April 21, 2015
JOHN KRUSAC, Personal Representative of the ESTATE OF DOROTHY KRUSAC, Plaintiff-Appellee,
COVENANT MEDICAL CENTER, INC., d/b/a COVENANT MEDICAL CENTER-HARRISON, d/b/a COVENANT HEALTHCARE, Defendant-Appellant
Argued January 13, 2015.
For KRUSAC JOHN PERSONAL REPRESENTATIVE, Plaintiff-Appellee: CARLENE J REYNOLDS, SOUTHFIELD, MI.
For COVENANT MEDICAL CENTER INC, Defendant-Appellant: THOMAS R HALL, EAST LANSING, MI.
Chief Justice: Robert P. Young, Jr. Justices: Stephen J. Markman, Mary Beth Kelly, Brian K. Zahra, Bridget M. McCormack, David F. Viviano, Richard H. Bernstein. BEFORE THE ENTIRE BENCH (except BERNSTEIN, J.). BERNSTEIN, J., took no part in the decision of this case.
[497 Mich. 253] Per Curiam.
In this interlocutory appeal, we are once again asked to consider the scope of the peer review privilege found in MCL 333.20175(8) and MCL 333.21515 of the Public Health Code, MCL 333.1101 et seq. Specifically, we must decide whether the trial court erred by ordering production of the objective facts contained in an incident report authored by an employee of defendant Covenant Healthcare. The trial court's decision was based on Harrison v Munson Healthcare, Inc, 304 Mich.App. 1, 851 N.W.2d 549 (2014), which held, in part, that the peer review privilege does not protect objective facts gathered contemporaneously with an event.
We hold that § § 20175(8) and 21515 do not contain an exception to the peer review privilege for objective facts. As a result, this portion of Harrison was wrongly decided. In this case, the trial court erred by relying on Harrison to order production of the objective-facts portion of the incident report. Therefore, we vacate the trial court's May 8, 2014 order and remand for further proceedings.
[497 Mich. 254] I. FACTS AND PROCEDURAL HISTORY
In September 2008, Pramod K. Sanghi, M.D., performed a cardiac catheterization on 80-year-old decedent Dorothy Krusac, successfully placing stents in Krusac's heart. Immediately following the procedure, however, Krusac began moving her legs around and rolled off the operating table. Three medical personnel were present when this happened: Deborah Colvin, R.N., Heather Gengler, R.N., and Rogers Gomez, the lab technician. According to the deposition testimony of Colvin and Gomez, they were able to catch Krusac and cradle her gently to the floor, where she came to rest on her left side. At that time, Krusac denied hitting her
head, but later complained of neck and back pain from the fall. The CT scan performed later that day showed no evidence of injury from the fall. Shortly after the surgery and fall, Krusac died.
Plaintiff John Krusac, as personal representative of the estate of Dorothy Krusac, filed a medical malpractice complaint in the Saginaw Circuit Court against defendant, alleging that Krusac died as a result of injuries sustained from the fall. During discovery, it became known that Colvin had filled out an incident report shortly after the event and submitted it to her supervisor. Plaintiff filed a motion in limine on the eve of trial, asking the court to conduct an in camera inspection of the incident report and provide plaintiff with the facts contained in it. Relying on Harrison, plaintiff argued that the facts were necessary to cross-examine the hospital staff and that it would be unethical for defendant to offer a defense inconsistent with the facts contained in the report. Defendant responded that the peer review privilege under § § 20175(8) and 21515 protected the report from discovery. After hearing oral arguments, the trial court denied plaintiff's [497 Mich. 255] motion. Plaintiff thereafter sought reconsideration, which the court granted. The court ordered defendant to produce a copy of the report for in camera review. After reviewing the report, on May 8, 2014, the trial court issued an order requiring defendant to provide plaintiff with the first page of the incident report, which contained only objective facts. The court based its decision on the Court of Appeals' recent holding in Harrison that the peer review privilege does not apply to objective facts contained in an incident report.
Defendant sought leave to appeal in the Court of Appeals, and moved for immediate consideration and a stay of the proceedings. The Court of Appeals granted immediate consideration, but denied defendant's application for leave to appeal for failure to persuade the Court of the need for immediate appellate review. The Court also denied the motion to stay the proceedings. Defendant then sought review by this Court. After granting defendant's motion to stay the trial court proceedings, we granted leave to appeal and directed the parties to address
(1) whether Harrison v Munson Healthcare, Inc, 304 Mich.App. 1, 851 N.W.2d 549 (2014), erred in its analysis of the scope of the peer review privilege, MCL 333.21515; and (2) whether the Saginaw Circuit Court erred when it ordered the defendant to produce the first page of the improvement report based on its conclusion that " objective facts gathered contemporaneously with an event do not fall within the definition of peer review privilege." [ Krusac v Covenant Med Ctr., Inc, 496 Mich. 855, 856, 847 N.W.2d 499 (2014).]
II. STANDARD OF REVIEW
This case involves a question of statutory interpretation, which we review de novo. Madugula v Taub, 496 Mich. 685, 695, 853 N.W.2d 75 (2014). As with any statutory interpretation, our goal is to give effect to the [497 Mich. 256] Legislature's intent, focusing first on the statute's plain language. Id. at 696. When the language of a statute is unambiguous, the Legislature must have intended the meaning clearly expressed, and the statute must be enforced as written. No further judicial construction is required or permitted. Id. (citation and quotation marks omitted).
The peer review privilege is a creature of statute, not the common law. See Scheutzow & Gillis, Confidentiality and Privilege of Peer Review Information:
More Imagined Than Real, 7 JL & Health 169, 181 (1992-1993) (" It is generally accepted that the privilege ascribed to peer review proceedings does not arise from any recognized common law principle, but is rather a legislative creation . . . ." ). Therefore, in assessing whether the peer review privilege applies to objective facts contained in an incident report, we must turn first to the language of the relevant statutes. See Dorris v Detroit Osteopathic Hosp Corp, 460 Mich. 26, 33, 594 N.W.2d 455 (1999).
MCL 333.21513(d) imposes a duty on hospitals to create peer review committees " for the purpose of reducing morbidity and mortality and improving the care provided in the hospital for patients." Essential to the peer review process is the candid and conscientious assessment of hospital practices. Feyz v Mercy Mem Hosp, 475 Mich. 663, 680, 719 N.W.2d 1 (2006). To encourage such an assessment by hospital staff, the Legislature has protected from disclosure the records, data, and knowledge collected for or by peer review committees. Id. at 680-681. To this end, MCL 333.20175(8) reads:
[497 Mich. 257] The records, data, and knowledge collected for or by individuals or committees assigned a professional review function in a health facility or agency, or an institution of higher education in this state that has colleges of osteopathic and human medicine, are confidential, shall be used only for the purposes provided in this article, are not public records, and are not subject to court subpoena.
Similarly, MCL 333.21515 provides:
The records, data, and knowledge collected for or by individuals or committees assigned a review function described in this article are confidential and shall be used only for the purposes provided in this article, shall not be public records, and shall not be available for court subpoena.
These statutes, and their predecessors, have been interpreted as " fully protect[ing] quality assurance/peer review records from discovery . . . ." Dorris, 460 Mich. at 40. For example, in Attorney General v Bruce, 422 Mich. 157, 164-165, 369 N.W.2d 826 (1985), we rejected the Attorney General's argument that the privilege " was intended only to protect the confidentiality of peer review proceedings from discovery in circuit court proceedings (i.e., malpractice actions) . . . ." Instead, we held that the privilege protects from disclosure records sought by the Board of Medicine and the Department of Licensing and Regulation and ordered by investigative subpoena to be produced. Id. at 173. Similarly, in In re Investigation of Lieberman, 250 Mich.App. 381, 389, 646 N.W.2d 199 (2002), the Court of Appeals held that the [497 Mich. 258] privilege protects from disclosure records sought pursuant to a search warrant in a criminal investigation. Indeed, after reviewing the language of § 21515, the court concluded that " the Legislature has imposed a comprehensive ban on the disclosure of [peer review materials.]" Id. at 387 (emphasis added).
The Court of Appeals took a more constricted view of the peer review privilege in Harrison. In that case, the plaintiff
sued a surgeon and the hospital (the defendants) after receiving a burn from a surgical instrument during surgery. At trial, the plaintiff learned that an operating room nurse had authored an incident report. The plaintiff sought to introduce the report. The defendants objected, claiming that the peer review privilege protected the report from introduction. The trial court reviewed the report at an in camera hearing and determined that the facts in the report contradicted the operating room nurse's deposition testimony. The court found that the report itself was protected by the peer review privilege but ruled that the facts contained in the report, as opposed to the conclusions drawn, should have been documented in the plaintiff's medical record and made available to the plaintiff. The court declared a mistrial and imposed sanctions totaling roughly $54,000 on the defendants and their attorney based on their presentation of a defense inconsistent with the facts contained in the report.
In a published opinion, the Court of Appeals addressed whether the peer review privilege applied to the incident report at issue. Relying heavily on caselaw from foreign jurisdictions, the panel found a distinction between " factual information objectively reporting contemporaneous observations or findings and 'records, data, and knowledge' gathered to permit an effective review of professional practices." Harrison, 304 Mich. [497 Mich. 259] App at 30. It held that " [o]bjective facts gathered contemporaneously with an event do not fall within [the peer review privilege.]" Id. at 32. It reasoned that " [t]o hold otherwise would grant risk managers the power to unilaterally insulate from discovery firsthand observations that the risk manager would prefer remain concealed" and that " [t]he peer-review statutes do not sweep so broadly." Id. at 34. The panel concluded that the facts recorded on the first page of the incident report were not privileged, but that the remainder of the incident report was protected because it reflected a deliberative review process.
However, contrary to the Harrison panel's conclusion, the peer review statutes do not contain an exception for objective facts contained in an otherwise privileged incident report. Both § § 20175(8) and 21515 protect the " records, data, and knowledge" collected for or by a peer review committee. While the words " record," " data," and " knowledge" are so common they hardly bear defining, a review of the dictionary definitions of each demonstrates that the Harrison panel's interpretation contradicts the plain language of the peer review statutes. See Spectrum Health Hosp v Farm Bureau Mut Ins Co of Mich, 492 Mich. 503, 515, 821 N.W.2d 117 (2012) (recognizing that a court " may consult dictionary definitions to give words their common and ordinary meaning" ) (citation omitted). " Record" is defined as " an account in writing or the like preserving the memory or knowledge of facts or events." Random House Webster's College Dictionary (2001) (emphasis added). " Data" is defined as " individual facts, statistics, or items of information." Id. (emphasis added). " Knowledge" [497 Mich. 260] is defined as " acquaintance with facts, truths, or principles" or " familiarity or conversance, as by study or experience." Id. (emphasis added). Because the ordinary meaning of these statutory terms plainly encompasses objective facts, we hold that objective facts are subject to the peer review privilege.
We therefore disagree with the Harrison panel's conclusion that the Legislature intended to exclude from protection objective facts contained in an otherwise peer review privileged incident report.
Plaintiff argues that an interpretation of § § 20175(8) and 21515 that protects objective facts from disclosure would conflict with MCL 333.20175(1), which requires a hospital to " keep and maintain a record for each patient, including a full and complete record of tests and examinations performed, observations made, treatments provided, and . . . the purpose of hospitalization."  However, § 20175(1) does not alter the scope of [497 Mich. 261] the peer review privilege. Whereas § § 20175(8) and 21515 pertain to a hospital's duty under MCL 333.21513(d) to create a peer review committee that collects and reviews information in an effort to reduce morbidity and mortality and improve patient care, § 20175(1) imposes on a hospital an entirely distinct and unrelated duty--to make a full and complete medical record concerning a patient's current care. Because these provisions pertain to entirely distinct duties, no conflict exists, and we cannot conclude that the Legislature intended § 20175(1) to create an exception to the peer review privilege. See Bruce, 422 Mich. at 167-169 (rejecting an argument that disclosures required by another subsection of § 20175 defeated the peer review privilege).
The Harrison panel, certain amici, and plaintiff have expressed concern that a holding that the peer review privilege applies to objective facts in an incident report " would grant risk managers the power to unilaterally insulate from discovery firsthand observations that the risk manager would prefer remain concealed." Harrison, 304 Mich.App. at 34. However, although the terms " records," " data," and " knowledge" are broad enough to include objective
facts, the scope of the privilege is not without limit. Instead, the privilege only applies to [497 Mich. 262] records, data, and knowledge that are collected for or by the committee under § § 20175(8) and 21515 " for the purpose of reducing morbidity and mortality and improving the care provided in the hospital for patients." MCL 333.21513(d). See also Dorris, 460 Mich. at 40. Moreover, while the peer review privilege may make it more difficult for a party to obtain evidence, the burden on a litigant is mitigated by the fact that he or she may still obtain relevant facts through eyewitness testimony, including from the author of a privileged incident report, and from the patient's medical record. Finally, if a litigant remains unsatisfied with the statutory [497 Mich. 263] balance struck between disclosing information to patients and protecting peer review materials, any recalibration must be done by the Legislature. See Koontz v Ameritech Servs, Inc, 466 Mich. 304, 312, 645 N.W.2d 34 (2012) (" Because the proper role of the judiciary is to interpret and not write the law, courts simply lack authority to venture beyond the unambiguous text of a statute." ).
For the reasons stated above, we reject the Harrison panel's holding that objective facts gathered contemporaneously with an event do not fall within the peer review privilege. Accordingly, we overrule Harrison to the extent that it is inconsistent with our opinion today. Instead, we hold that § § 20175(8) and 21515 make privileged all records, data, and knowledge
collected for or by a peer review committee in furtherance of its statutorily mandated purpose of reducing morbidity and mortality and improving patient care. This includes objective facts gathered contemporaneously with an event contained in an otherwise privileged incident report.
Because Harrison was wrongly decided and the trial court relied on Harrison to order production of a [497 Mich. 264] portion of the incident report, we vacate the trial court's May 8, 2014 order in its entirety. The scope of this interlocutory appeal is limited to whether the trial court erred by relying on Harrison to order production of the objective facts found in the incident report. Having answered that question, we remand to the trial court for further proceedings.
We conclude that Harrison was wrongly decided, and we overrule the portions of it that are inconsistent with this opinion. Because the trial court in the instant case erred by relying on Harrison to order production of the objective facts contained in the incident report authored by Colvin, we vacate the trial court's May 8, 2014 order and remand to the trial court for further proceedings consistent with this opinion.
Bernstein, J., took no part in the decision of this case.