dissenting.
This case is before this court on whether to grant a permanent writ of prohibition. At the preliminary arguments, we requested that the parties brief the constitutionality of Section 41-9-5 of the Review Organization Immunity Act (ROIA), NMSA 1978, Sections 41-9-1 through -7 (Repl. Pamp.1986). Nothing was presented to rebut the presumptive validity and constitutionality of that section; therefore, I am persuaded that it is constitutional and agree with the majority’s conclusion to that effect. See Aetna Finance Co. v. Gutierrez, 96 N.M. 538, 632 P.2d 1176 (1981); City of Albuquerque v. Jones, 87 N.M. 486, 535 P.2d 1337 (1975).
I do not agree, however, with the majority’s narrow construction of the peer review privilege in Section 41-9-5 limiting that privilege to data and information “generated exclusively” for peer review, and as a result of peer review deliberations. Such a construction, I believe, is contrary to the language and purposes of ROIA.
ROIA represents an attempt to improve the quality of health care services rendered by health care providers in New Mexico. To achieve this purpose, peer review is vital. The statute endeavors to make the peer review process work; hence, the reason for the provision of confidentiality. Meaningful peer review cannot be possible without this guarantee of confidentiality for the information acquired and opinions elicited from the medical community regarding the competence of other health care providers. Without a statutory peer review privilege or with substantial restrictions imposed on the privilege, persons involved in health care would be undoubtedly reluctant to engage in frank and candid evaluations of their colleagues. The result could be a concomitant deterioration in the quality of health care available in this state.
A discovery privilege will impinge inevitably upon the rights of some civil litigants to discovery of information which might be helpful to their causes of action. This, however, is not unusual in the field of law. Thus, although we recognize that discovery procedures are to be liberally construed, they are not without certain limitations. For example, the following relationships: attorney-client, SCRA 1986,11-503, psychotherapist-patient, SCRA 1986, 11-504, husband-wife, SCRA 1986, 11-505, priest-penitent, SCRA 1986, 11-505, each establish a privilege immune from discovery. The legislature, in Section 41-9-5, has properly balanced the competing interests: the right of a litigant’s access to information with the need for confidentiality in peer review proceedings.
The language in Section 41-9-5 effectuates the purposes of ROIA. The provisions therein set out what materials are discoverable and when the peer review privilege prohibits discovery. The statute allows discovery of all data and information acquired by a peer review organization when necessary to carry out any of the purposes of the review organization stated in Section 41-9-2(E)(l) through (8), or when there is a judicial appeal from the action of the review committee. It also allows for disclosure of what transpired at a meeting of the review organization by a member of the review organization for these same two reasons. In addition, the statute provides for discovery of data and information if otherwise available from original sources. That means that information, in whatever form available, from original sources other than the medical review organization is not immune from discovery or use at trial merely because it was presented during a medical review proceeding; neither is one who is a member of the review organization prevented from testifying regarding information he learned from sources other than the review organization itself, even though that information might have been shared by the committee. The statute only prohibits discovery of “data and information acquired by a review organization in the exercise of its duties.” (emphasis added). It is therefore unnecessary to further confine the peer review privilege to “exclusively generated” data and information by the review organization as the majority opinion does.
Moreover, the majority’s inclusion of a second level of review effectively destroys any concept of confidentiality in the statute. The majority holds that even after the trial court has initially concluded that certain-evidence is confidential, the court can still compel production of this privileged evidence if the success or failure of a litigant’s cause of action would likely turn on that evidence. This gives a party a second bite of the apple and, in essence, permits all information to be discoverable. Furthermore, a second level of review is so contrary to the language and purposes of the statute that in effect it is judicial legislation; and this, we have said repeatedly we will not do. See Thomas v. Henson, 102 N.M. 326, 695 P.2d 476 (1985); Bolles v. Smith, 92 N.M. 524, 591 P.2d 278 (1979); Varos v. United Oil Co. of California, 101 N.M. 713, 688 P.2d 31 (Ct.App.1984).
For the above stated reasons, I find that Section 41-9-5 is constitutional and would grant a permanent writ of prohibition.