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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