No. 91-137
IN THE SUPREME COURT OF THE STATE OF MONTANA
1991
VICTOR A. SISTOK,
Plaintiff and Appellant,
-vs-
KALISPELL REGIONAL HOSPITAL,
a Montana corporation,
Defendant and Respondent.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable Michael Keedy, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
James C. Bartlett; Hash, O'Brien & Bartlett,
Kalispell, Montana
For Respondent:
Mark L. Stermitz and Stephen C. Berg; Warden,
Christiansen, Johnson & Berg, Kalispell, Montana
Submitted on Briefs: September 12, 1991
Decided: December 2 7 , 1 9 9 1
Fi
,
'.
Clerk
Justice R. C. McDonough delivered the Opinion of the Court.
Plaintiff, Victor Sistok, appeals from the order of the
District Court of the Eleventh Judicial District, Flathead County,
quashing a deposition subpoena and granting defendant's motion for
summary judgment. The court ruled that the evidence presented
failed to demonstrate that Kalispell Regional Hospital acted
negligently by permitting Dr. Paul W. Herron to perform surgery on
Mr. Sistok in its facility. We affirm.
We note that the appellant, Victor Sistok, has died since this
case was submitted for appellate review, and a motion to suggest
death of the appellant has been submitted. No motion for
substitution of his personal representative has been made. We
assume, as we are given authority to do, that he has no personal
representative at this time and we will proceed with rendering this
opinion as if Mr. Sistok were still alive. Rule 37(a), M.R.App.P.,
Bieber v. Broadwater County (1988), 232 Mont. 487, 759 P.2d 145.
The sole issue for review is:
Did the District Court err by quashing a deposition subpoena
for notes, records, memoranda and written documentation generated
by the hospital's Medical Executive Committee? More specifically,
the question raised is whether data generated by the Medical
Executive Committee is privileged from discovery in a suit against
the hospital.
Victor Sistok (Sistok) brought suit against Kalispell Regional
Hospital (the Hospital) alleging among other things that the
Hospital negligently allowed Dr. Herron (Herron) to perform surgery
in its hospital when it knew Herron had a history of alcoholism.
2
Sistok experienced health difficulties following and related to
surgery performed by Herron at the Hospital.
Prior to Sistok's surgery, Herron's staff privileges at the
Hospital had been suspended and reinstated following incident where
Herron had been intoxicated while performing his duties at the
Hospital. The Hospital's Medical Executive Committee (the
Committee) serves as a review board whose duties include
supervision and discipline of the medical staff. At the
recommendation of the Committee, Herron's staff privileges had been
suspended and later reinstated subject to specific conditions.
Sistok's position is that because conditions were placed on
Herron's staff privileges, the Hospital assumed greater
responsibility for his actions. Sistok argues that the conditional
staff privileges altered the relationship between the Hospital and
Herron from the independent contractor relationship usually enjoyed
between staff physicians and a hospital to one of principal and
agent. Sistok contends that because Herron was an agent of the
Hospital, the Hospital is liable for Herron's alleged negligence.
To support his position, Sistok sought to depose the former
chairmen of the Committee and issued a deposition subpoena
commanding them to come forward and to produce all manner of
records and information regarding the Committee's relationship with
Herron. The Hospital argued that pursuant to 5 50-16-203, MCA, the
information sought by Sistok was privileged and confidential. The
District Court agreed and quashed the deposition.
Section 50-16-203, MCA, states:
Committee information and proceedings confidential and
privileged. All such records, data, and information
3
shall be confidential and privileged to said committee
and the members thereof, as though such hospital patients
were the patients of the members of such committee. All
proceedings and in-hospital records and reports of such
medical staff committees shall be confidential and
privileged.
We conclude that this statute unambiguously confers an absolute
privilege on medical staff committees. Sistok argues that the
privilege conferred is to protect the confidentiality of patients
but not physicians and medical staff. Sistok claims that because
he is only interested in information regarding Herron and not
information regarding other patients, the statute does not apply.
Moreover, Sistok contends that the statute refers only to agents of
a hospital and not to physicians who are generally independent
contractors. By holding this information privileged, Sistok
contends, hospitals are able to sabotage lawsuits by keeping all
relevant information with the committee.
We are not persuaded by Sistok's argument. The statute makes
clear that the privilege applies to all members of the Committee.
The statute was developed and the privilege conferred to encourage
reluctant physicians to join the Committee. The legislature, as a
matter of public policy, sought to have responsive and full
discourse among the professionals involved, and to promote an
atmosphere free of apprehension so that constructive criticism
could occur. The privilege is extended to all members of the
Committee as well as to the patients whose cases are reviewed by
the Committee. Furthermore, Sistok's argument is internally
inconsistent. He alleges that the relationship between the
Hospital and Herron is that of principal and agent while
simultaneously he argues that the statute does not apply because
4
Herron is an independent contractor.
Alternatively, Sistok argues that 3 50-16-203, MCA, is merely
a codification of the rules of evidence and only limits the
admissibility of committee data because it is hearsay. Sistok
asserts, and we agree, that discovery is not limited to admissible
evidence but instead can be utilized to lead to information that
will be admissible as evidence. However, the statute unambiguously
states that the information is privileged and confidential.
Section 46-15-332, MCA, provides that:
All matters which are privileged upon the trial are
privileged against disclosure through any discovery
procedure.
The records, data and information generated by Medical Executive
Committees are privileged against discovery.
Several cases are cited from other jurisdictions where
disclosure of committee proceedings was allowed despite statutory
law prohibiting such discovery. In Arizona the privilege only
precludes material that is the product of reflective deliberations
or thought-making processes while relevant and material facts are
discoverable. Tucson Medical Center, Inc. v. Misevch, (Ariz.
1976), 545 P.2d 958. In California and Connecticut, the courts
have allowed the voluntary disclosure of what took place at
committee proceedings despite statutory bars of discovery. West
Covina Hospital v. Superior Court, (Calif. 1986), 718 P.2d 119;
Pisel v. Stamford Hospital, (Conn. 1980), 430 A.2d 1. These cases
are distinguishable from the instant case. The Arizona Legislature
explicitly allowed for the subpoena of committee information, the
Montana Legislature did not. The California and Connecticut cases
5
refer to voluntary disclosure and not the involuntary disclosures
sought by Sistok. Unlike the statutes in these other
jurisdictions, 5 50-16-203, MCA, confers an absolute privilege.
Sistok next argues that the affidavit of the Hospital
administrator, Eugene Johnson, outlining the actions and
recommendations of the Committee in regards to Herron, is a waiver
of the privilege. Whether the Hospital waived its privilege is
dependent upon whether a significant part of the privileged matter
has been disclosed. Rule 503(a), M.R.Evid. The District Court
ruled that Johnson's affidavit did not disclose a significant part
of the privileged matter. Regardless of whether the Hospital
reached the 'significant part' threshold, the Hospital cannot waive
the privilege for others. The privilege extends to all members of
the Committee as well as patients whose cases are reviewed. Rule
503(b), M.R.Evid., provides:
Where two or more persons are joint holders of a
privilege, a waiver of the right of a particular joint
holder to claim the privilege does not effect the right
of another joint holder to claim the privilege.
Assuming arguendo, that the Hospital has waived its claim to the
privilege, it cannot waive the claim of individual members of the
Committee such as the chairpersons subpoenaed.
Lastly, Sistok contends that the Hospital administration's
files are discoverable to determine the imitations and restrictions
placed on Dr. Herron by the Hospital. After careful review, we
find the record to be void of any denied attempts to access
information from the Hospital other than the deposition subpoena
for the chairmen of the Committee. The matter before this Court is
the deposition subpoena for data and information of the Committee
6
and not the Hospital administration's files.
The deposition subpoena submitted by Sistok sought information
that is clearly privileged. The District Court properly quashed
the request. Sistok, to support his argument, apparently relied on
the information that he allegedly would have gained from the
quashed deposition and as a result evidence supporting his argument
is lacking. The court is under no duty to anticipate proof that
will establish a material and substantial issue of material fact.
Tucker v. Trotter Treadmills, Inc. (1989), 239 Mont. 233, 779 P.2d
524. The burden is on the opposing party to demonstrate the
existence of a genuine issue of material fact, otherwise summary
judgment is properly granted as a matter of law. Bills v. Hannah
Inc. (1988), 230 Mont. 250, 749 P.2d 1076. The deposition subpoena
was properly quashed and Sistok failed to meet his burden of
raising a genuine issue of material fact. Therefore, summary
judgment was properly granted.
Affirmed.
We Concur: /
JT
L - Chief Justice
/q,
Justices
7
Justice William E. Hunt, Sr., dissenting.
I dissent. The majority's decision to create an absolute
privilege for medical staff committees violates principles of
discovery and is contrary to legislative intent.
The majority's decision limits the ability of patient-
plaintiffs to discover relevant evidence that would help verify
allegations made in a complaint. Moreover, the decision shields
doctors and hospitals from patient-plaintiff lawsuits. The
privilege created by this Court invites hospitals to use medical
staff committees as repositories for hiding harmful evidence when
sued by patient-plaintiffs.
It is clear from reading the statute that the legislature
intended only to protect the confidentiality of other patients.
The statute only refers to patients, not to doctors or hospitals.
The legislature placed a limit on the scope of the privilege in
9 50-16-205, MCA, which states in part:
All data shall be confidential and shall not be
admissible in evidence in any judicial proceeding, but
this section shall not affect the admissibility in
evidence of records dealinq with the patient's hospital
care and treatment. [Emphasis added.]
Appellant's subpoena requested information which related only
to the status and interrelationship of Dr. Herron with the
hospital. The appellant was not attempting to seek documents
relating to the care of other patients. Clearly, the legislature
did not intend to create such an absolute privilege as the
majority's opinion would suggest.
8
In addition, the hospital waived its claim to the privilege.
The hospital freely disclosed the chronology of Dr. Herron's
disciplinary records which were used against him in the lawsuit.
However, when the same information was used against the hospital,
it claimed privilege. The hospital had notice that the information
was being requested in the litigation against Dr. Herron and should
have claimed its supposed privilege then.
For these reasons, the District Court's decision favoring
summary judgment should have been reversed.
I concur in the foregoing dissent of Justice Hunt.
1
9
December 27, 1991
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
James C. Bartlett
Hash, O’Brien & Bartlett
P.O. Box 1178
Kalispell, MT 59903
Mark L. Stermitz
Warden, Christiansen, Johnson & Berg
P.O. Box 3038
Kalispell, MT 59903-3038
ED SMITH
CLERK OF THE SUPREME COURT
BY:
Depu
\*
STATE OF MONTANA