Rees v. Intermountain Health Care, Inc.

STEWART, Justice

(dissenting):

I dissent.

This is not a contract case concerning breach of a commercial contract to sell some commodity. It is, rather, a case involving considerations of high public interest and duties that run not only to the contracting parties, but also to the public. Even if not true in a technical legal sense, the real parties in interest in this case are patients who may have been and may yet be operated on by a physician who has a mortality rate that is unacceptably high.

I. WAIVER

IHC argues that the jury was erroneously instructed on the law of waiver. I agree. Instruction No. 9 told the jury that it could not find that Dr. Rees waived his right to “due process” hearings to terminate his right to perform elective cardiovascular surgery unless his conduct “unequivocally” showed an intent to waive or was “inconsistent with any other intent.” Instruction No. 10 informed the jury that silence or failure to act could be a waiver only if the import of the silence was “unequivocal and inconsistent with any other intent.” These instructions did not allow the jury to find waiver on the basis of all the evidence. Essentially, they made it all but impossible for the jury to find waiver absent an express statement by the plaintiff.

The majority relies on an opinion from the Utah Court of Appeals to affirm the correctness of the jury instructions on waiver. The language used by the court of appeals is based on the opinion of this Court in Hunter v. Hunter, 669 P.2d 430, 432 (Utah 1983). Hunter involved the failure of a plaintiff to collect unpaid child support payments and presented facts *1080which are different from this case. An instruction defining waiver by silence or failure to require an act that is “unequivocal and inconsistent with any other intent” may be appropriate in cases like Hunter in which mere silence is involved, but in this case, there was much more than mere silence on Dr. Rees’s part and hence the instruction was wrong in my view. Corbin on Contracts states that the “term ‘waiver’ has been given various definitions; the fact is that it is used under many varying circumstances. There is no one ‘correct’ definition; it can not be defined without reference to the kind of circumstances to which it is being related.” 3A A. Corbin, Corbin on Contracts § 752, (1960).

It is clear from the record that Dr. Rees knew precisely what was at stake at the April 27th meeting. He knew that he would be required to relinquish his privileges voluntarily or opt to go through a formal decertification proceeding. He knew that before he came to the meeting. After the hospital’s profusionist and anesthesiologists indicated that they would no longer work with Dr. Rees, and after a careful review of the mortality statistics pertaining to his patients and their risk factors, the hospital’s internal affairs committee met at Dr. Rees’s request to review his position with regard to the right to perform elective heart surgery. The committee, on September 8, 1982, presented various alternatives to him, which Dr. Rees, with his counsel in attendance, stated he would consider. Subsequently, a critical meeting occurred which the majority all but ignores. On February 10, Dr. Rees was told that he had to make an election. Going into that meeting, he knew that the issue to be decided was whether he would voluntarily give up his elective privileges to do cardiovascular surgery or whether the hospital would proceed to formal decertifi-cation procedures under the hospital bylaws. The minutes of the February 10th meeting state defendant’s position that, because of “the information we [i.e. the hospital and reviewing doctors] have and the obligation to the public, we feel we have a duty to take further action at this point if Dr. Rees does not want to discontinue doing elective open heart surgery. The further action would be to begin due process.”

At trial, Dr. Rees testified about the February 10th meeting as follows:

A: [T]here is in this set of minutes a statement that it was decided Dr. Rees and his counsel would be given one week to consider the matter before submitting a decision in writing.
Q: Did you know what the matter was that was to be considered?
A. The matter was whether I was to give up my privileges or not was the implied decision.

Dr. Rees was given a copy of the minutes of that meeting, and those minutes expressly state that he would notify the hospital of his decision in writing within one week. He did not respond. The obvious risk of liability to the hospital and the committee members continued because of his recalcitrant determination to pursue his own interests.

Finally, after an interval of several weeks, Dr. Rees authorized his attorney to contact defendant to schedule a meeting, which was to be held on April 27. At that meeting, IHC’s representatives and the other physicians in attendance understood that Dr. Rees had agreed to give up his privileges to do elective cardiovascular surgery, one of the two options he had previously indicated he would decide between. Because no minutes were kept at the April 27th meeting, a letter dated May 5 was sent to Dr. Rees, confirming the understanding reached in the meeting. For six weeks, Dr. Rees did not tell the hospital that he did not agree with the conclusion in the letter or that he would continue to insist on exercising his full privileges. During the interval between May 5 and June 23, Dr. Rees did not request that proceedings be initiated under the bylaws, and he did not attempt to perform any elective surgery. Not until June 23 did he reply, stating that he had not voluntarily relinquished his elective privileges.

Why did Dr. Rees do nothing to contest the understanding that all other persons in attendance at the April 27th meeting *1081thought had been reached as to what Dr. Rees’s election was? The answer is, he did not want to jeopardize his chance of obtaining a position at another hospital in Lander, Wyoming, to do cardiovascular surgery. When that opportunity did not materialize, he finally responded to the May 5th letter. At trial, plaintiff was asked the following question:

Q. And isn’t it also true that you decided to do nothing about the letter because you had a pending application at Lander Valley Hospital, [and] you knew if the hospital started due process, as you indicated, you wouldn’t win, your application would be denied, and you would also be denied at Lander because &f the revocation?
A. That’s true.

(Emphasis added.)

On the issue of waiver, Dr. Rees’s admission that he knew he would not win in a “due process” proceeding and that he would be “denied at Lander because of the revocation” clearly reveals Dr. Rees’s strategy with respect to the hospital and the whole peer review procedure. Dr. Rees admitted to pursuing a strategy of self-interest by stringing the hospital along. He was not abused by the hospital. If anything, the hospital went too far in bending over backward for him.

To condone Dr. Rees’s gamesmanship in matters of life and death does not strike me as good public policy, nor do I believe that it is required by the law. Dr. Rees knew that he had been required to make an election in the February 5th meeting. Dr. Rees also believed that his elective privileges would be withdrawn if formal procedures were instituted against him.

Given all this, I would hold as a matter of law that Dr. Rees waived his elective privileges when he refused to reply to the May 5th letter and ask for proceedings to be initiated. At the very least, the jury should have been allowed to decide the waiver issue on an instruction that allowed it to consider all the inferences that arose from the evidence. In short, the waiver issue should have been decided on the basis of the totality of the circumstances. The jury instruction requiring an “unequivocal” intent and an intent “inconsistent with any other intent” placed upon defendant an improper and almost insurmountable burden of proof.

II. BYLAWS IMMUNITY

Article XVI(1)(A)(1) of the bylaws provides that “any act, communication, report, recommendation or disclosure ... performed or made in good faith and without malice ... for the purpose of achieving and maintaining quality patient care ... shall be privileged to the fullest extent permitted by law.” Subsection (A)(4) provides “[t]hat the acts, communications, reports, recommendations and disclosures referred to in this Article XVI may relate to a practitioner’s professional qualifications, clinical conference ... or any other matter that might directly or indirectly have an effect on patient care.”

I disagree with the majority’s conclusion that IHC is not immune from liability for its acts in this case under its bylaws. The majority concludes that because the April 27th meeting was not a peer review hearing, defendant’s actions are not covered by the bylaws. The minutes of the February 5th meeting clearly demonstrate that the entire issue of Dr. Rees’s qualifications and privileges was indeed part of a peer review proceeding.

The determination that plaintiff voluntarily relinquished his elective privileges, even if procedurally faulty, was an act performed for the “purpose of achieving and maintaining quality patient care” and was the product of the peer review process. The procedure was a necessary and essential preliminary step to a formal peer review process which could and would have been consummated had plaintiff not been trying to avoid that result while he attempted to obtain a position at another hospital. In my view, IHC’s action is covered by the phrase “any other matter that might directly or indirectly have an effect on patient care.”

III. STATUTORY IMMUNITY

Furthermore, because of the statutory immunity which I believe applies to the *1082defendant hospital, plaintiff is not entitled to damages even if he did not voluntarily waive his elective privileges. Although the relevant statutes do not expressly include hospitals in the grant of immunity, such a construction is justified when the overall purpose and structure of the immunity statutes are taken into account. Utah Code Ann. § 58-12-27 (1974) provides that the purpose of the Utah Medical Practice Act is “to protect the public from the practice of medicine by unauthorized and unqualified persons.”

Also, Utah Code Ann. § 58-12-25 (Supp. 1983) provides in part:

[Pjhysicians appointed and serving upon committees established to evaluate and improve the quality of medical care ... shall be immune from liability with respect to decisions or determinations made or furnished if made or furnished in good faith and without malice....

The intent of the preceding statutes is to encourage those in the best position to improve the delivery of health care services to take steps to do so.1 By removing the risk of liability from decisions made in good faith, the Legislature also removed a major deterrent to corrective action. Hospitals, through their agents and in conjunction with their medical staffs, must identify quality problems in medical services. Hospitals themselves are required by law to take action to improve the quality of medical care. See Utah Code Ann. § 58-12-43(1), (2) (Supp.1983). As in this case, most review actions will be initiated and carried out through the auspices of the hospital.

Given these considerations, it makes little sense to immunize physicians from liability without granting similar immunity to hospitals. The committees on which the physicians serve act for the hospitals. Not immunizing hospitals would substantially undermine the legislative policy of improving health care in the state of Utah. Surely the Legislature did not intend such an anomolous result. The statutes do not expressly exclude hospitals, and the Legislature has subsequently clarified § 58-12-25 by substituting “health care providers” for “physicians,” thus expressly extending to hospitals the immunity that only implicitly existed prior to the amendment. See Utah Code Ann. § 58-12-25 (1990).

The majority opinion also holds that, even if statutory immunity were extended to hospitals, that immunity would not apply to IHC in this case because the immunity protects only information provided for a peer review group. That conclusion does not reflect the scope of the statutory immunity, in my view. Section 58-12-25 provides that participants in the process of evaluating and improving the quality of medical care “shall be immune from liability with respect to decisions or determinations made or furnished if made or furnished in good faith and without malice-” (Emphasis added.) This was not, as the majority argues, a simple failure to fulfill a contractual obligation. Even if plaintiff did not voluntarily relinquish his elective privileges, the determination that he did so was made by defendant in the course of a preliminary peer review proceeding conducted for the purpose of improving the quality of medical care. The issue is whether that determination was made in good faith and without malice. If it was, even if wrong, defendant should not be subject to liability for its determination. There is no doubt that it was made in good faith.

Because of the error in the jury instructions on waiver and because of the immunity granted to defendant both by statute and by its bylaws, I would reverse the judgment and remand for a new trial.

HOWE, A.C.J. concurs in parts I and II of the dissenting opinion of STEWART, J. DURHAM, J., having disqualified herself, does not participate herein; GREENWOOD, Court of Appeals Judge, sat.

. Defendant also relies on Utah Code Ann. § 58-12-43(8). However, subsection (8) was added to § 58-12-43 in a 1985 amendment and therefore does not apply to this case.