dissenting.
I respectfully dissent. The resolution of this proceeding in prohibition involves the construction and application of the Peer Review Statute, RSMo § 537.035. The provisions of the statute directly relative to this proceeding are:
• MoRS § 537.035.4 “Except as otherwise provided in this section, the proceedings, findings, deliberations, reports, and minutes of peer review committees concerning the health care provided any patient are privileged and shall not be subject to discovery, subpoena, or other means of legal compulsion for their release ... or be admissible into evidence in any judicial or administrative action for failure to provide appropriate care.” (emphasis added)
MoRS § 535.035.5. “The provisions of subsection 4 ... limiting discovery and admissibility of testimony as well as the proceedings [and] records ... do not apply to any judicial or administrative action brought by a ... legal entity [that formed a peer committee] which ... operates to deny, restrict, or revoke the hospital staff privileges or license to practice of a physician or other health care providers or when ... the legal entity ... is sued for actions taken by such committee which operate to deny, restrict or revoke the hospital staff privileges or license to practice of a physician.” (emphasis added)
The central issue in the underlying action is the termination of a contract providing for MJR to provide radiological services to St. John’s Hospital. Nonetheless, it is not an action brought by the legal entity St. John’s Hospital which “operates to deny, restrict or revoke the hospital staff privileges” of a health care provider. Nor is it an action in which St. John’s Hospital is sued for actions taken by a peer review committee which operates to deny, restrict or revoke hospital staff privileges. In short, .it is not an action that falls within the exception created by Subsection 5.
The privilege of § 535.035.4 extends only to proceedings and records “concerning the health care provided any patient.” This provision recognizes and by implication incorporates the privilege created by MoRS § 491.060. “The following persons shall be incompetent to testify: ... (5) A physician ... psychologist or a dentist ... *219concerning any information which he or she may have acquired from any patient while attending the patient in a professional character, and which information was necessary to enable him or her to prescribe and provide treatment for such patient as a physician, chiropractor, psychologist or dentist.” The privilege created by § 491.060 is referred to as the physician-patient privilege.
By construction of the statute, the privilege created by MoRS § 491.060 applies not only to testimony, but extends to medical records embodying such information. State ex rel. Justice v. O’Malley, 36 S.W.3d 9 (Mo.App. W.D.2000). In a similar vein, MoRS § 537.035.4 applies not only to records, but expressly bars testimony recounting a peer review proceeding “concerning the health care provided any patient.” The scope of Subsection 4 has been established. “We hold that the proceedings, findings, deliberations, reports and minutes of the Realtor’s peer review committees concerning the health care provided plaintiffs or any other patient are not subject to discovery by plaintiffs.” State ex rel. Faith Hosp. v. Enright, 706 S.W.2d 852, 853 (Mo.banc 1986).
However, the purpose of MoRS § 537.035.4 is more than to merely reaffirm the physician-patient privilege which otherwise exists. “The peer review privilege is designed to encourage health care professionals to engage in candid, critical analysis of them peers’ performance by shielding participants from liability for them comments during peer review and by ensuring that their disclosure cannot be compelled.” State ex rel. Lester E. Cox Medical Centers v. Darnold, 944 S.W.2d 213, 215 (Mo.banc 1997). (emphasis added) This aspect of the peer review statute could appropriately be said to create the “professional privilege”.
It is established that records that fall within the ambit of MoRS § 491.060, the physician-patient privilege, are generally not discoverable. “There is no question that hospital records are included within the privilege.” Klinge v. Lutheran Medical Center of St. Louis, 518 S.W.2d 157, 165 (Mo.App. E.D.1974). By the same token, the bar of § 537.035.4 prohibits compelling the production of peer review records concerning health care provided any individual in any proceeding not within the exception of § 537.035.5.
As noted, the provisions of the peer review statute include the privilege created by MoRS 491.060(5). Generally, that “privilege can only be waived by the patient and the doctor must protect the patient by asserting the privilege when applicable. St. Louis Little Rock Hosp., Inc. v. Gaertner, 682 S.W.2d 146, 151 (Mo.App.1984).” State ex rel. Dixon Oaks Health Center, Inc. v. Long, 929 S.W.2d 226, 229 (Mo.App. S.D.1996). “Respondents therefore have a duty to appellant not to erroneously release his medical records. Breach of that duty may give rise to a suit for damages.” Thurman v. Crawford, 652 S.W.2d 240, 242 (Mo.App. E.D.1983).
It is not necessary to determine if the same principles apply to the waiver of the professional privilege created by § 537.035.4. There is nothing in the record to suggest that the patients who are the subject of the peer review records in question have waived the physician-patient privilege in respect to those records. I do not believe St. John’s Hospital by its misuse of a portion of the records, the subject of this proceeding, can waive the physician-patient privilege otherwise applicable to the records of the peer review committee in question.
The order of the trial court compels the production of the records in question and directs that the names of the patients re*220ferred to be redacted. It has been recognized that “[t]he circumstances, facts and interests of justice determine the applicability of the physician-patient privilege to a particular situation.” State ex rel. Lester E. Cox Medical Center v. Keet, 678 S.W.2d 813, 815 (Mo.banc 1984). The privilege is not absolute, but “must give way if there is a stronger countervailing societal interest.” Brandt v. Medical Defense Associates, 856 S.W.2d 667, 671. It is only after the determination that “a stronger countervailing societal interest” demands that the privilege give way, that the privilege must yield.
Even when that determination has been made “(p)atients must, however, be protected against humiliation, embarrassment or disgrace by appropriate protective orders ... To this end, identifying characteristics should be redacted, and the trial court should conduct an in camera inspection of the documents to ensure that patients are protected from humiliation, embarrassment, or disgrace.” State ex rel. Health Midwest Development Group, Inc. v. Daugherty, 965 S.W.2d 841, 844 (Mo. banc 1998).
In this case the required determination of the demands of a societal interest has not been made. The court has not conducted an in camera inspection of the records. It determined that the physician-patient privilege recognized in and professional privilege created by the Peer Review Statute § 537.035 apply only to any judicial or administrative action for failure to provide appropriate care and that this is not such an action. That is not a correct determination of the applicability of that statute. I would make the Writ permanent.