Mat-Su Valley Medical Center, LLC v. Bolinder

          Original Applications in File Nos. S-15920/15969 from the Superior Court Nos. 3PA-11-00963 CI, 3AN-14-09235 CI of the State of Alaska, Third Judicial District, Palmer, Kari Kristiansen, Judge. Petition for Review in File No. S-16440 from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Gregory Miller, Judge.

          Robert J. Dickson, Atkinson, Conway & Gagnon, and Roger F. Holmes, Biss & Holmes, Anchorage, for Petitioner Mat-Su Regional Medical Center.

          Christian N. Bataille, Flanigan & Bataille, Anchorage, for Respondents Bolinder and Brandt.

          Scott Leuning, Leuning & Renner, LLC, Sioux Falls, South Dakota, and Whitney L. Traeger and Howard A. Lazar, Delaney Wiles, Inc., Anchorage, for Respondent and Petitioner Dr. Zwiacher.

          Stephen D. Rose, Garvey Schubert Barer, Anchorage, for Amicus Curiae Alaska State Hospital and Nursing Home Association.

          Chester D. Gilmore, Cashion Gilmore LLC, Anchorage, for Amicus Curiae Providence Health & Services - Washington d/b/a Providence Alaska Medical Center. Margaret Simonian, Dillon & Findley, P.C., Anchorage, and William S. Cummings, Friedman Rubin, Bremerton, Washington, for Amicus Curiae Alaska Association for Justice.

          Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and Carney, Justices.

          OPINION

          BOLGER, Justice.

         I. INTRODUCTION

         Alaska's medical peer review privilege statute, AS 18.23.030, protects discovery of data, information, proceedings, and records of medical peer review organizations, but it does not protect a witness's personal knowledge and observations or materials originating outside the medical peer review process. A hospital invoked the privilege in two separate actions, one involving a wrongful death suit against a physician at the hospital and the other involving both a medical malpractice claim against the same physician and a negligent credentialing claim against the hospital. In each case the superior court compelled the hospital to disclose materials related to complaints submitted about the physician and to the hospital's decision to grant the physician medical staff membership. The hospital and the doctor sought our review of the discovery orders. Because we conclude that these discovery orders compel the hospital to disclose information protected by the peer review privilege, we reverse the discovery orders in part. We further hold that the false information exception to the privilege provided in AS 18.23.030(b) applies to actions for which the submission of false information is an element of the claim and thus does not apply here.

         II. FACTS AND PROCEEDINGS

         We address these two interlocutory appeals in this consolidated opinion due to the similarity of the facts, legal issues, and parties. In the first case, Denise Bolinder, in her capacity as the personal representative of the estate of Robert Bolinder, filed a claim for wrongful death against Dr. John Zwiacher, alleging that Dr. Zwiacher was negligent in treating Robert Bolinder when he was a patient at Mat-Su Regional Medical Center (Mat-Su) in 2009. In the second, Jon Brandt brought a claim for medical malpractice against Dr. Zwiacher and a negligent credentialing claim against Mat-Su after Brandt allegedly suffered complications from a September 2012 surgery Dr. Zwiacher performed at Mat-Su. In each case, Mat-Su refused to respond to discovery requests for materials related to (1) Mat-Su's decisions to renew Dr. Zwiacher's medical staff membership at Mat-Su; and (2) complaints that Mat-Su had received regarding Dr. Zwiacher. Mat-Su asserted that, because all the requested materials were acquired or generated by Mat-Su's peer review committees, they were privileged under the medical peer review statute and not subject to disclosure.

         A. The Medical Peer Review Privilege Statute And Mat-Su's Peer Review Committees

         Some background on medical peer review generally, and the peer review committees at Mat-Su specifically, is necessary. Medical peer review "refers to the process hospitals use to oversee medical staff to improve patient care, reduce hospital liability, and lower rates formal practice insurance."^[1] Generally, the purpose of affording an evidentiary privilege to peer review materials is to promote candor in peer review proceedings, with the aim of more rigorous oversight of medical care and lower malpractice premiums.^[2] Nearly all hospitals employ peer review procedures.^[3] And almost all 50 states have adopted laws promoting the effectiveness of peer review by: (1) providing immunity from liability for persons serving on or providing information in good faith to peer review committees, and (2) creating an evidentiary privilege for certain materials related to the peer review process.^[4]

         Alaska's medical peer review privilege statute, AS18.23.030, was enacted in 1976 as part of a broad, comprehensive bill intended to address the lack of malpractice insurance available to Alaska doctors.^[5] The statute restricts discovery of information and data acquired by medical peer review organizations, along with the proceedings and records of those organizations. The privilege is subject to certain exceptions, including materials "otherwise available from original sources" or information within an individual's personal knowledge, and materials provided to a peer review organization that are alleged to contain knowingly false information. Disclosing privileged information is a misdemeanor.^[6]

         Mat-Su has two committees that it argues are protected by the peer review privilege. The first committee is the Medical Staff Peer Review Committee (Peer Review Committee), which is charged with reviewing all care provided by Mat-Su physicians and maintaining quality patient care within Mat-Su. The Peer Review Committee conducts professional practice evaluations of physicians, as is required for hospital accreditation. It consists of various Mat-Su personnel: the chairs of each clinical section, physicians from various specialities, a nursing representative, and an administrative representative. The second committee is the Medical Executive Committee (Executive Committee), which reviews reports and recommendations from the Peer Review Committee regarding any corrective action. The Executive Committee consists of physician representatives from each specialty group at Mat-Su. The Executive Committee makes decisions regarding both initial credentialing of health care providers and renewal of credentials, with the Board of Trustees making the final decision on any matter involving privileges or the loss thereof.

         B. First Petition In Bolinder v. Zwiacher

         In January 2009 Dr. Zwiacher performed a diagnostic surgery on Robert Bolinder to examine an unidentified mass in his lungs and collect tissue samples. Three days after the surgery, Robert began experiencing pain in his left leg, and his wife, Denise, called Dr. Zwiacher. Dr. Zwiacher asked to speak with Robert, but there is a dispute regarding what Dr. Zwiacher then said. According to Dr. Zwiacher, he told Robert to go to the emergency room. But Denise claims that Robert told her that Dr. Zwiacher said a pinched nerve likely was causing his pain and advised Robert to rest at home. Later that same day, Robert died at home. An autopsy showed that his death was caused by multiple pulmonary emboli - blood clots lodging in and blocking arteries in the lungs - that likely came from the leg in which he was experiencing pain.

         In 2011 Denise, as the personal representative of Robert's estate (the Estate), filed a wrongful death claim against Dr. Zwiacher alleging that he negligently treated Robert. The Estate conducted discovery to elicit information about Dr. Zwiacher's background preceding his position at Mat-Su, when he practiced medicine in Wisconsin. This information apparently suggested that Dr. Zwiacher misrepresented his work and disciplinary history on his 2005 application for an Alaska medical license and his 2006 application for medical staff membership at Mat-Su. To confirm this indication, the Estate moved to compel Dr. Zwiacher to consent to Mat-Su (a non-party) releasing his application for medical staff membership.^[7] After the superior court denied the motion in April 2012, the Estate petitioned this court for interlocutory review.

         In 2013 we granted the petition and reversed the denial of the motion to compel.^[8] We held for the purposes of "this case" that one of the exceptions to the peer review privilege, excluding certain material alleged to contain false information, ^[9]applied. We concluded that the application was not privileged because the Estate had submitted evidence showing Dr. Zwiacher had lied on his application for an Alaska medical license, which suggested he also provided this false information in applying to Mat-Su.^[10] However, "we d[id] not decide" how this exception to the privilege "should be interpreted or how it may apply in future cases" given the parties' cursory briefing and lack of argument on the scope of the exception.^[11] We thus ordered Mat-Su to provide Dr. Zwiacher's application to the Estate.

         C. The Estate's Discovery Requests To Mat-Su

         Following our order, Mat-Su provided the Estate with Dr. Zwiacher's initial application for medical staff membership. Mat-Su also produced documents revealing that Dr. Zwiacher's medical staff membership at Mat-Su had been revoked in April 2014 and detailing the disciplinary steps that preceded the revocation. The Estate amended its complaint to allege that Dr. Zwiacher obtained the privileges necessary to treat Robert by lying about his work history on his application to Mat-Su.

         The Estate then made several discovery requests of Mat-Su. First the Estate requested "[a]ll documents related in any way to the evaluation and granting of [Dr. Zwiacher's] [medical staff membership] at Mat-Su Regional" and asked to depose people knowledgeable about Mat-Su's decision to grant him membership. Mat-Su objected, citing the peer review privilege. The Estate also sought to depose Mat-Su personnel with knowledge of the identity of individuals "likely to possess personal knowledge regarding [Dr. Zwiacher's] professional credibility, behavior, and/or conduct" including knowledge of any limitation or revocation of Dr. Zwiacher's medical staff membership imposed by Mat-Su. Mat-Su again objected on the basis of the peer review privilege to the extent the request asked for more than the designation of individuals with personal knowledge of Dr. Zwiacher's credibility. Mat-Su then designated Joan Brodie, the assistant director of quality risk management and provider services, to testify on these topics. Brodie's job duties include overseeing the credentialing process, addressing regulatory compliance issues, and participating in the peer review process.

         At the deposition Brodie provided the names of several general surgeons, anesthesiologists, and hospitalists who might have information about Dr. Zwiacher's credibility. She also advised the Estate to contact the heads of the nursing and operating room staffs to obtain information about others who had worked with him. But, citing the peer review privilege, Mat-Su objected to many of the Estate's inquiries, including those asking whether any complaints had been raised about Dr. Zwiacher and the nature of Brodie's interactions with him. Brodie explained that "every contact [she] had with [Dr. Zwiacher] was within . . . the course of what [she] do[es]"; therefore she could not answer such questions because the information was privileged.

         The Estate additionally sought to depose Drs. John Naylor and Bruce Hess. Dr. Hess served as the president of the medical staff before Dr. Naylor assumed the position. Dr. Naylor served as the president of the medical staff, chaired the Executive Committee, and worked at Mat-Su as an anesthesiologist. In early January 2015, when the deposition was taken, Dr. Naylor had served as president of the medical staff for about nine months. Though the Estate did ultimately depose Dr. Naylor, it did not depose Dr. Hess.

         Dr. Naylor testified that, as president of the medical staff, he serves as the chair of the Executive Committee. He had also previously served as the chair of the Peer Review Committee. Dr. Naylor explained that the peer review process is initiated by concerns and complaints from Mat-Su staff. Dr. Naylor confirmed that outside the peer review process "nothing ever happened with [him] and Dr. Zwiacher that in any way gave [him] concern or raised an issue regarding [Dr. Zwiacher's] patient care with [him] personally." And because his familiarity with Dr. Zwiacher's competency and surgical care derived from the peer review process, he could not answer questions about these topics. Mat-Su objected to questions asking Dr. Naylor to identify people with information related to concerns or complaints about Dr. Zwiacher and asking for "original sources . . . [with] information regarding Dr. Zwiacher's behavior and conduct . . . at the hospital." Dr. Naylor contended he could not divulge such information because he had acquired it through his role in the peer review process. He explained that "[a]ny complaint or issue . . . that enters the peer review or quality review system . . . falls under the [privilege's] protection" and that this applied to all complaints about Dr. Zwiacher.

         Following its unsuccessful attempts to elicit information at the depositions, the Estate filed two motions to compel disclosure from Mat-Su related to: (1) its decision to grant Dr. Zwiacher medical staff membership and (2) complaints related to Dr. Zwiacher's competency and credibility, including the identity of people possessing personal knowledge of such information.

         The superior court granted both motions in two separate discovery orders. The first discovery order, issued on April 27, 2015, granted the Estate's request to discover materials related to the decision to grant Dr. Zwiacher's application for medical staff membership. The superior court concluded that Mat-Su must disclose such materials because the Estate alleged that Dr. Zwiacher knowingly included false information in his application, and thus the materials fell within an exception to the peer review privilege. The first order further permitted the Estate to obtain all materials provided to a peer review committee that were alleged to contain knowingly false information, specifically:

testimony, documents, proceedings, records, and other evidence adduced before a review organization that are otherwise inaccessible under [the peer review privilege] if [the Estate] claims that information provided to a review organization was false and claims that the person providing the information knew or had reason to know the information was false.

         The second discovery order, issued on June 10, 2015, granted the Estate's request to obtain complaints that Mat-Su had received about Dr. Zwiacher. The superior court concluded that such complaints did not fall within the peer review privilege; though they may initiate the peer review process and later become evidence in a peer review proceeding, they are not part of such a proceeding. Thus, subject to requests for in camera review, the court instructed employees and members of the medical staff at Mat-Su with "personal knowledge" of such complaints to provide this information to the Estate "without regard to whether [they] presented such information to a peer review committee." It also instructed Mat-Su and Dr. Zwiacher to "produce all documents or records . . . regarding complaints or concerns regarding Dr. Zwiacher's conduct that were not generated by or did not originate with a peer review committee."

         Mat-Su filed an original application for review of these two discovery orders, which we granted. Dr. Zwiacher and three amici curiae - Alaska Association for Justice, Alaska State Hospital and Nursing Home Association, and Providence Alaska Medical Center - also filed briefs.^[12] While the appeal was pending, the petition for interlocutory review in Brandt was filed.

         D. Petition In Brandt v. Zwiacher

         Jon Brandt was also a patient of Dr. Zwiacher. Dr. Zwiacher performed a laparoscopic small bowel resection surgery on Brandt at Mat-Su in September 2012 (when Dr. Zwiacher still had medical staff membership). During recovery, Brandt complained of pain; the parties dispute how Dr. Zwiacher addressed Brandt's pain. Brandt was discharged from Mat-Su four days after surgery, which Brandt alleges was involuntary. Brandt claims that upon discharge, his pain worsened; he returned to Mat-Su approximately eight hours later. A CT scan was performed, which Brandt claims revealed that Dr. Zwiacher had perforated the left side of his colon during the surgery, resulting in leaking and an infection. According to Brandt, he has undergone seven additional surgeries to address the issues stemming from the surgery performed by Dr. Zwiacher.

         In September 2014, while discovery in Bolinder was still ongoing, Brandt filed suit against Dr. Zwiacher and Mat-Su. Brandt brought a medical malpractice claim against Dr. Zwiacher, alleging that Dr. Zwiacher misrepresented his skills prior to the surgery, delivered substandard medical care, created false and misleading records of Brandt's medical care following the surgery, and obtained both his medical license and his Mat-Su medical staff membership through misrepresentation and non-disclosure. Brandt also brought a negligent credentialing claim against Mat-Su based on the hospital's decision to grant and renew Dr. Zwiacher's staff membership.^[13] Brandt claimed that, given Dr. Zwiacher's professional troubles in Wisconsin and the litany of complaints regarding his conduct and standard of care while at Mat-Su, Mat-Su failed to act with reasonable diligence in vetting Dr. Zwiacher's initial application for medical staff membership and in subsequently renewing it.

         Discovery ensued, during which Mat-Su voluntarily disclosed, subject to a protective order, Dr. Zwiacher's entire 443-page credentials file, which contains all of the materials Mat-Su's credentials committee used in granting Dr. Zwiacher's initial appointment to the Mat-Su medical staff and all subsequent renewals. The file includes Dr. Zwiacher's initial application for medical staff membership at Mat-Su (the same application that had led to the first petition for review in Bolinder).^[14] The credentials file also contains confidential communications regarding Dr. Zwiacher to the Executive Committee written while his initial application was pending.

         However, the credentials file does not contain any concerns or complaints relayed to Mat-Su regarding Dr. Zwiacher after he was granted medical staff membership or regarding Mat-Su's decision to terminate Dr. Zwiacher's membership. Mat-Su explained that such materials were not part of the credentials file because the Mat-Su Medical Staff Bylaws delegated the decision to discipline or to terminate Dr. Zwiacher to the Peer Review Committee and the Executive Committee, not the credentials committee. Accordingly, "[a]ll of the documents generated after Dr. Zwiacher's appointment to the medical staff relating to complaints and concerns about him . . . are outside the credentialing process and [are instead] reported to the . . . [Peer Review Committee and Executive Committee]."

         After receiving the credentials file, Brandt sent six discovery requests to Mat-Su that form the basis of his appeal. Like the requests in Bolinder, Brandt's requests can be divided into two broad groups: (1) documents related to any complaints made about Dr. Zwiacher, the identity of individuals making and reviewing the complaints, and any action taken in response; and (2) documents and statements related to Mat-Su's decisions to renew or terminate Dr. Zwiacher's medical staff membership and the identity of individuals involved in those decisions.

         Mat-Su objected to these discovery requests, asserting that each request sought information covered by the peer review privilege.^[15] InMarch2016 Brandt moved to compel Mat-Su's responses to the discovery requests.^[16] In its opposition, with respect to the first group of requested information, Mat-Su argued that the identities both of individuals reporting complaints about Dr. Zwiacher and of individuals considering the complaints were privileged. It explained that such complaints initiated the peer review process and were directed to peer review committee members, and they were thus part of the committee proceedings. Regarding the second group of requested information, Mat-Su conceded that it had not produced "the files and meeting minutes of the [Peer Review Committee] and the [Executive Committee], the purpose of which was to review the quality of care provided by Dr. Zwiacher at the hospital subsequent to his obtaining privileges," but argued these materials were privileged. Mat-Su explained that, other than the credentials file and this privileged material, it possessed "no other documented communication relating to Dr. Zwiacher's renewal or termination."

         In August 2016 the superior court granted Brandt's motion to compel and ordered production of all the information sought in the six production requests. The court reasoned that the names of the individuals making complaints about Dr. Zwiacher and the content of those complaints were not privileged because they were based on the personal knowledge of individuals not acting in the capacity of peer review committee members. The superior court thus concluded that Mat-Su had failed to meet its burden of establishing that the discovery requests fell within the scope of the privilege and accordingly ordered Mat-Su to produce the requested materials. The superior court's analysis appears to have considered only one group of discovery requests (relating to complaints) and not the other (relating to Mat-Su's credentialing decisions). However, it ultimately compelled disclosure of all requested information. Mat-Su and Dr. Zwiacher jointly petitioned for interlocutory review of the superior court's order, and we granted the petition.

         III. STANDARD OF REVIEW

         We generally review discovery rulings for abuse of discretion, "but whether a privilege applies is a question of law we review independently."^[17] Here, the scope of the privilege is codified in a statute.^[18] When interpreting statutes, we apply our independent judgment, ^[19] adopting the "rule of law that is most persuasive in light of precedent, reason, and policy."^[20]

         IV. DISCUSSION

         A. Alaska Statute 18.23.030 Provides Robust Protections For The Medical Peer Review Process.

         This case requires us to interpret the scope of the medical peer review privilege in the context of a wrongful death action and a medical malpractice claim against a surgeon, and a negligent credentialing claim against the surgeon's hospital. The privilege, codified in AS 18.23.030, contains two subsections relevant to this case. The first, subsection (a), sets out the scope of the privilege and provides a specific limitation on it. The second, subsection (b), outlines two ...