, not in this Court. As we said in Berry v. Koehler, 84
Idaho 170, 177, 369 P.2d 1010, 1013 (1962), “The wisdom, justice, policy, or expediency of a
statute are questions for the legislature alone.”
We have recited the language from the Willys Jeep case or similar language numerous
times, usually without even addressing whether we considered the unambiguous statute absurd as
written. See State v. Urrabazo, 150 Idaho 158, 244 P.3d 1244 (2010); Statewide Constr., Inc. v.
Pietri, 150 Idaho 423, 247 P.3d 650 (2011); Viking Constr., Inc. v. Hayden Lake Irrigation Dist.,
149 Idaho 187, 233 P.3d 118 (2010); State v. Pina, 149 Idaho 140, 233 P.3d 71 (2010); Kootenai
Hosp. Dist. v. Bonner County Bd. of Comm’rs, 149 Idaho 290, 233 P.3d 1212 (2010); Farber v.
Idaho State Ins. Fund, 147 Idaho 307, 208 P.3d 289 (2009); Federated Publ’ns, Inc. v. Idaho
Business Review, Inc., 146 Idaho 207, 192 P.3d 1031 (2008); State Dept. of Health and Welfare
v. Hudelson, 146 Idaho 439, 196 P.3d 905 (2008); State v. Mubita, 145 Idaho 925, 188 P.3d 867
(2008); State v. Hensley, 145 Idaho 852, 187 P.3d 1227 (2008); In re Daniel W., 145 Idaho 677,
183 P.3d 765 (2008); Mattoon v. Blades, 145 Idaho 634, 181 P.3d 1242 (2008); State v. Kimball,
145 Idaho 542, 181 P.3d 468 (2008); State v. Parkinson, 144 Idaho 825, 172 P.3d 1100 (2007);
State v. Grazian, 144 Idaho 510, 164 P.3d 790 (2007); In re Estate of Miller, 143 Idaho 565, 149
P.3d 840 (2006); Kirkland v. State, 143 Idaho 544, 149 P.3d 819 (2006); Employers Res. Mgmt.
Co. v. Department of Ins., 143 Idaho 179, 141 P.3d 1048 (2006); McNeal v. Idaho Pub. Utils.
Comm’n, 142 Idaho 685, 132 P.3d 442 (2006); Rahas v. Ver Mett, 141 Idaho 412, 111 P.3d 97
(2005); Kootenai Med. Ctr. v. Bonner County Comm’rs, 141 Idaho 7, 105 P.3d 667 (2004); State
v. Thompson, 140 Idaho 796, 102 P.3d 1115 (2004); Garza v. State, 139 Idaho 533, 82 P.3d 445
(2003); Dyet v. McKinley, 139 Idaho 526, 81 P.3d 1236 (2003); State v. Schwartz, 139 Idaho
360, 79 P.3d 719 (2003); Inama v. Boise County ex rel. Bd. of Comm’rs, 138 Idaho 324, 63 P.3d
450 (2003); State v. Jeppesen, 138 Idaho 71, 57 P.3d 782 (2002); Ahles v. Tabor, 136 Idaho 393,
34 P.3d 1076 (2001); State v. Daniel, 132 Idaho 701, 979 P.2d 103 (1999); State v. Knott, 132
Idaho 476, 974 P.2d 1105 (1999); Idaho Dep’t of Health and Welfare v. Jackman, 132 Idaho
213, 970 P.2d 6 (1998); City of Sun Valley v. Sun Valley Co., 123 Idaho 665, 851 P.2d 961
8
(1993); In re Application for Permit No. 36-7200, 121 Idaho 819, 828 P.2d 848 (1992);
Sherwood v. Carter, 119 Idaho 246, 805 P.2d 452 (1991); George W. Watkins Family v.
Messenger, 118 Idaho 537, 797 P.2d 1385 (1990); In re Miller, 110 Idaho 298, 715 P.2d 968
(1986); and Parker v. Wallentine, 103 Idaho 506, 650 P.2d 648 (1982).
In several cases, we have responded to arguments that the wording of an unambiguous
statute would produce an absurd result, but we have never agreed with such arguments. See
Idaho Dep’t of Health and Welfare v. Doe, 151 Idaho 300, 256 P.3d 708 (2011); State v. Doe,
147 Idaho 326, 208 P.3d 730 (2009); St. Luke’s Reg’l Med. Ctr., Ltd. v. Board of Comm’rs, 146
Idaho 753, 203 P.3d 683 (2009); Glaze v. Deffenbaugh, 144 Idaho 829, 172 P.3d 1104 (2007);
State v. Yzaguirre, 144 Idaho 471, 163 P.3d 1183 (2007); Driver v. SI Corp., 139 Idaho 423, 80
P.3d 1024 (2003); State v. Rhode, 133 Idaho 459, 988 P.2d 685 (1999); and Moses v. Idaho State
Tax Comm’n, 118 Idaho 676, 799 P.2d 964 (1990).
Thus, we have never revised or voided an unambiguous statute on the ground that it is
patently absurd or would produce absurd results when construed as written, and we do not have
the authority to do so. “The public policy of legislative enactments cannot be questioned by the
courts and avoided simply because the courts might not agree with the public policy so
announced.” State v. Village of Garden City, 74 Idaho 513, 525, 265 P.2d 328, 334 (1953).
Indeed, the contention that we could revise an unambiguous statute because we believed it was
absurd or would produce absurd results is itself illogical. “A statute is ambiguous where the
language is capable of more than one reasonable construction.” Porter v. Board of Trustees,
Preston School Dist. No. 201, 141 Idaho 11, 14, 105 P.3d 671, 674 (2004). An unambiguous
statute would have only one reasonable interpretation. An alternative interpretation that is
unreasonable would not make it ambiguous. In re Application for Permit No. 36-7200, 121
Idaho 819, 823-24, 828 P.2d 848, 852-53 (1992). If the only reasonable interpretation were
determined to have an absurd result, what other interpretation would be adopted? It would have
to be an unreasonable one. We therefore disavow the wording in the Willys Jeep case and
similar wording in other cases and decline to address Plaintiffs’ argument that Idaho Code
section 39-1392b is patently absurd when construed as written.
IV.
Pursuant to Idaho Code Section 39-1392e(f), Did the Filing of this Lawsuit
9
Waive Defendants’ Right to Assert the Peer Review Privilege?
Plaintiffs contend that pursuant to Idaho Code section 39-1392e(f), the peer review
privilege was waived in its entirety by the filing of this lawsuit. That statute provides:
If any physician, emergency medical services personnel, patient, person,
organization or entity whose conduct, care, chart, behavior, health or standards of
ethics or professional practice is the subject of investigation, comment, testimony,
dispositive order of any kind or other written or verbal utterance or publication or
act of any such health care organization or any member or committee thereof in
the course of research, study, disciplinary proceeding or investigation of the sort
contemplated by this act, makes claim or brings suit on account of such health
care organization activity, then, in the defense thereof, confidentiality and
privilege shall be deemed waived by the making of such claim, and such health
care organization and the members of their staffs and committees shall be allowed
to use and resort to such otherwise protected information for the purpose of
presenting proof of the facts surrounding such matter, and this provision shall
apply whether such claim be for equitable or legal relief or for intentional or
unintentional tort of any kind and whether pressed by a patient, physician,
emergency medical services personnel, or any other person, but such waiver shall
only be effective in connection with the disposition or litigation of such claim,
and the court shall, in its discretion, enter appropriate orders protecting, and as
fully as it reasonably can do so, preserving the confidentiality of such materials
and information.
Specifically, Plaintiffs rely upon that portion of the statute providing as follows:
If any physician ... whose conduct [or] care ... is the subject of investigation ...
makes claim or brings suit on account of such health care organization activity, then,
in the defense, thereof, confidentiality and privilege shall be deemed waived by
the making of such claim, and such health care organization and the members of
their staffs and committees shall be allowed to use and resort to such otherwise
protected information for the purpose of presenting proof of the facts surrounding
such matter . . . . (Emphasis theirs.)
They argue that if the health care organization has the option of using otherwise privileged
information when a physician brings a claim against it, then the physician bringing the lawsuit
should also have that option.
As stated above, Idaho Code section 39-1392e(f) applies to this lawsuit. The waiver
provision states that when a physician, who has been the subject of “investigation of the sort
contemplated by this act, makes claim or brings suit on account of such health care organization
activity, then, in the defense thereof, confidentiality and privilege shall be deemed waived by the
making of such claim.” The key language in this provision is:
10
then, in the defense thereof, confidentiality and privilege shall be deemed waived
by the making of such claim, and such health care organization and the members
of their staffs and committees shall be allowed to use and resort to such otherwise
protected information for the purpose of presenting proof of the facts surrounding
such matter . . . . (Emphasis added.)
When determining the plain meaning of a statute, “effect must be given to all the words
of the statute if possible, so that none will be void, superfluous, or redundant.” In re Winton
Lumber Co., 57 Idaho 131, 136, 63 P.2d 664, 666 (1936). If the bringing of an action by the
physician who was investigated or disciplined waived the peer review privilege of the defendants
in that action, then the emphasized words above would be meaningless. In fact, to have the
statute so state, it would be necessary to delete the emphasized words so that the wording would
simply provide that if the physician investigated or disciplined “makes claim or brings suit on
account of such health care organization activity, then confidentiality and privilege shall be
deemed waived by the making of such claim.”
To give effect to all of the words in the statute when construing it, the physician
investigated or disciplined, the health care organization, and the members of such organization’s
staff and committees all have the right to assert the peer review privilege. By bringing the
lawsuit, the physician waives his or her right to assert the privilege. The health care organization
and the members of its staff and committees who are defendants in the lawsuit can then elect also
to waive the privilege in order to defend the lawsuit. The statute further provides that “such
waiver shall only be effective in connection with the disposition or litigation of such claim, and
the court shall, in its discretion, enter appropriate orders protecting, and as fully as it reasonably
can do so, preserving the confidentiality of such materials and information.” I.C. § 39-1392e(f).
By bringing the lawsuit, the physician does not waive the privilege for purposes unconnected
with the lawsuit, nor does the health care organization or the members of its staff and committees
do so if they elect to rely upon privileged information in defense of the lawsuit.
Finally, the statute provides that the right of the health care organization or the members
of its staff or committees to use privileged information in defense of the lawsuit, “shall apply
whether such claim be for equitable or legal relief or for intentional or unintentional tort of any
kind.” I.C. § 39-1392e(f). That provision clearly shows that Idaho Code section 39-1392e(f) is
not limited in its application to medical malpractice actions.
11
V.
Can This Court Address the Scope of Idaho Code Section 39-1392c?
Idaho Code section 39-1392c provides in part, “The furnishing of information or
provision of opinions to any health care organization or the receiving and use of such
information and opinions shall not subject any health care organization or other person to any
liability or action for money damages or other legal or equitable relief.” Plaintiffs ask us to
address the scope of that statute, although they admit that the district court did not address it in
its decision.
We granted a permissive appeal only from the district court’s “Order Re: Motion To
Compel/Protective Order” filed on February 11, 2010. That order denied Plaintiffs’ motion to
compel discovery and granted Defendants’ motion for a protective order regarding that requested
discovery. “Because there was not a ruling on that issue by the district court, we will not address it
on appeal.” Brian and Christie, Inc. v. Leishman Elec., Inc., 150 Idaho 22, ___, 244 P.3d 166, 173
(2010).
VI.
Conclusion
We affirm the order of the district court entered on February 11, 2010, granting
Defendants’ motion for a protective order and denying Plaintiffs’ motion to compel discovery.
We award costs on appeal to respondents.
Chief Justice BURDICK, Justice HORTON and Justice Pro Tem TROUT CONCUR.
J. JONES, Justice, concurring in the result of Part II, specially concurring in Part III, and
concurring in Parts IV and V.
I concur in the result reached by the Court in Part II—that I.C. § 39-1392b applies in this
case—but would not necessarily agree that the statute prohibits discovery in all instances where a
physician alleges a peer review proceeding is being misused. I agree with the Court’s conclusion
in Part III that the Court does not have the authority to modify an unambiguous statute, but I do
12
not necessarily believe that the Legislature has the last word with regard to the subject of
evidentiary privileges. I concur in Part IV and Part V.
The Court correctly concludes that the privilege contained in I.C. § 39-1392b applies to
all types of peer review proceedings, including hospital credentialing and disciplinary
proceedings. According to I.C. § 39-1392f, peer review includes activities of medical staff to
improve “the care of patients in the hospital,” as well as the “quality and necessity of care
provided to patients.” Plaintiffs’ contention that the privilege only applies to medical malpractice
claims is untenable.
As with any privilege, the peer review privilege must be strictly construed and applied.
As the U.S. Supreme Court stated in Jaffee v. Redmond:
When we come to examine the various claims of exemption, we start with the
primary assumption that there is a general duty to give what testimony one is
capable of giving, and that any exemptions which may exist are distinctly
exceptional, being so many derogations from a positive general rule. Exceptions
from the general rule disfavoring testimonial privileges may be justified, however,
by a public good transcending the normally predominant principle of utilizing all
rational means for ascertaining truth.
518 U.S. 1, 9 (1996) (quotation marks and citations omitted). The Court continued, “Our cases
make clear that an asserted privilege must also ‘serv[e] public ends.’” Id. at 11. If the asserted
privilege is being misused, such as to serve some interest not within the public policy ends for
which it was intended, the privilege should not apply.
The Legislature made the following public policy statement with respect to the peer
review privilege:
To encourage research, discipline and medical study by certain health care
organizations for the purposes of reducing morbidity and mortality, enforcing and
improving the standards of medical practice in the state of Idaho, certain records
of such health care organizations shall be confidential and privileged as set forth
in this chapter.
I.C. § 39-1392. The Legislature is not the only branch of Idaho’s government that has adopted a
public policy favoring the protection of peer review proceedings from public disclosure in order
to facilitate the frank exchange of information. This Court has adopted its own privilege
designed to protect the confidentiality of the proceedings of in-hospital medical committees.
Rule 519 of the Idaho Rules of Evidence prevents the disclosure of confidential communications
“made in connection with a proceeding for research, discipline, or medical study . . . for the
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purpose of reducing morbidity and mortality, or improving the standards of medical practice for
health care.” I.R.E. 519(a)(4). The proceedings at issue in this case are clearly within the
contemplated coverage of both the legislative enactment and the judicial rule.
However, like any privilege, the party invoking the privilege must make an initial
showing that the proceeding at hand is within the intended coverage of the privilege. The person
challenging the privilege must then make a credible showing that the privilege does not apply.
That may be done by showing that the person or entity claiming the privilege does not qualify
under the terms of the legislative enactment or judicial rule, but it may also be done by making a
credible showing that the privilege is being misused. As stated in 81 Am. Jur. 2d Witnesses §
537 (2011):
Such statutorily created privilege will be narrowly construed by the courts. In
construing the peer-review privilege granted to healthcare providers, a court must
balance privilege against a plaintiff’s right to due process and the judicial need for
the fair administration of justice. The view has been followed that the broad
privilege granted to a hospital by a state’s peer review law extended to any and all
matters related to the peer-review process pursuant to which a physician’s staff
privileges were revoked, subject to the physician’s right to conduct discovery for
the limited purpose of investigating the committee members’ good faith, malice,
and reasonable knowledge or believe in order to carry his burden in opposing
their qualified immunity.
Public policy dictates that when peer review proceedings are being conducted in good
faith, all documents and proceedings should be exempt from disclosure. However, if it can be
shown by credible evidence by a physician aggrieved by the proceeding that it is not being
conducted in good faith, such as for anti-competitive objectives, the privilege simply does not
apply. The privilege is not intended to apply to bad faith proceedings. Rather, as the Legislature
has stated in I.C. § 39-1392, it is intended for “the purposes of reducing morbidity and mortality,
enforcing and improving the standards of medical practice in the State of Idaho.” Advancement
of anti-competitive practices or other improper agendas does not serve such purposes.
An analogy to the federal act pertaining to peer review, or “professional review actions,”
is apt. The Health Care Quality Improvement Act of 1986 was enacted for the purpose of
“encouraging good faith professional review activities.” Pub. L. No. 99-660, 100 Stat. 3743. The
Act is codified beginning at 42 U.S.C. § 11101. The Act provides broad immunity from damage
claims for persons and entities conducting professional review actions. 42 U.S.C. § 11111(a).
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However, in order to obtain such immunity, the actions of a professional review body must meet
all of the standards specified in 42 U.S.C. § 11112(a). That subsection provides:
(a) In General—For purposes of the protection set forth in [42 U.S.C. §
11111(a)], a professional review action must be taken—
(1) in the reasonable belief that the action was in the furtherance of quality health
care,
(2) after a reasonable effort to obtain the facts of the matter,
(3) after adequate notice and hearing procedures are afforded to the physician
involved or after such other procedures as are fair to the physician under the
circumstances, and
(4) in the reasonable belief that the action was warranted by the facts known after
such reasonable effort to obtain facts and after meeting [specified
requirements for notice and hearing].
A professional review action shall be presumed to have met the preceding
standards necessary for the protection set out in [42 U.S.C. § 11111(a)] unless the
presumption is rebutted by a preponderance of the evidence.
It seems to logically follow that, if a peer review panel’s immunity from a damage claim
is lost for failure to pursue a peer review action in the furtherance of quality health care, the
immunity from disclosure of such panel’s proceedings should also be lost for such a failure.
Where a proceeding is being conducted, not for the purpose of improving the quality of health
care, but, rather, for the purpose of eliminating competition, conducting a vendetta, or some
other reason not embodied within the public policy supporting the privilege, it should be lost.
Of interest is the fact that the Hospital’s Fair Hearing Plan specifically adopts the
provisions of the Health Care Quality Improvement Act. Section 22 of Chapter XII of the
Medical Staff Policy & Plans states: “This Fair Hearing Plan will be construed, and at all times
will be consistent with, the Health Care Quality Improvement Act and its implementing
regulations (HCQIA), and in the event of a conflict, HCQIA will control.”
I would hold that the Plaintiffs could overcome the privilege with a credible showing that
the Hospital was using the peer review proceedings for an improper purpose, such as the
Plaintiffs allege. The problem for Plaintiffs is that they have not made a credible showing that
such is the case. The Plaintiffs allege that the peer review proceedings were merely a ruse to
stifle competition by eliminating Dr. Verska as a competitor against the Hospital’s in-house
spinal surgery group. Plaintiffs have failed to present any credible evidence to support that
contention. Nor has it been shown that the Hospital did not substantially comply with the
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standards adopted by the Hospital for its Fair Hearing Plan, specifically the HCQIA
requirements.
On the other hand, the record shows that the proceedings were instituted for valid
reasons. It would not have been responsible for the Hospital to have ignored the fact that Dr.
Verska had had his hospital privileges at St. Luke’s Regional Medical Center curtailed.
Subsequent review of the doctor’s charts indicated the need for further study. The fact that he
had five cases reported to the National Practitioner Data Bank could not have been properly
disregarded by the Hospital. It certainly appears that the proceeding was initiated and pursued in
“furtherance of quality health care.”
The Plaintiffs allege that information was improperly disclosed by at least one peer
review panel member involved in the proceedings. It is not clear whether the Plaintiffs asserted
to the district court that the privilege had been waived by virtue of that fact. 2 Certainly a party
asserting a privilege can waive it by voluntary disclosure, as we have provided in I.R.E. 510:
A person upon whom these rules confer a privilege against disclosure of the
confidential matter or communication waives the privilege if the person or the
person’s predecessor while holder of the privilege voluntarily discloses or
consents to disclosure of any significant part of the matter or communication.
This rule does not apply if the disclosure is itself a privileged communication.
Although I.R.E. 510 deals specifically with waiver of privileges provided for in the Idaho Rules
of Evidence, there is no reason why we should not apply it equally to legislatively-created
privileges. However, the Plaintiffs have failed to raise this particular waiver issue on appeal.
Presumably, they can do so on remand.
Because the Plaintiffs have failed to make a sufficient showing that the privilege should
not apply in this case, the district court correctly ruled with regard to the Plaintiffs’ request to
conduct discovery and this Court reached the correct conclusion in affirming that holding.
With regard to Part III of the opinion, I agree that the Court cannot modify an
unambiguous statute. Our job is to determine whether a legislatively-created privilege applies in
a particular fact situation. However, I would observe that the Court has inherent constitutional
powers to control court procedures, including the conduct of discovery, and to implement rules
2
Plaintiffs do claim on appeal that the privilege was waived, but their argument is premised
upon I.C. § 39-1392b(f). The Court correctly disposes of that contention in Part IV of the
Opinion.
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regarding the admissibility of evidence, including the power to establish privileges in furtherance
of public policy objectives. Indeed, the Court has established a specific privilege entitled
“Hospital, in-hospital medical staff committee and medical society privilege.” I.R.E. 519. That
privilege covers much of the same ground as the legislatively-enacted privilege. Oddly, neither
party has cited I.R.E. 519 to the Court. Because I.C. § 39-1392b does not appear to conflict with
the Court’s rule, application of that statute in this proceeding is not inappropriate.
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