DAVIS, Justice.
The petitioners herein, Wheeling Hospital, Inc.; David A. Ghaphery, M.D.; and A.D. Ghaphery Professional Association (collectively, "Wheeling Hospital"), seek a writ of prohibition to preclude the enforcement of an order entered February 26, 2015, by the Circuit Court of Ohio County. By that order, the circuit court directed Wheeling Hospital to disclose to the respondent herein, Stephanie Mills ("Ms. Mills"), various documents it claimed to be subject to the peer review privilege. Before this Court, Wheeling Hospital asserts that the documents ordered to be disclosed are protected by the peer review privilege set forth in W. Va.Code § 30-3C-3 (1980) (Repl. Vol. 2015).
This case originated in 2011 when Ms. Mills consulted with Dr. Ghaphery for treatment of a medical condition. On October 13, 2011, Ms. Mills had a thyroidectomy,
Ms. Mills thereafter filed suit in the Circuit Court of Ohio County against the petitioners herein, Dr. Ghaphery; A.D. Ghaphery Professional Association; and Wheeling Hospital, Inc., asserting claims for medical negligence; lack of informed consent; and negligent credentialing. Ms. Mills also sought discovery from the named defendants, including documents regarding Dr. Ghaphery's surgeries that he had performed at Wheeling Hospital, and whether such procedures had been accompanied by complications or infections or whether those patients subsequently required readmission to the hospital. Wheeling Hospital failed to respond to Ms. Mills' discovery requests. Ultimately, Ms. Mills filed a motion to compel, which the circuit court granted, ordering Wheeling Hospital to produce a privilege log of the documents it claimed to be exempt from disclosure. The parties reached agreement regarding disclosure of certain of the documents, but approximately 350 documents remained in dispute.
The circuit court then conducted an in camera review of the remaining disputed documents, which Wheeling Hospital claimed were protected by the peer review privilege,
The court additionally relied upon Ms. Mills' representations that the subject documents satisfied the "original source" exception to the peer review privilege because they "were not created solely for Wheeling Hospital[`]s crediting committee but are otherwise
Following this adverse ruling, Wheeling Hospital requests this Court to issue a writ of prohibition to prevent the circuit court from enforcing its February 26, 2015, disclosure order.
In the instant proceeding, Wheeling Hospital requests this Court to issue a writ of prohibition. As an extraordinary remedy, we have cautioned that we reserve such relief for exceptional cases. See State ex rel. Suriano v. Gaughan, 198 W.Va. 339, 345, 480 S.E.2d 548, 554 (1996) ("Mandamus, prohibition and injunction against judges are drastic and extraordinary remedies. . . . As extraordinary remedies, they are reserved for really extraordinary causes." (internal quotations and citations omitted)). Therefore, "[a] writ of prohibition will not issue to prevent a simple abuse of discretion by a trial court. It will only issue where the trial court has no jurisdiction or having such jurisdiction exceeds its legitimate powers." Syl. pt. 2, State ex rel. Peacher v. Sencindiver, 160 W.Va. 314, 233 S.E.2d 425 (1977). Accord Syl. pt. 1, in part, Hinkle v. Black, 164 W.Va. 112, 262 S.E.2d 744 (1979) ("[T]his Court will use prohibition . . . to correct only substantial, clear-cut, legal errors plainly in contravention of a clear statutory, constitutional, or common law mandate which may be resolved independently of any disputed facts and only in cases where there is a high probability that the trial will be completely reversed if the error is not corrected in advance."), superseded by statute on other grounds as stated in State ex rel. Thornhill Grp., Inc. v. King, 233 W.Va. 564, 759 S.E.2d 795 (2014). In this vein, we typically have found challenges to discovery orders involving potentially privileged material to constitute such an exceptional case. See, e.g., Syl. pt. 3, State ex rel. United Stated Fid. & Guar. Co. v. Canady, 194 W.Va. 431, 460 S.E.2d 677 (1995) ("When a discovery order involves the probable invasion of confidential materials that are exempted from discovery under Rule[s] 26(b)(1) and (3) of the West Virginia Rules of Civil Procedure, the exercise of this Court's original jurisdiction is appropriate.").
When ruling on a petition for a writ of prohibition, our determination of the merits of the petition is guided by the multi-faceted analysis adopted by our prior holding in Syllabus point 4 of State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996):
In light of this standard, we proceed to consider the parties' arguments.
At issue in the case sub judice is whether certain documents are subject to disclosure or whether they are protected by the peer review privilege; HIPAA's privacy concerns; or relevancy considerations. We begin by considering the peer review privilege.
Wheeling Hospital first contends that the subject documents are exempted from disclosure by the West Virginia peer review privilege. In support of its argument, Wheeling Hospital asserts that the documents ordered to be disclosed contain confidential information from Dr. Ghaphery's credentialing file and that such disclosure will have a "chilling effect" on the peer review process, itself. Citing Young v. Saldanha, 189 W.Va. 330, 431 S.E.2d 669 (1993). Wheeling Hospital further argues that this Court's prior precedent prohibits the disclosure of documents considered or generated by a hospital's credentialing committee that evaluates an application or a request to renew a physician's staff privileges, and, thus, those documents coming within this category are exempt from disclosure. Citing State ex rel. Charles Town Gen. Hosp. v. Sanders, 210 W.Va. 118, 125-26, 556 S.E.2d 85, 92-93 (2001). Finally, Wheeling Hospital contends that the subject documents are protected by the peer review privilege insofar as they "are used by the Hospital for quality assurance, monitoring and control and are considered by the Department of Medical Affairs/Credentialing for appointment/reappointment purposes."
Ms. Mills responds that the documents in issue were not created solely for the credentialing process but rather encompass quality control information that the Hospital collects and that can be queried at any time. With specific respect to the reappointment profiles, Ms. Mills contends that the data comprising these records is collected and maintained by the Hospital because it is required by law to do so and to report such information to its regulatory body and the West Virginia Board of Medicine for physician licensing purposes. As for the summary reports, procedure totals, general surgery interventions, physician specific reports, and remaining categories of documents, Ms. Mills suggests that such reports likely were not generated solely for the Hospital's credentialing process, but rather were created as business records, for quality control reasons, to satisfy regulatory obligations, to gather claims denial information from insurance companies, and for similar purposes. Thus, Ms. Mills argues, these documents were not created exclusively for or by the credentialing committee, did not originate in that body, and are available from original sources extraneous to the peer review process. Finally, Ms. Mills asserts that Wheeling Hospital has not fulfilled its burden of demonstrating good cause sufficient to preclude the documents' disclosure pursuant to either Rule 26(c) of the West Virginia Rules of Civil Procedure or State ex rel. Shroades v. Henry, 187 W.Va. 723, 421 S.E.2d 264 (1992).
The peer review privilege has been adopted by statute in this State and generally protects peer review proceedings conducted by a review organization. We previously have observed that "[t]he enactment of West Virginia Code §§ 30-3C-1 to -3 (1993) very clearly evinces a public policy encouraging health care professionals to monitor the competency and professional conduct of their peers in order to safeguard and improve the quality of patient care." Syl. pt. 2, Young v. Saldanha, 189 W.Va. 330, 431 S.E.2d 669 (1993). Accord Mahmoodian v. United Hosp. Ctr., Inc., 185 W.Va. 59, 65, 404 S.E.2d 750, 756 (1991). See also State ex rel. Shroades v. Henry, 187 W.Va. 723, 727, 421 S.E.2d 264, 268 (1992) ("The peer review privilege represents a legislative choice between medical staff candor and the plaintiff's access to evidence." (footnote omitted)); Daily Gazette Co., Inc. v. West Virginia Bd. of Med., 177 W.Va. 316, 322, 352 S.E.2d 66, 71 (1986) ("[I]t seems evident that the legislature
In recognizing this statutory privilege, the Legislature has defined "peer review" as "the procedure for evaluation by health care professionals of the quality and efficiency of services ordered or performed by other health care professionals, including practice analysis, inpatient hospital and extended care facility utilization review, medical audit, ambulatory care review, claims review and patient safety review." W. Va.Code § 30-3C-1 (2004) (Repl. Vol. 2015). Additionally,
Id.
The statutory peer review privilege, itself, is set forth in W. Va.Code § 30-3C-3 (1980) (Repl. Vol. 2015), and provides as follows:
Id. Interpreting this statutory language, we previously have held that
Syl. pt. 3, State ex rel. Shroades v. Henry, 187 W.Va. 723, 421 S.E.2d 264. In other words, the privilege allows some documents that are considered during the peer review process to be disclosed, provided they come within the provision's noted exceptions:
Syl. pt. 4, State ex rel. Brooks v. Zakaib, 214 W.Va. 253, 588 S.E.2d 418 (2003).
Furthermore, we have recognized that the definition of "review organization," itself, provides additional guidance as to the scope of the privilege. In this regard, we specifically have held that
Syl. pt. 5, State ex rel. Charles Town Gen. Hosp. v. Sanders, 210 W.Va. 118, 556 S.E.2d 85 (2001). In accordance with this scope of the privilege, then, it necessarily follows that "[a]n application for the issuance or renewal of staff privileges that is created solely for consideration by a hospital credentialing committee is protected by the health care peer review privilege pursuant to W. Va. Code § 30-3C-3 (1980) (Repl. Vol. 1998)." Syl. pt. 8, Sanders, 210 W.Va. 118, 556 S.E.2d 85.
However, "[b]lanket assertions of privilege are generally not sufficient to invoke the peer review privilege." Thomas J. Hurney, Jr. & Rob J. Aliff, Medical Professional Liability in West Virginia, 105 W. Va. L. Rev. 369, 444 (2003). Rather, a party wishing to avail him/herself of the protections afforded by the peer review privilege must prove it applies to the documents he/she seeks to shield from discovery. "The determination of which materials are privileged under W. Va.Code, 30-3C-1 [1975] et seq. is essentially a factual question[,] and the party asserting the privilege has the burden of demonstrating that the privilege applies." Syl. pt. 2, Shroades, 187 W.Va. 723, 421 S.E.2d 264.
While these authorities all provide significant guidance as to the precise parameters of the peer review privilege, the facts of the case sub judice clearly demonstrate that this black and white line of demarcation is tinged with many, many shades of gray uncertainty. Although the party asserting the protections afforded by the privilege bears the burden of demonstrating its applicability by "[m]ore
It goes without saying that documents using data that is generated exclusively for or by a peer review organization for its sole use are protected by the peer review privilege. Moreover, "[m]aterial that originates in a review organization remains privileged even if held by a non-review organization." Shroades, 187 W.Va. at 728, 421 S.E.2d at 269 (footnote omitted). Similarly, documents that contain mental impressions, analyses, and/or work product of the review organization are exempt from disclosure. Documents coming within this "clearly privileged" category would include the credentialing files we found to be protected in Sanders. See Syl. pt. 8, Sanders, 210 W.Va. 118, 556 S.E.2d 85.
On the other end of the spectrum are documents that are clearly subject to disclosure because they were not generated as part of the peer review process or because the peer review statute, itself, specifically exempts them from the rigors of the privilege. Thus, "material that originates in a non-review organization does not become privileged after presentation to a review organization." Shroades, 187 W.Va. at 728, 421 S.E.2d at 269. Similarly, information considered during the peer review process is not privileged if it either is available from original sources extraneous to the peer review process or discoverable because the document's claim of privilege has been waived. Accord Syl. pt. 4, State ex rel. Brooks v. Zakaib, 214 W.Va. 253, 588 S.E.2d 418. See also Sanders, 210 W.Va. at 126, 556 S.E.2d at 93 ("[R]ecords, documents, and the like that are available from original sources extraneous to the credentialing process are not privileged and, thus, are subject to discovery." (citations omitted)); Syl. pt. 3, Young, 189 W.Va. 330, 431 S.E.2d 669 ("To effect a waiver of the privilege of confidentiality which attends information and records properly the subject of health care peer review under West Virginia Code §§ 30-3C-1 to -3 (1993), the Legislature has required that an individual must formally indicate his intent to waive this confidentiality by executing a valid waiver."). Cf. Syl. pt. 3, Daily Gazette Co. v. West Virginia Bd. of Med., 177 W.Va. 316, 352 S.E.2d 66 ("To the extent that any hospital peer review information is brought before the West Virginia Board of Medicine under W. Va.Code, 30-3-14(o) (1986), after probable cause to substantiate charges of disciplinary disqualification is found, the public is entitled to such information."). But see Syl. pt. 5, Brooks, 214 W.Va. 253, 588 S.E.2d 418 ("Where the privilege encapsulating peer review materials has been lifted because such information is available from an original source or the privilege has been waived, such materials may still be rendered inaccessible if the tribunal in which such information was introduced or reviewed has entered a protective order in accordance with W. Va.Code § 30-3C-3 (1980) (Repl. Vol. 1998) to guard against their disclosure.").
The difficulty of distinction arises when documents are an amalgamation of the two foregoing categories. Which category contains documents that are considered by a peer review organization but that have not necessarily been created specifically for or by that entity? What about compilations of existing data that are used by a peer review organization? The answer to these questions is simple: "the origin of the document determines if it is privileged." Shroades, 187 W.Va. at 728, 421 S.E.2d at 269. "In order to determine whether the [peer review] privilege. . . applies to a particular circumstance,
Board of Registration in Med. v. Hallmark Health Corp., 454 Mass. 498, 509-10, 910 N.E.2d 898, 907 (2009) (internal quotations and citations omitted).
Therefore, the test to apply to determine whether the peer review privilege shields a particular document from disclosure is whether the document was created exclusively by or solely for a review organization.
Powell v. Community Health Sys., Inc., 312 S.W.3d 496, 510 (Tenn.2010) (citations omitted).
Where, however, the peer review committee merely uses information that has been generated or supplied by a source external to the committee, such information is discoverable from the original, external sources, but not from the peer review committee, itself. See W. Va.Code § 30-3C-3; Syl. pt. 4, Brooks, 214 W.Va. 253, 588 S.E.2d 418; Syl. pt. 3, Shroades, 187 W.Va. 723, 421 S.E.2d 264. In this regard, the privilege
Irving Healthcare Sys. v. Brooks, 927 S.W.2d 12, 18 (Tex.1996). Stated otherwise,
In re Living Ctrs. of Texas, Inc., 175 S.W.3d 253, 260 (Tex.2005) (citations omitted).
Large v. Heartland-Lansing of Bridgeport Ohio, LLC, 995 N.E.2d 872, 884-85 (Ohio Ct.App.2013) (citations omitted). In other words,
Id., 995 N.E.2d at 883-84 (internal quotations and citations omitted).
It bears repeating, though, that "documents that are otherwise discoverable do not become privileged merely because they have been dipped in the waters of a peer review committee file." Large, 995 N.E.2d at 886. Accord Smith v. Cleveland Clinic, 197 Ohio App.3d 524, 532, 968 N.E.2d 41, 47 (2011) ("[M]erely labeling a committee or a document `peer review' is insufficient to meet the burden of proving that the privilege applies to the requested information."); In re Living Ctrs. of Texas, Inc., 175 S.W.3d at 257 ("[S]imply passing a document through a peer review committee does not make it privileged." (citation omitted)). Neither is "[t]he peer-review privilege . . . a generalized cloak of secrecy over the entire peer-review process. If all materials viewed and utilized by review committees were deemed undiscoverable, a hospital could never be held accountable for any negligent act within the purview of the committee." Smith, 197 Ohio App.3d at 529, 968 N.E.2d at 45 (internal quotations and citations omitted). Rather,
In re Living Ctrs., 175 S.W.3d at 260 (internal quotations and citations omitted). Therefore, "[t]he fact that copies of certain material may have been provided to a committee does not extend the protection afforded committee proceedings, and committee generated records, to material generated outside of the committee." Bailey v. Manor Care of Mayfield Heights, 2013-Ohio-4927, ¶ 24, 4 N.E.3d 1071, 1078 (Ct.App.2013) (internal quotations and citation omitted).
Above all, however,
Large, 995 N.E.2d at 884 (citations omitted).
Consolidating these various principles into a single, cohesive framework to provide precise parameters to courts reviewing allegedly privileged documents, we therefore hold that, to determine whether a particular document is protected by the peer review privilege codified at W. Va.Code § 30-3C-3 (1980) (Repl. Vol. 2015), a reviewing court must ascertain both the exact origin and the specific use of the document in question. Documents that have been created exclusively by or for a review organization, or that originate therein, and that are used solely by that entity in the peer review process are privileged. However, documents that either (1) are not created exclusively by or for a review organization, (2) originate outside the peer review process, or (3) are used outside the peer review process are not privileged. We further hold that, where documents sought to be discovered are used in the peer review process but either the document, itself, or the information contained therein, is available from an original source extraneous to the peer review process, such material is discoverable from the original source, itself, but not from the review organization that has used it in its deliberations. Finally, we hold that the party seeking the protections of the peer review privilege bears the burden of establishing its applicability by more than a mere assertion of privilege.
Applying these holdings to the facts of the case sub judice, we are left with the definite and firm conviction that the circuit court clearly erred when it conducted its in camera review because several of the challenged documents at issue herein are protected by the peer review privilege. A mere cursory review of the subject documents shows that several of the documents are protected as material that has been created specifically for and that is used exclusively by the peer review committee: Dr. Ghaphery's applications for renewal of his staff privileges at Wheeling Hospital. See Syl. pt. 8, Sanders, 210 W.Va. 118, 556 S.E.2d 85. In particular, Document Numbers 168-170, 297-298, 650-651, and 817 are all applications for the renewal of Dr. Ghaphery's staff privileges; as such, they are protected by the peer review privilege and should not have been ordered to be disclosed to Ms. Mills. Accordingly, we grant the requested writ of prohibition as moulded and prohibit the circuit court from enforcing that portion of its order that required Wheeling Hospital to disclose these four documents in discovery.
Further review of the challenged documents leads to the conclusion that still others, that the circuit court has ordered to be disclosed, are protected by the peer review privilege because they come within the statutory definition of the purpose for which a review organization may be established and are materials that the peer review committee either created or requested be generated for the committee's exclusive use. See W. Va.Code § 30-3C-1. Within this category, two distinct types of documents emerge: (1) documents that "[e]valuat[e] and improv[e] the quality of health care rendered" and (2) materials that "establish[ ] and enforc[e] guidelines designed to keep within reasonable bounds the cost of health care." Id. Documents that fall within the quality of health care classification include the committee's analysis of physicians' procedures and their outcomes. As quality control documents, Document Numbers 214, 224-225, 226-227, 234-242, 347, 354-365, 471-474, 476, 478-485, 546, 550-552, 218-219, and 489-490 are protected by the peer review privilege. Moreover, still other documents involve the
With regard to the remaining challenged documents, we are unable to determine whether they are protected by the peer review privilege because we lack the crucial information determinative of the applicability of the privilege: (1) the origin of the documents, i.e., whether they were created exclusively for or by a peer review committee, and (2) their specific use, i.e., whether they were used solely by the peer review committee. See Shroades, 187 W.Va. at 729-30, 421 S.E.2d at 270-71 (indicating that peer review privilege log should contain information regarding document's "source and reason for creation"). Without these crucial pieces of information, we are "`greatly at sea without a chart or compass.'" State ex rel. HCR Manorcare, LLC v. Stucky, 235 W.Va. 677, 687, 776 S.E.2d 271, 281 (2015) (quoting Workman v. Workmen's Comp. Comm'r, 160 W.Va. 656, 662, 236 S.E.2d 236, 240 (1977)).
On the one hand, it could be said that the party bearing the burden of establishing the privilege's applicability has failed to carry its burden. See Syl. pt. 2, Shroades, 187 W.Va. 723, 421 S.E.2d 264. On the other hand, while this Court previously has instructed parties as to the information that should be included in a privilege log attempting to establish the applicability of the peer review privilege, we have not specified that both (1) the origin of the document, with specific information as to whether it was created solely for or by a review committee, and (2) the document's use, with disclosures as to whether or not it was used exclusively by such committee, also are vital details necessary for a determination of privileged status. In this regard, we previously have recommended only that "the party claiming the document is privileged should identify the document by name, date, custodian, source and reason for creation." Shroades, 187 W.Va. at 729, 421 S.E.2d at 270. From the foregoing authorities and our holdings herein, it is apparent that a privilege log seeking to protect documents under the peer review privilege should also include this additional, critical information. Therefore, we hold that a party wishing to establish the applicability of the peer review privilege, set forth at W. Va.Code § 30-3C-3 (1980) (Repl. Vol. 2015), should submit a privilege log which identifies each document for which the privilege is claimed by name, date, and custodian. The privilege log also should contain specific information regarding (1) the origin of each document, and whether it was created solely for or by a review committee, and (2) the use of each document, with disclosures as to whether or not the document was used exclusively by such committee. Finally, the privilege log should provide a description of each document and a recitation of the law supporting the claim of privilege.
Insofar as Wheeling Hospital's privilege log provided information about the "author or origin of document," we cannot ascertain, from the use of the disjunctive "or,"
For the foregoing reasons, we grant as moulded the requested writ of prohibition. The Circuit Court of Ohio County is hereby prohibited from enforcing its order of February 26, 2015, insofar as it requires Wheeling Hospital to disclose the documents referenced therein. We find Document Numbers 168-170, 297-298, 650-651, 817, 214, 224-225, 226-227, 234-242, 347, 354-365, 471-474, 476, 478-485, 546, 550-552, 218-219, 489-490, 1000, 1001, and 1002 to be protected by the peer review privilege set forth in W. Va.Code § 30-3C-3 (1980) (Repl. Vol. 2015). With regard to the remaining documents, we find that the existing privilege log lacks sufficient detail to permit a definitive determination as to whether the peer review privilege shields such documents from disclosure. Accordingly, Wheeling Hospital is directed to submit a revised privilege log containing the information identified in the body of this opinion, and, upon receipt thereof, the circuit court is instructed to conduct an in camera review to determine whether the remaining documents addressed in its prior opinion are or are not protected by the statutory peer review privilege.
Writ granted as moulded.
Wheeling Hospital additionally contends that the subject documents are protected by the non-disclosure provisions of the Health Insurance Portability and Accountability Act ("HIPAA") contained in 45 C.F.R. § 164.514(b)(2)(i) (2013) (Repl. Vol. 2014), and, further, that such documents are not relevant under rules governing evidence and discovery. In light of our disposition of the case, we deem further consider of these arguments to be premature in the current posture of the case sub judice. See infra note 9.