Attorney General v. Bruce

Boyle, J.

We respectfully dissent.

In essence, the appellees’ argument is that. 1) since the confidentiality provisions of article 17 provide that review function records "shall be used only for the purposes provided in this article” (rather than in this act) these records are unavailable in an article 15 investigation, and 2) an article 15 subpoena for this material is precluded by article 17’s confidentiality provisions that peer review materials "shall not be available for court subpoena.”

Thus, on the one hand, appellees contend that articles 15 and 17 are to be read separately and, on the other, that article 17 is to be read in conjunction with and as a limitation on article 15.

The statutes are complementary and must, under traditional rules of statutory interpretation, be construed together to give effect to each. Reed v Secretary of State, 327 Mich 108, 113; 41 NW2d 41 (1950) ("Statutes in pari materia should be construed together, particularly when, as here, they were passed or re-enacted in the same legislative session . . .”).

*174So construed, it is clear that articles 15 and 17 are designed to provide a means of regulating health care licensees which contemplate that certain materials1 relating to the peer review process are available to the licensing board.

I

The Confidentiality Provisions of Article 17 Do Not Bar the Board of Medicine and the Department of Licensing and Regulation From Obtaining Review Entity Materials for Use in Investigations

The Board of Medicine is the state agency charged under article 15 of the Public Health Code with regulating and licensing certain individual medical professionals, including physicians. In carrying out its responsibilities the board is empowered to request, receive, and evaluate reports from health care facilities licensed under article 17, including hospitals, as to discipline taken by the facility against an individual professional (where the action is related to the safety and competence of practice) to determine whether grounds for disciplinary action by the board exist. MCL 333.16243; MSA 14.15(16243) (emphasis added). Article 15 expressly provides that the board may request, receive, and evaluate

[r]eports from any other appropriate source necessary for determination of the competency and safety of the practice of a licensee. Appropriate sources include appointed public and private pro-*175fessiorial review entities and public and private health insurance programs. [MCL 333.16243(d); MSA 14.15(16243)(d). Emphasis added.]

Article 17 imposes a duty on hospitals to "cooperate with the department in the enforcement of this part,” and requires "that the physicians and other personnel working in the hospital and for whom a license or registration is required be currently licensed or registered.” MCL 333.21513(b); MSA 14.15(21513)(b).

Article 17 further requires any health care facility or agency to "report to the appropriate licensing board and to the department not more than 30 days after any disciplinary action has been taken against a member of the medical staif, and the relevant circumstances, for any of the grounds set forth in section 16221 [of article 15].” MCL 333.20175(4); MSA 14.15(20175X4) (emphasis added). Further, the article requires the Department of Public Health, the state agency charged with the licensing and regulation of health care facilities, to "forward the evidence it has to the appropriate licensing agency” if the department’s investigation "determines that a person licensed to practice a profession in this state has violated the applicable licensure statute or the rules promulgated under that statute . . . .” MCL 333.20155(6); MSA 14.15(20155X6).

Thus, insofar as physician licensees are concerned, articles 15 and 17 provide an interrelated scheme of state supervision. The board as the only state agency which has the ability to impose license revocation or other license conditions, is empowered to request and receive reports "from any other appropriate source” in order to determine the competency and safety of an individual licensee’s practice. Such sources include private *176professional review entities as well as hospitals who have taken disciplinary action against a licensee. MCL 333.16243(a), (d); MSA 14.15(16243)(a), (d).

Both health care facilities and the Department of Public Health are required to report to the board discipline taken against, or information about, an article 15 licensee relating to grounds which the Department of Licensing and Regulation may investigate under § 16221 of article 15. MCL 333.16221, 333.20155(6), 333.20175(4); MSA 14.15(16221), 14.15(20155X6), 14.15(20175X4). Hospitals licensed under article 17 must ensure that their medical personnel are licensed or registered as required under article 15.

These provisions demonstrate that, by the very terms of the Public Health Code, articles 15 and 17 are interrelated, and also that one of the purposes of article 17 is to facilitate the regulation and investigation of individual health care professionals. As such, the confidentiality provisions of article 17, MCL 333.20175(5), 333.21515; MSA 14.15(20175X5), 14.15(21515), which provide that review entity records, data, and knowledge "shall be used only for the purposes provided in this article,” themselves contemplate the availability of these records to the board and the Department of Licensing and Regulation in an investigation of an individual licensee. In short, one of the purposes of article 17 is the regulation of individual licensees practicing in hospitals. The method of achieving this purpose is the reporting requirement. The records are thus available to carry out a purpose of article 17.

Consideration of legislative history also supports this conclusion. In 1975 the Michigan Legislature enacted legislation in response to what was nation*177ally perceived to be a medical malpractice crisis.2 Reporting requirements were imposed on hospitals and professional societies for the first time,3 and the degree of confidentiality to be accorded review entities was specifically set forth.4 Section 12, which required the governing body of each hospital to provide for review entities, was amended to provide that:

(2) All records,' data, and knowledge collected for or by individuals or committees assigned this review function are confidential and shall be used only for the purposes provided in this act, shall not be public records and shall not be available for court subpoena, except as provided in subsection (4).
(4) A hospital shall report to the appropriate medical licensing board within 30 days the name of a person and the relevant circumstances causing any of the following:
(a) The resignation of the person from the medical staff.
(b) The removal or suspension of a person from the medical staff.
(c) Any other disciplinary action relating to professional practice taken against a member of the medical staff. [1975 PA 111, amending MCL 331.422; MSA 14.1179(12). Emphasis added to indicate 1975 amendments.]

Thus, this legislation imposed a duty to report upon hospitals and added an express exception to the confidentiality provision with regard to disci*178plinary action relating to professional practice taken against a member of the medical staff.

Included in the 1975 legislation was an amendment of MCL 331.531, 331.532, 331.533; MSA 14.57(21), 14.57(22), 14.57(23). 1975 PA 119. Section 1 defines "review entity,” and provides immunity from liability of any kind to persons who, in good faith, give "information or data” to a review entity, and to review entities and their members for release or publication of review entity "proceedings, reports, findings, and conclusions.” Section 2, which had previously provided that review entities could publish such material only for medical research or education was amended to specifically provide immunity from liability to peer review entities for the disclosure of material relating to discipline. The act provides that

[t]he release or publication of the proceedings, reports, findings, and conclusions of a review entity shall be for 1 or more of the following purposes:
(a) To advance health care research or health care education.
(b) To maintain the standards of the health care professions.
(c) To protect the financial integrity of any governmentally funded program.
(d) To provide evidence relating to the ethics or discipline of a health care provider, entity, or practitioner. [Emphasis added.]

The amendment thus expanded the number of reasons for which a review entity could release and publish such material in good faith without civil liability to include the provision of evidence against a health care practitioner. Additionally, the amendment provided for a distinction between peer review material that was privileged and that which could be disclosed. The statute provides that

*179except for the purposes set forth in section [2], all proceedings, reports, findings and conclusions of review entities under this act are confidential and shall not be discoverable or used as evidence in an action for personal injuries based upon malpractice, lack of informed consent or negligence.

The Legislature thus created an integrated scheme for both the protection of review entity confidentiality and the state regulation of health care practitioners. Review entity records are protected from discovery and use in civil malpractice litigation, but are clearly made available to the state agency responsible for the licensing and regulation of individual medical professionals.

In 1978 the Legislature enacted the Public Health Code, MCL 333.1101 et seq.; MSA 14.15(1101) et seq.

MCL 331.422; MSA 14.1179(12), which contained the hospital reporting requirement, was repealed and reenacted as part of the Public Health Code. As reenacted these sections now read:

(4) A health facility or agency with a medical staff shall report to the appropriate licensing board and to the department not more than 30 days after any disciplinary action has been taken against a member of the medical staff, and the relevant circumstances, for any of the grounds set forth in section 16221 [of Article 15]. [Emphasis added.]
(5) The records, data, and knowledge collected for or by individuals or committees assigned a professional review function in a health facility or agency are confidential, shall be used only for the purposes provided in this article, are not public records, and are not subject to court subpoena. [MCL 333.20175; MSA 14.15(20175).]
The owner, operator, and governing body of a hospital licensed under this article:
(a) Are responsible for all phases of the opera*180tion of the hospital, selection of the medical staff, and quality of care rendered in the hospital.
(b) Shall cooperate with the department in the enforcement of this part, and require that the physicians, dentists, and other personnel working in the hospital and for whom a license or registration is required be currently licensed or registered.
(c) Shall assure that physicians and dentists admitted to practice in the hospital are granted hospital privileges consistent with their individual training, experience, and other qualifications.
(d) Shall assure that physicians and dentists admitted to practice in the hospital are organized into a medical staff to enable effective review of the professional practices in the hospital for the purpose of reducing morbidity and mortality and improving the care provided in the hospital for patients. This review shall include the quality and necessity of the care provided and the preventability of complications and deaths occurring in the hospital. [MCL 333.21513; MSA 14.15(21513).]
The records, data, and knowledge collected for or by individuals or committees assigned a review function described in this article are confidential and shall be used only for the purposes provided in this article, shall not be public records, and shall not be available for court subpoena. [MCL 333.21515; MSA 14.15(21515).]

Comparison of this language with that of MCL 331.422; MSA 14.1179(12) set forth above, clearly indicates that the Public Health Code provision constituted a reorganization of the section for purposes of conformity with the code, rather than a substantive change in the requirements and policy of the section.

We are not persuaded that deletion of the words "except as provided in subsection (4)” indicates a legislative purpose that peer review records not be available. Rather, we would conclude from the structure of the provisions and the express refer*181ence to article 15 that the regulation of licensees through the reporting requirement (contained in article 17 as § 20175[4]) is one of "the purposes provided in this article” for which review entity records shall be available.

The confidentiality provisions relied upon by the hospital were, in the 1975 legislation, a part of a statutory scheme which expressly limited confidentiality with respect to the reporting requirements, expressly provided that review entity materials be available as evidence relating to the ethics or discipline of practitioners, and which provided a new protection against discovery or use of review entity records in civil malpractice actions. We find it much more likely that when the Legislature substantially incorporated into article 17 the duty of reporting discipline which might constitute an article 15 violation it intended that review entity materials relating to this purpose also be available.

Moreover, we note that the Public Health Code itself provides that it is "intended to be consistent with applicable . . . state law and shall be construed, when necessary, to achieve that consistency.” MCL 333.1111; MSA 14.15(1111). While MCL 331.531-331.533; MSA 14.57(21)-14.57(23) were not among the provisions repealed and reenacted as part of the Public Health Code in 1978, these sections providing immunity for review entities which release review entity materials "to provide evidence related to the ethics or discipline of a health care . . . practitioner,” § 2(d), are extant and have been amended in non-pertinent part since 1978, see 1980 PA 3, § 1. These recent amendments confirm the continuing vitality of these sections. Hansen-Snyder Co v General Motors Corp, 371 Mich 480, 487; 124 NW2d 286 (1963).

*182As statutes which pertain to the same subject matter as the Public Health Code, they must be construed consistently therewith, unless to do so would do violence to a clear expression of the Legislature. In so construing article 17 and this statute, which grants immunity for the publication of peer review materials relating to "the discipline of . . .a health care practitioner,” we find in § 2(d) compelling evidence that the Legislature did not exempt peer review materials from disclosure. Principles of statutory construction and the history of the sections show that the confidentiality provisions of article 17, MCL 333.20175(5), 333.21515; MSA 14.15(20175)(5), 14.15(21515), must continue to be construed as in pari materia with MCL 331.531-331.533; MSA 14.57(21)-14.57(23).

We find wholly unpersuasive appellant’s claim that MCL 331.532; MSA 14.57(22) indicates a legislative intent that "any such disclosure is to be determined by the hospital review committee in its own discretion . . . .” Viewed in the light of the simultaneous amendment of MCL 331.422(2), (4); MSA 14.1179(12X2), (4), it is clear that §2(d) of MCL 331.532; MSA 14.57(22) was intended as a broad directive that the proceedings, reports, findings, and conclusions of a review entity be available to provide evidence relating to the ethics and discipline of any individual engaged in the practice of medicine.

The Department of Licensing and Regulation and the Board of Medicine are the only entities in the state having the authority to investigate, regulate, and impose sanctions such as license revocation, suspension, or limitation on individual medical professionals. We agree with appellants that to permit a hospital to unilaterally determine what information is relevant when an investigation of an individual licensee is called for under article 15 *183would frustrate the purposes of the Public Health Code "to protect and promote the public health” and "to regulate occupations, facilities, and agencies affecting the public health,” Preamble, Public Health Code, MCL, Chapter 333; MSA, Title 14, Chapter 111. As this controversy itself demonstrates, the perspective of a hospital or a hospital review committee may differ substantially from the broader public perspective of the agency charged with the responsibility to investigate professional misconduct on a statewide basis.

In agreeing with the hospital’s claim that its review entities have unilateral discretion to determine what information and records they will make available to the board, the majority points to the language of MCL 331.531; MSA 14.57(21) that "[a] person, organization or entity may provide information” (emphasis added).

We cannot agree that the purpose of this language was to allow the review entity to decide what information it would disclose. The language of the statute is permissive( because the initial purpose is to permit disclosure without liability. More importantly, those persons who under MCL 331.531; MSA 14.57(21) may provide information to review entities, including to the department and boards under article 15, can be compelled to give that information to the same state agencies by a subpoena issued by a circuit court upon application by the Attorney General. MCL 333.16235(1); MSA 14.15(16235X1). It strains credulity to conclude that the Legislature would permit all others to be compelled to give information to the board, expressly provide that review entities’ proceedings, reports, findings, and conclusions be available in certain situations, expressly grant immunity to review entities, and yet leave to the discretion of those entities the unilateral decision as to what *184information they will make available to the state agency charged with the protection of the public health.

We are thus unable to accept the proposition that the Legislature intended by use of the words "for purposes of this article” to limit the department’s access to peer review materials and thereby negate the express language of both MCL 331.532(d); MSA 14.57(22)(d) and MCL 333.16243; MSA 14.15(16243). In our view this is far too slender a reed on which to erect a construction which undoes a regulatory scheme carefully crafted to protect the public against incompetent practitioners.

We would conclude that the term "shall be used only for the purposes provided in this article” does not exclude the article 15 functions of regulating health care professionals, but rather that one of the purposes of article 17 is that function. Article 17 itself provides:

A hospital shall meet the minimum standards and rules authorized by this article and shall endeavor to carry out practices that will further protect the public health and safety, prevent the spread of disease, alleviate pain and disability, and prevent premature death. [MCL 333.21521; MSA 14.15(21521).]

It is for these purposes that peer review committees must be established, and it is for this ultimate purpose that the department may have access to the materials described in MCL 331.532; MSA 14.57(22) and article 15.5

*185II

The Meaning of "Court Subpoena”

Appellant’s second contention is that the words "shall not be available for court subpoena” in article 17 preclude issuance of the subpoena here issued by the Ingham Circuit Court. Such a claim is in clear conflict with article 15. As we have seen, the board and the Department of Licensing and Regulation have the right to review entity records for use in an investigation preceding administrative action. In the event that the request is not complied with, MCL 833.16235(1); MSA 14.15(16235)(1) authorizes the Attorney General to apply to a circuit court for an investigative subpoena. The circuit court is entrusted with the obligation to determine the scope and propriety of the request, and to limit, as the Ingham Circuit Court did, the subpoena of the documents as "not . . . subject to court subpoena for any other purpose.”

Since the Attorney General does not have subpoena power under article 15, to construe the words of article 17 as the hospital advocates would leave the department with a right to the materials requested, but without an enforcement remedy. We do not believe the Legislature intended to permit hospitals to thus frustrate an inquiry into a reported potential violation of § 16221.

A common-sense construction of these statutes in pari materia requires the conclusion that the phrase "not '. . . available for court subpoena” in article 17 does not refer to an investigative subpoena in aid of a contemplated administrative proceeding pursuant to MCL 333.16235; MSA 14.15(16235). While not necessary to this decision, we find it much more likely that by using the *186phrase "court subpoena” in article 17, the Legislature in article 17 intended to preclude a subpoena for peer review records for discovery or for use as evidence in private personal injury actions.

Ill

Policy Considerations

Finally, we do not find persuasive appellees’ contention that policy considerations require that the confidentiality of the peer review process must be absolute.6 To be sure, there is a legitimate public interest in encouraging participation in peer review. The Legislature has sought to accommodate that interest by providing immunity for all good-faith disclosures to or by a hospital peer review committee and has provided that the records transmitted to the board are not public and are not available in civil proceedings. MCL 333.20175(5), 333.21515; MSA 14.15(20175X5), 14.15(21515). Given such insulation from involvement in civil litigation arising from good-faith peer review action, we are unwilling to assume that participating physicians would shirk their sworn obligation to the service of humanity by eschewal or perfunctory participation. ****7

The Legislature has accommodated the public interest in the quality of health care by providing for the availability to the department of peer review material involving disciplinary action for *187any of the grounds committed to the jurisdiction of the Board of Medicine under MCL 333.16221; MSA 14.15(16221). The receipt of such information permits the board to begin the investigation in an expeditious manner rather than re-creating the materials. The public interest is also served by an interpretation which prevents the hospital committee from censoring the information.

We conclude that the Legislature has struck the balance between shielding the review process and the greater public interest in protecting the health care consumer from unsafe and incompetent licensees by allowing the board access to peer review files maintained by a hospital, which resulted in the discipline of a physician, for use in an investigation of any of the grounds which would be a violation of § 16221 of article 15.

We would reverse the judgment of the Court of Appeals and remand the case to the Ingham Circuit Court for further proceedings. _

This case does not raise, and we therefore do not address, the question what effect the differing statutory language describing review entity records has. See, e.g., MCL 333.20175(5), 333.21515; MSA 14.15(20175X5), 14.15(21515) ("records, data, and knowledge”); MCL 331.532; MSA 14.57(22) ("proceedings, reports, findings and conclusions”).

Siedel, Malpractice reform in Michigan, 1976 Det C L R 235.

See, e.g., 1975 PA 107, enacting MCL 338.1811a; MSA 14.542(lla); 1975 PA 111, amending MCL 331.422; MSA 14.1179(12).

See, e.g., 1975 PA 143, amending MCL 338.1805; MSA 14.542(5); 1975 PA 119, amending MCL 331.531-331.533; MSA 14.57(21)-14.57(23).

As the majority acknowledges, ante, p 170, the department is able "to utilize much the same information in its investigation as was available to the hospital’s peer review committee.” Given this fact, we see no justification in either principle or policy for requiring, as the majority does today, that the department obtain this information in a *185long and arduous procedure, rather than in the most efficient and effective manner possible.

The majority cites Bredice v Doctors Hospital, Inc, 50 FRD 249 (D DC, 1970). However, that case involved a civil malpractice action, not an administrative investigation by the state agency charged with protecting the public health. Indeed, we have found no case supporting the appellee’s position.

See, e.g., Declaration of Geneva:

"... I solemnly pledge myself to consecrate my life to the service of humanity. I will give my teachers the respect and gratitude which is their due; I will practice my profession with conscience and dignity; the health of my patient will be my first consideration; I will respect the secrets which are confided in me; I will maintain by all the means in my power, the honor and the noble traditions of the medical *187profession; my colleagues will be my brothers; I will not permit considerations of religion, nationality, race, party politics or social standing to intervene between my duty and my patient; I will maintain the utmost respect for human life, from the time of conception; even under threat, I will not use my medical knowledge contrary to the laws of humanity. I make these promises solemnly, freely and upon my honor.” Adopted by the Second General Assembly of the World Medical Association (1948), Taber’s Cyclopedic Medical Dictionary (15th ed), Philadelphia: P. A. Davis Co., p 426. See also the Hippocratic Oath.

The ability of the Department of Licensing and Regulation and the board to obtain review entity records for use in an investigation does not exacerbate the concerns individuals might have about disclosing information to a review entity, or about, becoming a member of such an entity. Any person having provided information to a review entity, including a member of a review entity, is subject to suit upon an allegation of bad-faith disclosure, MCL 331.531; MSA 14.57(21); the department’s investigative use of such review entity records does not enable a potential litigant to discover who has provided information to the review entity. The department’s investigative use of the review entity records does not increase the likelihood of suit against review entity members, or against those who provided information to the entity. Thus, the availability of review entity records to the department and the board for use in an investigation does not create a danger of suit that would otherwise not exist.