HCA Health Services of Virginia, Inc. v. Levin

Present: Carrico, C.J., Hassell, Keenan, Koontz, and Kinser,
JJ., and Compton and Stephenson, Senior Justices

HCA HEALTH SERVICES OF VIRGINIA,
INC., D/B/A RESTON HOSPITAL
CENTER, ET AL.

v. Record No. 992934

STEPHEN M. LEVIN, M.D., ET AL.
OPINION BY
SENIOR JUSTICE A. CHRISTIAN COMPTON
INOVA HEALTH SYSTEM June 9, 2000

v. Record No. 992935

STEPHEN M. LEVIN, M.D., ET AL.

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Leslie M. Alden, Judge

In these appeals of a contempt order arising from a

defamation action, we consider the scope and application of the

statutory privilege from disclosure accorded peer review records

possessed by certain medical organizations.

In 1998, Stephen M. Levin, M.D., filed an action for

damages against, among others, WJLA-TV, a television station

that broadcasts in the Washington, D.C., metropolitan area,

which includes Northern Virginia and Maryland. In a second

amended motion for judgment, the plaintiff, who practices

medicine in Northern Virginia, sought recovery against

defendants for defamation, conspiracy, trespass, and the

unauthorized use of his name and picture.
 The lawsuit stems from a news story WJLA-TV and the other

defendants disseminated about the plaintiff. A board-certified

orthopedist, the plaintiff alleges the defendants defamed him by

accusing him of sexual assaults upon female patients in

connection with his use of internal pelvic diagnostic

examinations and "intrapelvic stretching techniques," when the

patients were suffering from "pelvic floor problems." The

plaintiff asserts the techniques he employs are recognized as

"medically appropriate and effective." The plaintiff alleges

defendants characterized him as the "DIRTY DOC" and the "X-RATED

DOCTOR."

During discovery proceedings in the pending action,

appellants Reston Hospital Center and Pentagon City Hospital

(collectively, the hospitals) as well as appellant INOVA Health

System (INOVA), received subpoenas duces tecum issued and served

at the request of WJLA-TV. Neither the hospitals nor INOVA are

parties to the litigation; instead, they are third parties whose

peer review records are sought by WJLA-TV in its effort to

defend the plaintiff's defamation action.

The subpoenas sought, for example, all documents dealing

with any formal or informal complaint made against the plaintiff

by any patient or health care provider; all documents describing

any disciplinary action taken against the plaintiff by any

hospital, medical licensing board, or medical association; and

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all documents that refer to any decision to grant, revoke, or

suspend the plaintiff's hospital privileges. WJLA-TV sought to

use the information in an effort to validate its allegedly

defamatory statements about the plaintiff and to resist

plaintiff's claim for lost income as the result of the

defamation.

The hospitals and INOVA filed motions to quash the

subpoenas duces tecum. Relying on the provisions of Code

§ 8.01-581.17, they asserted the documents sought are

privileged, confidential, and not discoverable.

As pertinent, the statute provides that peer review

information kept by hospitals and health-related organizations

"are privileged communications which may not be disclosed or

obtained by legal discovery proceedings unless a circuit court,

after a hearing and for good cause arising from extraordinary

circumstances being shown, orders the disclosure" of such

information.

Following briefing and oral argument on the respective

motions to quash, the trial court denied the motions and ordered

the documents produced. In a letter opinion, the court stated

that Code § 8.01-581.17 is not "applicable outside the context

of medical malpractice actions"; that the plaintiff had waived

the statutory privilege by filing suit and putting his

reputation at issue; and that, even if the statute is

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applicable, WJLA-TV had shown the required "good cause arising

from extraordinary circumstances" because the peer review

records "are clearly relevant to the issue of the truth of the

alleged defamatory statements, as well as the mitigation of

damages suffered by Plaintiff for loss of reputation income."

Counsel for the hospitals and INOVA advised the trial court

that they were of opinion the discovery order was interlocutory,

that they wished to generate an appealable order, and thus their

clients would not comply with the discovery order. The trial

court, in a November 1999 order, found them in civil contempt of

the disclosure order and assessed each organization a fine of

$150 per day "until such time as each purges itself of the

contempt."

Pursuant to Code § 19.2-318, the hospitals and INOVA

appealed the contempt order to the Court of Appeals of Virginia,

which stayed that portion of the trial court's order imposing

daily fines. Subsequently, and before the matters had been

determined by the Court of Appeals, this Court, in a December

1999 order entered pursuant to Code § 17.1-409(A) and (B)(1),

certified these cases for review. We determined that the

matters are of such imperative importance as to justify the

deviation from normal appellate practice and to require prompt

decision in this Court.

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 We awarded the appeals and consolidated them for briefing

and argument. On appeal, a brief amicus curiae has been filed

supporting the appellants by The Virginia Hospital and

Healthcare Association, Medical Society of Virginia, American

Medical Association, and American Hospital Association.

Three questions are presented on appeal. Is the privilege

accorded by Code § 8.01-581.17 to medical peer review records

applicable only in medical malpractice actions? Does the

statutory privilege belong to and may it be unilaterally waived

by an individual physician who is the subject of peer review?

Did WJLA-TV demonstrate "good cause arising from extraordinary

circumstances," as required by the statute, to justify

disclosure of confidential peer review records? We answer each

of those queries in the negative.

First, the statutory language is clear, unambiguous, and

unqualified. The plain language states that peer review records

"are privileged communications which may not be disclosed or

obtained by legal discovery proceedings." No language of the

statute limits its application to a particular type of suit or

action.

When statutory language is clear and unambiguous, there is

no need for construction by the court; the plain meaning of the

enactment will be given it. Brown v. Lukhard, 229 Va. 316, 321,

330 S.E.2d 84, 87 (1985). Courts must give effect to

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legislative intent, which must be gathered from the words used,

unless a literal construction would involve a manifest

absurdity. Abbott v. Willey, 253 Va. 88, 91, 479 S.E.2d 528,

530 (1997). Certainly, it is not manifestly absurd to conclude

that the § 8.01-581.17 privilege applies to all kinds of

litigation, not just to medical malpractice actions.

WJLA-TV contends that because the statute in issue is

codified in the Medical Malpractice section of Chapter 21.1 of

Title 8.01, the General Assembly necessarily intended that it

not apply outside the medical malpractice context. The trial

court apparently was influenced by the statute's placement in

the Code.

There is no merit to WJLA-TV's contention. When, as here,

the legislature's intent is unambiguously expressed in the

statute, recourse to devices of statutory construction, such as

comparing it with other statutes in pari materia or considering

other extraneous circumstances, is not permitted. City of

Richmond v. Sutherland, 114 Va. 688, 691, 77 S.E. 470, 471

(1913).

Also, to restrict the privilege, as WJLA-TV urges and as

the trial court ruled, ignores the underlying purpose of the

statute. The obvious legislative intent is to promote open and

frank discussion during the peer review process among health

care providers in furtherance of the overall goal of improvement

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of the health care system. If peer review information were not

confidential, there would be little incentive to participate in

the process.

Turning to the second question, we hold, contrary to the

trial court's ruling, that the statutory privilege does not

belong to the physician who is the subject of peer review and

may not be unilaterally waived by the physician. To allow the

subject of peer review to waive the privilege runs counter to

the purpose of the statute that encourages physicians to

participate candidly in the peer review of other physicians,

with the expectation that the information submitted will remain

confidential and shielded from public disclosure.

Moreover, to allow the peer review subject to waive the

privilege is at odds with the plain language of the statute.

There is no suggestion in the words of the enactment that the

privilege resides in, and may be waived by, the target of peer

review.

Upon the third question, we conclude the trial court erred

in finding WJLA-TV established the required "good cause arising

from extraordinary circumstances" sufficient to warrant

disclosure of the peer review records. As we have stated, the

trial court determined that the information sought by the

subpoenas is "clearly relevant" to the issues of the truth of

the alleged defamation as well as mitigation of damages. The

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court said that "WJLA is entitled to pursue all facts that are

relevant to its defense of this action," and thus WJLA-TV had

met the statutory requirement.

However, there is a vast difference between the legal

principle of "relevance" and the term "extraordinary

circumstances." There is nothing "extraordinary" about the mere

need to defend this lawsuit. Manifestly, the General Assembly

did not contemplate a test for disclosure that is so easily

satisfied.

In the present case, WJLA-TV claimed only that it has to

defend itself from defamation based on a news story it decided

to disseminate after it, presumably, had become satisfied of its

truth. The need to establish a defense, which must be made in

all civil actions, is the essence of usual and ordinary, and is

not "extraordinary."

Consequently, the contempt order will be set aside and the

respective motions to quash the subpoenas duces tecum will be

granted. Additionally, the daily fines will be annulled and

dismissed. See Robertson v. Commonwealth, 181 Va. 520, 538-39,

25 S.E.2d 352, 360 (1943) (disobedience of order to produce

documentary evidence excused if order is erroneous because

defendant refused to divulge privileged information).

Record No. 992934 — Reversed and final judgment.
Record No. 992935 — Reversed and final judgment.

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