MAT-SU VALLEY MEDICAL CENTER, LLC, d/b/a MAT-SU REGIONAL MEDICAL CENTER, Petitioner,
DENISE BOLINDER, as personal representative of the estate of ROBERT BOLINDER, and JOHN W. ZWIACHER M.D., Respondents. MAT-SU VALLEY MEDICAL CENTER, LLC, d/b/a MAT-SU REGIONAL MEDICAL CENTER, and JOHN W. ZWIACHER, M.D., Petitioners,
JON PAUL BRANDT, Respondent.
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.
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.
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.
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
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.
FACTS AND PROCEEDINGS
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.
The Medical Peer Review Privilege Statute And Mat-Su's
Peer Review Committees
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." 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. Nearly all hospitals employ peer review
procedures. 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.
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. 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.
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
First Petition In Bolinder v. Zwiacher
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.
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. After the superior court denied the motion
in April 2012, the Estate petitioned this court for
we granted the petition and reversed the denial of the motion
to compel. 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, 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. 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. We thus ordered Mat-Su to provide Dr.
Zwiacher's application to the Estate.
The Estate's Discovery Requests To
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
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.
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.
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.
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.
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.
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
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
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. While the appeal was
pending, the petition for interlocutory review in
Brandt was filed.
Petition In Brandt v. Zwiacher
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.
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. 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
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). The credentials file also contains
confidential communications regarding Dr. Zwiacher to the
Executive Committee written while his initial application was
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
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.
objected to these discovery requests, asserting that each
request sought information covered by the peer review
privilege. InMarch2016 Brandt moved to compel
Mat-Su's responses to the discovery
requests. 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."
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.
STANDARD OF REVIEW
generally review discovery rulings for abuse of discretion,
"but whether a privilege applies is a question of law we
review independently." Here, the scope of the
privilege is codified in a statute. When interpreting
statutes, we apply our independent judgment,  adopting the
"rule of law that is most persuasive in light of
precedent, reason, and policy."
Alaska Statute 18.23.030 Provides Robust Protections For The
Medical Peer Review Process.
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 ...