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 ...