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No. 99-032
IN THE SUPREME COURT OF THE STATE OF MONTANA
2000 MT 158
300 Mont. 212
4 P. 3d 1193
DAVID HUETHER, Personal Representative of the
Estate of George Huether, Jr., Deceased,
Petitioner,
v.
THE DISTRICT COURT OF THE SIXTEENTH
JUDICIAL DISTRICT OF THE STATE OF
MONTANA, IN AND FOR THE COUNTY OF
CUSTER, THE HONORABLE RICHARD G.
PHILLIPS, Presiding,
Respondent.
ORIGINAL PROCEEDING
COUNSEL OF RECORD:
For Petitioner:
L. Randall Bishop (argued), Jarussi & Bishop, Billings, Montana
For Respondent:
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Herbert I. Pierce III (argued), Crowley, Haughey, Hanson, Toole & Dietrich,
Billings, Montana
Honorable Joseph P. Mazurek, Attorney General; Clay R. Smith,
Solicitor, Helena Montana
For Amici Curiae:
Patricia O'Brien Cotter, Cotter & Cotter, P.C., Great Falls, Montana
(Montana Trial Lawyers Association)
Jerome T. Loendorf and Donald Ford Jones, Harrison, Loendorf,
Poston & Duncan, P.C., Helena, Montana (Montana Medical Association)
Molly Shepherd, Worden, Thane & Haines, P.C., Missoula, Montana
(St. Patrick Hospital; St. Joseph Hospital; Clark Fork Valley Hospital;
and Western Montana Clinic)
Katherine S. Donnelley and Kimberly L. Towe, Browning, Kaleczyc,
Berry & Hoven, P.C., Helena, Montana (Montana Hospital Association)
Gregory G. Murphy, Moulton, Bellingham, Longo & Mather, P.C.,
Billings, Montana (St. Vincent Hospital and Health Center and
Sisters of Charity of Leavenworth Health Services Corporation)
Heard and Submitted: September 9, 1999
Decided:
Filed:
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__________________________________________
Clerk
2
Chief Justice J. A. Turnage delivered the Opinion of the Court.
¶1 On March 25, 1999, this Court accepted jurisdiction of this application for writ of
supervisory control over the Sixteenth Judicial District Court, Custer County. We invited
briefs by amicus curiae and classified the case for oral argument. We now vacate the
District Court's determination that documents sought to be discovered by the petitioner,
the Estate of George Huether, Jr., are not discoverable under the hospital peer review
statutes codified at Title 50, Chapter 16, part 2, MCA, and remand for further proceedings
consistent with this Opinion.
¶2 The issue is whether the District Court erred in denying the Estate's discovery request
pursuant to Title 50, Chapter 16, part 2, MCA, and this Court's opinion in Sistok v.
Kalispell Regional Hosp. (1991), 251 Mont. 38, 823 P.2d 251.
¶3 In June 1992, seventy-eight year old George Huether, Jr., underwent surgery for colon
cancer at Holy Rosary Hospital in Miles City, Montana. An hour after being returned to
the surgical floor from the recovery room, Huether stopped breathing. Although he was
successfully resuscitated, he suffered severe brain damage and died when he was taken off
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life support a few days later.
¶4 Huether's son, as the personal representative of his estate, filed a wrongful death action
against the Hospital, asserting that the Hospital staff did not monitor Huether closely
enough following his surgery. As part of discovery, the Estate asked the Hospital to
produce "any incident reports or similar reports prepared with regard to any aspect of the
care and treatment of George Huether, Jr., while a patient at Holy Rosary Hospital."
Specifically, the Estate was interested in any documents indicating that Huether's vital
signs were being recorded at least every fifteen minutes by an automatic monitor called a
"Critikon."
¶5 The Hospital objected to the discovery request on grounds that any such documents
would not be subject to discovery under §§ 50-16-201 through -205, MCA, which provide
for confidentiality of information and proceedings of in-hospital medical staff committees,
also known as peer review committees. The Estate moved to compel production in
compliance with its request. The District Court denied the motion to compel, reasoning
that the privilege for data of hospital peer review committees, as set forth in the above
statutes and interpreted in this Court's Sistok opinion, is absolute.
¶6 The Estate filed an application for this Court's supervisory control. At the Court's
invitation, five amicus curiae briefs were submitted prior to the oral argument.
Discussion
¶7 Did the District Court err in denying the Estate's discovery request pursuant to Title 50,
Chapter 16, part 2, MCA, and this Court's opinion in Sistok v. Kalispell Regional Hosp.
(1991), 251 Mont. 38, 823 P.2d 251?
¶8 The Estate argues that the District Court's order denying the motion to compel gives
unconstitutional application to Title 50, Chapter 16, part 2, MCA. It asks this Court to
clarify whether Sistok stands for the rule that an absolute privilege surrounds medical staff
committees, and, if so, to expressly overrule Sistok or to declare that Title 50, Chapter 16,
part 2, MCA, violates the right of access to the courts as set forth at Article II, Section 16
of the Montana Constitution.
¶9 Montana's hospital peer review statutes are typical of the statutes adopted by various
states to encourage candor in hospital staff committees which review and evaluate the
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quality of medical care provided in their hospitals. The goal is to promote continuous
improvement in the quality of health care delivery through review of standardized health
care operations and the performance of doctors and staff. See Sistok, 251 Mont. at 40-41,
823 P.2d at 253; American Medical Association, A Compendium of State Peer Review
Immunity Laws (1988 & Supp. 1994); Charles D. Creech, The Medical Review Committee
Privilege: A Jurisdictional Survey, 67 N.C.L. Rev. 179 (1988). Because the language used
in statutes is the first basis for their interpretation, we set forth Title 50, Chapter 16, part 2,
MCA, in its entirety:
50-16-201. Data defined. As used in this part, "data" means written reports, notes, or
records of tissue committees or other medical staff committees in connection with the
professional training, supervision, or discipline of the medical staff of hospitals.
50-16-202. Committees to have access to information. It is in the interest of
public health and patient medical care that in-hospital medical staff committees have
access to the records, information, and other data relating to the condition and
treatment of patients in such hospital to study and evaluate for the purpose of
evaluating matters relating to the care and treatment of such patients for research
purposes and for the purpose of reducing morbidity or mortality and obtaining
statistics and information relating to the prevention and treatment of diseases,
illnesses, and injuries. To carry out such purposes, any hospital, its agents and
employees may provide medical records, information, or other data relating to the
condition and treatment of any patient in said hospital to any in-hospital medical
staff committee.
50-16-203. Committee information and proceedings confidential and privileged.
All such records, data, and information 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.
50-16-204. Restrictions on use or publication of information. Such in-hospital
medical staff committees shall use or publish information from such material only
for the purpose of evaluating matters of medical care, therapy, and treatment for
research and statistical purposes. Neither such in-hospital medical staff committee
nor the members, agents, or employees thereof shall disclose the name or identity of
any patient whose records have been studied in any report or publication of findings
and conclusions of such committee, but such in-hospital medical staff committee, its
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members, agents, or employees shall protect the identity of any patient whose
condition or treatment has been studied and shall not disclose or reveal the name of
any such in-hospital patient.
50-16-205. Data confidential -- inadmissible in judicial proceedings. 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
dealing with the patient's hospital care and treatment.
¶10 Sistok represented this Court's first opportunity to interpret Montana's hospital peer
review statutes. In that case, Victor Sistok brought suit against the Kalispell Regional
Hospital, arguing that the hospital negligently allowed a doctor with a history of
alcoholism to perform surgery upon him. In connection with his lawsuit, Sistok sought to
depose the former chairman of the hospital committee charged with supervision and
discipline of the medical staff, and to discover records and information concerning the
committee's prior actions taken against the doctor.
¶11 This Court held that Sistok's deposition subpoena sought information that was clearly
privileged and that the District Court had properly quashed the discovery request. In the
context presented, the Court stated that § 50-16-203, MCA, "unambiguously confers an
absolute privilege on medical staff committees." Sistok, 251 Mont. at 40, 823 P.2d at 253.
¶12 The District Court concluded that this Court's opinion in Sistok governs in the present
case. We disagree. As counsel conceded at oral argument, the facts in Sistok are clearly
distinguishable from those in the present case. The records which plaintiff Sistok sought to
discover concerned prior disciplinary actions taken against his treating physician. In
contrast, the records sought in the present case relate to the care and treatment of the
plaintiff Estate's decedent.
¶13 This Court's role in statutory construction is to "ascertain and declare what is in terms
or in substance contained therein, not to insert what has been omitted or to omit what has
been inserted." Section 1-2-101, MCA. Section 50-16-205, MCA, provides that "data" of
medical staff committees shall be confidential and not admissible in evidence, "but this
section shall not affect the admissibility in evidence of records dealing with the patient's
hospital care and treatment." The right of confidentiality created under § 50-16-205,
MCA, is plainly subject to the patient's right of access to records concerning his or her
own hospital care and treatment.
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¶14 This is consistent with the provisions of another segment of Montana law, the
Uniform Health Care Information Act (the Act), enacted in 1987. The Act enumerates
patients' rights, including the right to examine or copy all or part of the patient's recorded
health care information. See § 50-16-541, MCA. "Health care information" is any
information relating to the patient's health care, to which the patient's right will not be
diminished no matter who else had access to the identical records. See §§ 50-16-502(4)
and -504(6), MCA. The Act further provides, at § 50-16-522, MCA, that "[a] personal
representative of a deceased patient may exercise all of the deceased patient's rights under
this part." Therefore, under the Act, the Estate has the right to examine or copy all of
Huether's recorded health care information.
¶15 Amici point out that peer review committees do not themselves create evidence of
what took place in the treatment of a patient. That evidence exists, instead, in the medical
record of the patient and in the memories of those who provided treatment, all of which is
discoverable and admissible under § 50-16-205, MCA. Such evidence is not shielded from
discovery when given to a peer review committee.
¶16 Section 50-16-203, MCA, analogizes the confidentiality of peer review committee
proceedings to the confidentiality between a doctor and a patient. It is argued that we may
thus assume that a patient has the option of "waiving" the confidentiality of peer review
records, like a patient has the option of waiving confidentiality with his or her physician.
See § 50-16-526, MCA. However, under § 50-16-542(1)(d), MCA, a health care provider
may deny a patient access to health care information "compiled and . . . used solely for
litigation, quality assurance, peer review, or administrative purposes." Were we to accept
the argument that a patient has a wholesale right to "waive" the confidentiality of peer
review, § 50-16-542(1)(d), MCA, would be rendered meaningless.
¶17 We here note an inconsistency. Section 50-16-542(1)(d), MCA, while not a subject of
this appeal, on its face allows a health care provider to deny a patient access to "health
care information" used solely for peer review, among other purposes. The statute's use of
the term "health care information" is troubling. The denial of access to "health care
information" allowed under § 50-16-542(1)(d), MCA, conflicts with the provisions of the
peer review statutes as we have interpreted them above, as well as with the very purpose
of the Uniform Health Care Information Act, as set forth at § 50-16-502(2), MCA
("patients need access to their own health care information as a matter of fairness, to
enable them to make informed decisions about their health care and to correct inaccurate
or incomplete information about themselves"). We bring this conflict to the attention of
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the Montana legislature and invite its consideration in reconciling the conflict.
¶18 We conclude that the net effect of the peer review statutes is that "health care
information" belongs both to the patient and to the hospital, while "data" is a matter of
internal administrative function. Accordingly, we conclude that all "health care
information" either reviewed or generated by medical staff committees should be made
available to the subject patient. Only the "data" are protected from disclosure. Section 50-
16-201, MCA, defines the "data," which "shall be confidential," as:
written reports, notes, or records of tissue committees or other medical staff
committees in connection with the professional training, supervision, or discipline
of the medical staff of hospitals.
(Emphasis supplied.) Thus, for example, an "incident report" including a retrospective
report of what occurred in the course of a hospital patient's care and treatment would be
discoverable by the patient. Records of the discussion and recommendations of a peer
review committee as to professional training, supervision, or discipline as a result of such
an incident and report would not be discoverable.
¶19 Because the records sought in Sistok related to prior disciplinary action by the hospital
against Sistok's surgeon, they clearly met the definition of "data" and were not subject to
discovery. However, to the extent that the records sought by the Estate in this case relate
to Huether's hospital care and treatment, they do not fall within the definition of "data."
Such records are subject to discovery by the patient or, as here, by the patient's estate. The
statements in Sistok that § 50-16-203, MCA, "unambiguously confers an absolute
privilege on medical staff committees," 251 Mont. at 40, 823 P.2d at 253, and "confers an
absolute privilege," 251 Mont. at 41, 823 P.2d at 253, are limited to the facts of that case
and are overruled inasmuch as they may be read to apply to a hospital patient seeking
disclosure of information concerning his or her care and treatment.
¶20 In so ruling, we realize that we are limiting the meaning of the last sentence of § 50-
16-203, MCA: "All proceedings and in-hospital records and reports of such medical staff
committees shall be confidential and privileged." This is necessary to give effect to all of
the statutes discussed above. As we have stated:
[W]e presume that the legislature enacts a law with full knowledge of all existing
law on the same subject . . . and does not intend to abrogate or interfere with another
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law on the same matter unless the repugnancy between the two is irreconcilable.
Blythe v. Radiometer America, Inc. (1993), 262 Mont. 464, 475, 866 P.2d 218, 225. On the
other hand, were we to read the statutes as the Estate asks and open all records of peer review
committees, we would gut the peer review confidentiality provisions.
¶21 In Sistock, we further mistakenly relied in part upon a criminal procedure statute, § 46-
15-332, MCA, in addressing the question of privilege. Because that criminal law statute
does not apply to a civil case like Sistock, our reliance upon the statute was erroneous. We
therefore specifically overrule the one-sentence reference to § 46-15-332, MCA, in
Sistock, 251 Mont. at 41, 823 P.2d at 253.
¶22 We conclude that to the extent that documents over which the Hospital seeks
protection are relevant to Huether's hospital care and treatment, they are discoverable.
However, to the extent the requested documents are "in connection with the professional
training, supervision, or discipline of the medical staff of [the] hospital[]," they are not
discoverable. We recognize that this may require that the court conduct an in-camera
review and redact material in the documents relating to supervisory or disciplinary
matters.
¶23 Given our decision, we conclude that we need not reach the issue of the
constitutionality of the peer review statutes. We remand this case for further proceedings
consistent with this Opinion.
/S/ J. A. TURNAGE
We concur:
/S/ KARLA M. GRAY
/S/ W. WILLIAM LEAPHART
/S/ JIM REGNIER
Justice Terry N. Trieweiler dissenting or concurring.
¶24 I concur or dissent from the majority opinion, depending on its meaning. I am not sure
from the written opinion or our conference discussion of the opinion that I fully
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understand the majority's intent. Therefore, I write separately to make my intent clear.
¶25 It is my opinion that no factual information related to a patient's care, treatment, or
condition while at a healthcare facility is privileged from discovery by that patient
regardless of where the information is stored or the purpose for which it was gathered.
¶26 A principal problem with the majority opinion is the conclusion in paragraph 20 that
the Petitioner may discover records "relevant to the patient's hospital care and treatment"
but may not discovery information gathered "in connection with the professional training,
supervision, or discipline of the medical staff." In reality, there may be records which are
both relevant to the patient's care and treatment and gathered in connection with training,
supervision, or discipline. In that event, it is my opinion that the records are discoverable.
To hold otherwise, would deny Petitioners the right to due process and the judicial need
for fair administration of justice.
¶27 I acknowledge the difficulty encountered by the majority when trying to reconcile
Montana's statutory potpourri of privileges from disclosure and rights to discovery of
records kept by a healthcare facility. However, in reconciling the provisions of Title 50,
Chapter 16, Part 2, MCA, which pertains to information gathered by hospital committees
and Part 5 of that same chapter which pertains to the confidentiality and disclosure of a
patient's healthcare information in general it is necessary to keep the following rules of
construction in mind.
¶28 When a statutory scheme has several provisions, a construction is to be adopted which
will, if possible, give effect to all. Section 1-2-101, MCA. A statute dealing with a
particular subject will control over a general statute which is inconsistent with it. Section 1-
2-102, MCA. And finally, an interpretation which gives effect to a statute is preferred to
one which would make it void. Section 1-3-232, MCA, and Mead v. MSB, Inc. (1994), 264
Mont. 465, 474, 872 P.2d 782, 788. In particular, "whenever there are differing possible
interpretations of [a] statute, a constitutional interpretation is favored over one that is not."
Department of State Lands v. Pettibone (1985), 216 Mont. 361, 374, 702 P.2d 948, 956.
¶29 In this case, the particular statutes which deal with information gathered by peer
review or other hospital committees, protect the confidentiality of that information from
discovery by third persons, but clearly treat it no differently than other medical records
when the person seeking disclosure is the patient with whom the records are concerned.
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¶30 Section 50-16-202, MCA, gives hospital medical staff committees access to records
regarding the condition and treatment of patients to study and evaluate care and treatment
of those patients. However, to make clear that disclosure of a patient's medical records to
hospital committees does not waive the right of confidentiality, the patient would
otherwise enjoy with regard to his or her medical record, § 50-16-203, MCA, provides that
the records gathered by a committee maintain a confidential status as if the patient became
a patient of the committee. It provides for nothing more. The exact language of § 50-16-
203, MCA, states:
All such records, data, and information 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 and reports of such medical staff committees shall be
confidential and privileged.
(Emphasis added.)
¶31 Because information about a patient gathered by a hospital committee is no more
privileged than the record of that person's care prepared by his treating physician, the
patient has a right to discover that information.
Since the purpose of the statutory privilege protecting confidential communications
between physician and patient is the protection of the patient, it is generally held
that the privilege is personal to the patient or someone standing in his stead.
The physician-patient privilege cannot be asserted by the physician, even for the
benefit of the patient, or by the patient's opponent in a legal proceeding, including
the prosecution, where the patient is on trial for a crime.
81 Am. Jur. 2d Witnesses § 484.
¶32 Section 50-16-204, MCA, limits the purposes for which information gathered about
patients by hospital committees can be used. However, that section is clearly for the
protection of the patient's privacy. It is not a shield to protect the hospital from discovery
by the patient of all relevant information pertaining to his or her care.
¶33 Finally, § 50-16-205, MCA, provides:
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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 dealing with the patient's hospital care and treatment.
(Emphasis added.)
¶34 Section 50-16-205, MCA, does not mean, as suggested in the majority opinion that
"data" gathered by a hospital committee is confidential, while records dealing with the
patient's hospital care and treatment are discoverable. In fact, "records" are included
within the meaning of "data" found at § 50-16-201, MCA. Section 50-16-205, MCA,
simply continues the different treatment given by part 2 to records and other data when
sought by third parties and records of a patient's own care and treatment when sought by
that patient.
¶35 Section 50-16-541, MCA, confirms a patient's right to discover his or her own
healthcare information. While § 50-16-542(1)(d), MCA, makes an exception with regard
to information gathered for "peer review, or administrative purposes," that section is a
general provision which must be subordinated to the more specific provisions regarding
discovery of records kept by hospital committees in part 2. Otherwise, this Court could not
accomplish its required role of interpreting these inconsistent provisions in a way that
gives effect to all of them. Furthermore, if § 50-16-542, MCA, was construed in a fashion
that denied patients access to records of their care and treatment, when the quality of that
care and treatment is directly at issue as it is in this case, it would, in my opinion, be an
unconstitutional denial of the plaintiff's right to due process.
¶36 The closest we have come to considering the due process implications of suppressing
evidence in medical malpractice claims was our decision in Linder v. Smith (1981), 193
Mont. 20, 629 P.2d 1187. The principal issue on appeal in that case was the
constitutionality of the Medical Malpractice Panel Act. While the court held that the act
was not generally offensive to any constitutional provision, the Court did invalidate that
part of the act which prohibited a party to a panel proceeding from using statements made
at that proceeding to impeach a witness who testifies inconsistently at a subsequent
proceeding. The court held as follows:
Section 27-6-704(2), MCA, provides that: "(no) statement made by any person
during a hearing before the panel may be used as impeaching evidence in court." In
order to uphold the constitutionality of the panel act, we determine that this section
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must be severed from the act. It is fundamental to our adversarial system that
litigants retain the right to impeach the sworn testimony of a witness testifying
against them. We are mindful that this provision was enacted to aid the fact-finding
by the panel and to preserve the confidentiality of the proceedings. But we cannot
say that a litigant will receive a full and fair hearing if he is unable to fully cross-
examine in court the witnesses that testified in the prior hearing.
Linder, 193 Mont. at 30, 629 P.2d at 1192.
¶37 Further development of the facts illustrates that effective cross-examination is also the
basis for the Petitioner's discovery request in this case. The Petitioner's decedent, George
Huether, Jr., had surgery for removal of a malignant tumor from his cecum at Holy Rosary
Hospital in Miles City, Montana, on June 10, 1992. His records indicate that following
surgery and a normal recovery he was discharged from the recovery room and transferred
to the medical-surgical floor at 12:15 p.m. on that date. His attending physician directed
the nursing staff to monitor his condition at 15-minute intervals. His records also indicate
that his vital signs were checked at 12:30 p.m. and 1:30 p.m. when he went into
respiratory arrest. However, there was nothing in his medical chart to indicate that his vital
signs had been checked at 15-minute intervals.
¶38 After Mr. Huether was resuscitated he had severe anoxic encephalopathy. He was
taken off life support systems and died three days later.
¶39 On July 15, 1992, Mr. Huether's treating physician wrote to the decedent's family with
the following concerns about the decedent's follow-up care:
The information that you and your family provided regarding the events in the room
prior to the incident indicates to me a nursing problem and, therefore, I have
referred your letter to the administration of the hospital and the Department of
Nursing. They will be contacting you in the near future.
¶40 Based on the attending physician's letter, the family's observations while present in the
decedent's room, and the decedent's medical records, the Petitioners assumed that the
medical chart accurately reflected the extent to which the decedent's vital signs had been
monitored following his transfer to the medical-surgery floor and that those facts would be
confirmed by the hospital's investigation.
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¶41 On June 19, 1998, however, members of the nursing staff responsible for the
decedent's care testified that his blood pressure and heart rate had been continuously
monitored by a Critikon device following his transfer to the medical-surgery floor.
¶42 The basis of the Petitioner's claim is that George Huether's condition was inadequately
monitored. The medical records reflect one course of observation. The nurses' testimony
indicates another course of observation. Presumably, the investigation conducted at the
treating physician's request shortly after Mr. Huether's death will provide further
information critical to this issue. To deny access to that information which may be
dispositive of the primary issue in this case simply because it has now been included
among peer review or other committee records, would be to deny Petitioners possible
information necessary to effectively cross-examine the hospital's witnesses and to prove
their case.
¶43 This specific issue was considered by the Supreme Court of Kansas in Adams v. St.
Francis Regional Medical Center (Kan. 1998), 955 P.2d 1169. In that case, the plaintiffs'
decedent died as a result of a ruptured ectopic pregnancy while being treated at the
defendant hospital. Plaintiffs alleged that the attending nurse did not recognize the
seriousness of the decedent's condition and negligently failed to alert her physician to her
need for immediate attention. The issue before the Kansas court was whether the plaintiffs
could discover disciplinary action forms prepared by the hospital in conjunction with peer
review. Peer review information was protected by statute in Kansas as it is in Montana by
§ 50-16-542, MCA. The court held that in resolving the issue with which it was presented,
it had to weigh the privilege granted to healthcare providers against the plaintiffs' right to
due process and the judicial need for the fair administration of justice. Adams, 955 P.2d at
1187. It resolved that issue in favor of discovery and gave the following explanation:
To allow the hospital here to insulate from discovery the facts and information
which go to the heart of the plaintiffs' claim would deny plaintiffs that right and, in
the words of the federal court, "raise significant constitutional implications." 129 F.
R.D. at 551. The constitutional implication was stated by this court in Ernest v.
Faler, 237 Kan. 125, 131, 697 P.2d 870 (1985):
"The right of the plaintiff involved in this case is the fundamental constitutional
right to have remedy for an injury to person or property by due course of law. This
right is recognized in the Kansas Bill of Rights § 18, which provides that all
persons, for injuries suffered in person, reputation or property, shall have a remedy
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by due course of law, and justice administered without delay."
....
In the present case, we conclude that although the interest in creating a statutory
peer review privilege is strong, it is outweighed by the fundamental right of the
plaintiffs to have access to all the relevant facts. The district court's protective order
and order granting other discovery relief denied plaintiffs that access and thus
violated plaintiffs' right to due process and a fair determination of their malpractice
action against the defendants. The information generated by the peer review
committee, detailing the committee's decision-making process, the officers' or
committee's conclusions, or final decisions, is not subject to discovery by the
plaintiffs. The district court has a duty to conduct an in camera inspection and craft
a protective order which will permit the plaintiffs access to the relevant facts. Forms
and documents containing factual accounts and witnesses' names are not protected
simply because they also contained the officers' or committee's conclusions or
decision-making process. The court can simply redact that which is protected and
grant plaintiffs access to the portions containing the relevant facts.
Adams, 955 P.2d at 1187-88.
¶44 The State of Montana, through the Office of the Attorney General, and the
Respondent in this case, argue that Adams is unpersuasive because it is based upon a
fundamental right found in the Kansas Constitution to full legal redress for all injuries.
They argue that although Montana has a similar provision at Article II, Section 16 of the
Montana Constitution, we have held that that right is not fundamental and the parameters
of the right are as defined by the legislature. See Meech v. Hillhaven West, Inc. (1989),
238 Mont. 21, 776 P.2d 488. Assuming, without agreeing, that the State's and
Respondent's position is correct, it has no relevance to the facts in this case because the
legislature has not acted to deny victims of negligent medical care, recovery for their
injuries. Therefore, the damages sought by the Petitioners in this case are constitutionally
protected by Article II, Section 16 and the reasoning in the Adams decision would render
the peer review statutes invalid, were they not interpreted in a way that permits discovery
by the Petitioners of all facts pertaining to the decedent's care and treatment, regardless of
where those facts are kept or how and why they were gathered.
¶45 To the extent that the majority opinion permits discovery by the Petitioners of all facts
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pertaining to the decedent's care and treatment, I concur in that opinion. To the extent that
discovery of those facts is limited, I dissent from the majority opinion.
/S/ TERRY N. TRIEWEILER
Justice William E. Hunt, Sr. and Justice James C. Nelson, join in the foregoing concurring
or dissenting opinion.
/S/ WILLIAM E. HUNT, SR.
/S/ JAMES C. NELSON
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