BOLGER, Justice.
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.
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.
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 for malpractice insurance."
Alaska's medical peer review privilege statute, AS 18.23.030, was enacted in 1976 as part of a broad, comprehensive bill intended to address the lack of malpractice insurance available to Alaska doctors.
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.
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.
In 2013 we granted the petition and reversed the denial of the motion to compel.
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
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:
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.
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.
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).
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
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.
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.
We generally review discovery rulings for abuse of discretion, "but whether a privilege applies is a question of law we review independently."
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 exceptions where the privilege does not apply. Aside from our 2013 limited order, we have never considered the scope of either subsection.
This case thus requires interpretation of the peer review statute. "Interpretation of a statute begins with its text."
Subsection (a) outlines the scope of the peer review privilege in three sentences. The first sentence protects from discovery "all data and information acquired by a review organization in the exercise of its duties and functions."
The final sentence of AS 18.23.030(a) limits the scope of the privilege defined in the first two sentences; the privilege does not extend to "original sources" or to "matters within [a] person's knowledge" even if the person served on a review organization or testified during a proceeding:
Subsection (a) thus sets out three conditions that a piece of evidence must satisfy for the privilege to apply. First, the peer review committee from which the evidence is sought must be a "review organization." The parties in both cases appear to concede that the Peer Review Committee and the Executive Committee both fall within the statutory definition of "review organization."
Both the Estate and Brandt seek information that Mat-Su possesses regarding complaints about Dr. Zwiacher, including the identities of individuals with personal knowledge of such complaints. The superior court in each case compelled Mat-Su to disclose this information. In Bolinder the superior court instructed Mat-Su employees and medical staff members 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 ordered Mat-Su and Dr. Zwiacher to "produce all documents or records sought by the [Estate] regarding complaints or concerns regarding Dr. Zwiacher's conduct that were not generated by or did not originate with a peer review committee." In doing so the court effectively required Dr. Naylor to disclose complaints about Dr. Zwiacher that he had received from others in his capacity as the Executive Committee president, which counsel for the Estate had tried to elicit unsuccessfully during Dr. Naylor's deposition. Similarly in Brandt, the superior court ordered Mat-Su to produce materials relating to complaints regarding Dr. Zwiacher's competency and credibility, the identity of the individuals making and reviewing the complaints, and any action taken in response. In each case the superior court reasoned that materials regarding such complaints fell outside the privilege because, though they may initiate the peer review process and later become evidence in a peer review proceeding, they are based on observations occurring in the normal course of rendering medical care and preceding the commencement of peer review.
Exercising our independent judgment, we conclude that the plain language of AS 18.23.030(a) supports a broader construction of the privilege that protects complaint-related materials contained in peer review committee files, even if those materials were not generated by the peer review committee but rather originated outside the peer review process. In reaching this conclusion we are mindful that an evidentiary privilege should be construed narrowly, but we conclude that the text of AS 18.23.030(a) does not support a narrower interpretation of the peer review privilege than that which we reach here.
Complaint-related materials contained in peer review committee files, the identities of the individuals reporting and reviewing the complaints, and any internal action taken in response satisfy the requirements for the privilege to apply. First, these materials are "acquired by a review organization in the exercise of its duties and functions."
Moreover, this acquisition was "in the exercise of [the committees'] duties and functions." One statutorily defined duty and function of a review organization is "evaluating and improving the quality of health care
Likewise, complaints and concerns directed to Dr. Naylor are also protected as information acquired by a review organization. Dr. Naylor is the president of the Executive Committee and testified in his deposition that such complaints are the initial step in the peer review process and initiate that process. Moreover, the Mat-Su Medical Staff Bylaws provide that "[a]ny person" can report to a medical staff member "information... about the conduct, performance, or competence" of a medical staff member, and indicate that such reports are the first step in the Executive Committee peer review process. The president of the Executive Committee then reviews the information and can elect to initiate "an investigation or action" against the medical staff member. Accordingly, complaints about Dr. Zwiacher that Dr. Naylor received from other Mat-Su employees and medical staff members are "information acquired by a review organization in the exercise of its duties and functions" because receipt of such information is the preliminary step in commencing the peer review process.
Brandt and the Estate counter that Mat-Su must nevertheless provide the materials they seek because the privilege specifically excludes from protection "[i]nformation, documents, or records otherwise available from original sources" or matters within an individual's "person[al] knowledge," even if those materials were presented during or were the subject of testimony at review organization proceedings.
Other jurisdictions with peer review statutes like AS 18.23.030 have similarly construed the privilege so that materials may be obtained only from the original source. For example, Minnesota's peer review statute contains a limitation allowing discovery of original source materials, which is worded nearly identically to Alaska's limitation.
South Carolina's original source limitation is also worded very similarly to that of Alaska's peer review statute.
These cases from jurisdictions with similar peer review statutes bolster our interpretation of the original source limitation in Alaska's peer review statute. We interpret this limitation to permit discovery of original source information only from the original source or the individual with personal
Having established the scope of the peer review privilege outlined in AS 18.23.030(a), we now reverse in part the superior court's June 2015 discovery order in Bolinder. We affirm the portion of the order requiring Mat-Su medical staff to answer questions based on their personal knowledge. However, the Estate may not ask questions about staff knowledge of review proceedings. We reverse the portion of the order compelling Mat-Su to provide peer review materials about complaints or concerns regarding Dr. Zwiacher's conduct. To the extent that responsive materials are contained in peer review committee files, the Estate may not obtain such information from Mat-Su even if the materials originated from outside knowledge or were generated based on personal knowledge.
We also reverse the superior court's order in Brandt compelling Mat-Su to respond to Brandt's request for production 2 and interrogatories 3 and 10. Each of these three discovery requests similarly seek privileged information regarding complaints about Dr. Zwiacher, the identity of individuals reporting and reviewing the complaints, documents relating to those complaints, and actions taken in response to the complaints. To the extent all responsive materials and information are contained in peer review committee files, this information is privileged. Brandt may nevertheless attempt to obtain this information from original sources outside the peer review process or from individuals with personal knowledge of Dr. Zwiacher's conduct.
Alaska Statute 18.23.030(b) provides two exceptions to the peer review privilege outlined in subsection (a). In full, subsection (b) provides:
The parties appear to agree that the first exception — which grants a "health care provider" access to materials otherwise privileged under subsection (a) when the provider "claims that denial is unreasonable"
The Estate and Brandt argue that the false information exception applies
We base our interpretation of the false information exception on two aspects of the peer review statute. First, we must read the exceptions to the peer review privilege in subsection (b) in pari materia with other sections of the peer review statute. Under the in pari materia canon of statutory construction, we construe statutory provisions "enacted at the same time, or deal[ing] with the same subject matter" together.
Another provision, AS 18.23.020, limits liability for members of a review organization. It provides that members are shielded from liability arising from the action or recommendation of a review organization as long as they acted based on "the reasonable belief that the action or recommendation is warranted by facts known to the person or to the review organization" and took "reasonable efforts to ascertain the facts upon which the review organization's action or recommendation is made."
Second, the legislative history of the peer review statute also supports this limitation on the scope of the false information exception. The legislative history of the medical malpractice insurance bill as a whole repeatedly emphasizes the legislature's concern with the dual goals of (1) increasing the availability of affordable medical malpractice insurance and
The report recognized that the dual goals were intertwined — to decrease the cost and increase the availability of malpractice insurance, there needed to be a culture of self-policing in the medical profession.
Other relevant pieces of legislative history also emphasize limiting defamation liability for those who participate in and provide information to review organizations. At the same time, these materials fail to mention any exception to the peer review privilege. A sectional analysis of the medical malpractice insurance bill performed by one of the bill's sponsors includes a brief description of the portion of the bill that ultimately became AS 18.23. The description simply states that the peer review statute "[l]imits liability for persons providing information to a review organization and for members of a review organization" and "[p]rovides that records of a review organization are immune from discovery in a suit."
The legislative history's emphasis on limiting defamation liability and decreasing the cost of malpractice insurance — coupled with its silence with regard to any exception to the peer review privilege — counsels in favor of construing any exception to the privilege narrowly. Although the legislative history of the medical malpractice insurance bill admittedly contains little information specific to the peer review privilege or its exceptions, we conclude that the broad aims of the bill that we have just distilled should guide our interpretation of this exception. If the legislature had intended to establish a widely available exception to the privilege — i.e., one available to any plaintiff alleging the provision of false information to a review organization, as the Estate and Brandt urge — it is likely that the legislative history would include at least some discussion of this exception. But no such mention appears. Instead, the drafters of the medical malpractice bill focused on shielding participants in the peer review process from liability in order to foster a culture of self-policing and increase the affordability and availability of malpractice insurance. Allowing any plaintiff alleging the provision of false information to obtain otherwise privileged information under this exception would undermine these goals by facilitating malpractice suits and deterring candor in
We therefore reverse the April 2015 discovery order in Bolinder and the August 2016 order in Brandt. Both orders permit discovery of materials related to Mat-Su's decision to grant, renew, suspend, or terminate Dr. Zwiacher's medical staff membership. The false information exception does not apply in either of these cases and thus does not allow discovery from Mat-Su's peer review committees of materials related to the decision to grant, renew, suspend, or terminate Dr. Zwiacher's credentials at Mat-Su. But we again note that the Estate and Brandt may seek discovery of such information and materials from alternative sources outside the peer review process.
We REVERSE the April 27, 2015 discovery order in Bolinder and the August 24, 2016 order in Brandt. We AFFIRM in part and REVERSE in part the June 10, 2015 discovery order in Bolinder as detailed above. We REMAND for further proceedings consistent with this opinion.
Minn. Stat. § 145.64(1) (2017).
S.C. Code Ann. § 40-71-20(A) (2018).
