dissenting:
.1 dissent. The majority’s decision to create an absolute privilege for medical staff committees violates principles of discovery and is contrary to legislative intent.
The majority’s decision limits the ability of patient-plaintiffs to discover relevant evidence that would help verify allegations made in a complaint. Moreover, the decision shields doctors and hospitals from patient-plaintiff lawsuits. The privilege created by this Court invites hospitals to use medical staff committees as repositories for hiding harmful evidence when sued by patient-plaintiffs.
It is clear from reading the statute that the legislature intended only to protect the confidentiality of other patients. The statute only refers to patients, not to doctors or hospitals. The legislature placed a limit on the scope of the privilege in § 50-16-205, MCA, which states in part:
“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.]
Appellant’s subpoena requested information which related only to the status and interrelationship of Dr. Herron with the hospital. The appellant was not attempting to seek documents relating to the care of other patients. Clearly, the legislature did not intend to create such an absolute privilege as the majority’s opinion would suggest.
In addition, the hospital waived its claim to the privilege. The hospital freely disclosed the chronology of Dr. Herron’s disciplinary records which were used against him in the lawsuit. However, when the same information was used against the hospital, it claimed privilege. The hospital had notice that the information was being requested in the litigation against Dr. Herron and should have claimed its supposed privilege then.
For these reasons, the District Court’s decision favoring summary judgment should have been reversed.
JUSTICE TRIEWEILER concurs in the foregoing dissent of JUSTICE HUNT.